Commonwealth, Aplt v. Hackett, R.

99 A.3d 11 Pennsylvania, Appellant COMMONWEALTH

v. HACKETT, Appellee. Richard Pennsylvania. Supreme Court of Aug. 2013. Submitted Aug. 2014. Decided McDonald, Burns, Jr., Esq., Ann Kristen Esq., Hugh J. PA Office, Esq., Attorney’s Amy Zapp, District Philadelphia Pennsylva- General, for Commonwealth Attorney Office nia. D. Hack- Gelman, for Richard Philadelphia, Esq.,

Norris E. ett. TODD, EAKIN, BAER, C.J., SAYLOR,

CASTILLE, STEVENS, McCAFFERY, JJ.

OPINION Justice STEVENS. case, the Common- capital remand in this

Following our Pleas of of Common the order of the Court appeals wealth Hackett’s peti- Richard County granting Appellee Philadelphia (PCRA).1 Relief Act the Post Conviction tion pursuant “men- that he is proven has determining Upon v. in Commonwealth as defined this Court tally retarded” thus, (2005), Miller, exempt 888 A.2d 624 585 Pa. Supreme in accordance with the United States from execution 304, 122 536 U.S. S.Ct. Virginia, decision in Atkins v. Court’s (2002), court set aside PCRA 153 L.Ed.2d findings court made sentence. As Appellee’s death evidence of record are not substantial supported which borderline equating law by improperly made an error of (intellectual with mental retardation functioning vacating Ap- court’s order we reverse the PCRA disability),2 §§ 42 Pa.C.S. 9541-9546. 1. accepted by previously Although the term "mental retardation” was

2. routinely employed in decisions re- professional community and Atkins, Supreme viewing challenges the United States Court under "mental retardation” recently approved replacement of the term disability” phrase "intellectual politically with the correct more - Florida, -, diagnosis. Hall v. U.S. the identical describe (U.S.2014). 1986, 1990, The Hall Court noted 188 L.Ed.2d 1007 S.Ct. Psycho- language the American impetus the shift in its that the for the fifth implement the new term into logical decision to Association's of Mental Disorders Diagnostic and Statistical Manual edition of its acknowledge (DSM-5), May we published in 2013. While which was 572

pellee’s petition death sentence and dismiss his for collateral relief.

I. AND FACTS PROCEDURAL HISTORY charged Appellee first-degree The Commonwealth with murder, and related offenses and notified him of conspiracy, its intent to seek the death in connection with the penalty 1986 Dunne, death of old Maureen who sixteen-year brutally stabbed while she in bed with lay sleeping boyfriend, her trial, Gregory At Ogrod.3 Appellee’s 1988 Commonwealth presented evidence that orchestrated a Appellee conspiracy to kill the victims with Marvin Spence, Gray, James and Keith 31, 1986, In early Barrett. hours of morning July three men entered home Ogrod’s repeatedly and stabbed the couple and clubbed them with crowbars. Despite this unforeseen attack, Ogrod got up fought and off his assailants. Neverthe- less, Dunne died from a stab wound to the heart. As the fled, perpetrators Ogrod recognized Spence as one of his home, Appellee, attackers. who lived in knew Ogrod’s Ogrod and Dunne were in the sleeping basement and was the only brother, person, Ogrod aside from and his key who had a the home. evidence

Although showed Appellee Spence directed the conspiracy, the men Ogrod wanted killed for different reasons. Appellee’s aversion towards Ogrod developed spring Ogrod’s after brother invited to live in the home he Ogrod shared. Even though Appellee managed live there rent free and stored for his equipment landscaping and snow removal business in Ogrod’s garage, Appellee get did not along Ogrod. When Ogrod asked to move out nomenclature, change litigated we note that as this case was decided, parties experts before Hall was prior and their used the frequently distinguish learning term between disabilities mental specifically diagnose retardation in order to mental condi- circumstances, tion. To avoid particular confusion under these we will interchangeably opinion. use the terms within this underlying Appellee’s 3. The facts conviction were set forth in this Hackett, opinion appeal. Court’s on direct See Commonwealth v. (1993). Pa. 627 A.2d 719 out of his Ogrod threatened to throw July later, days if not “cool out.” Several own home he did from his bedroom to Ogrod’s belongings moved all of contrast, Spence permission. "without his the basement a drug-related dispute. killed as a result of Ogrod wanted their shared hatred for and discovered Appellee Spence Once have plan to their to they together bring worked Ogrod, killed to fruition. Ogrod hire an to murder initially sought to assassin

Appellee a contacted Torres to find Appellee Edgar first Ogrod. Torres money.” hitman “to someone off for When bump money, Appel- this task would cost him considerable asserted pay. Appellee subsequently gave lee assured Torres he would alleged the victims and met with assas- Torres photographs not find an Eventually, Appellee sins. Torres told he could job participate Appellee’s individual for the and refused and offered another hitman plan. Appellee Spence potential $5,000 Ogrod named David to kill and Dunne. While Carter plan, Appellee Spence’s to this and initially agreed Carter agree fell as the men could not through contract Carter kill the on the manner in which Carter would victims. trial,

At several witnesses connected to the attack Appellee Dunne, 31, July which occurred at 4:00 a.m. on Ogrod on Jeffrey Ogrod’s 1986. Horoschak stated that when he called him Ogrod home at 1:45 a.m. that told morning, Appellee a.m., he a ride May gave Edward testified that 3:30 asleep. Barrett, home, to a location near Spence, Gray Ogrod’s who resembled where the men met with a fourth individual and drove a truck similar to the one owned. Appellee Appellee Rosenblum, that, at 5:00 girlfriend, Wendy testified a.m., and came to Ogrod called to tell her was dead Appellee basement, through visibly shaking her apartment sweating. conduct he had facilitated

Appellee’s subsequent suggested her to tell the attack. Rosenblum claimed asked night he at her all and ordered her police apartment had been victims he had destroy to obtain and of the photographs he killed. identify to Torres to the individuals wanted given 574 that, occurred, a week after the murders

Rosenblum stated take a her she saw crowbar out of the basement of nearby conceal it in his and throw it apartment, pants, dumpster. trial,

At the conclusion of the convicted jury murder, assault, and of an conspiracy, aggravated possession instrument of crime. At the penalty hearing, jury found aggravating two circumstances as Appellee conspired pay another to kill the victims and created a risk to person grave 9711(d)(2),(5). Ogrod during § the attack. See 42 Pa.C.S. circumstances, Finding no mitigating jury Ap- sentenced 17, 1988, July to death on which pellee this Court affirmed on 30, Hackett, 226, 210, June 1993. Commonwealth v. 534 Pa. (1993). 719, A.2d 627 727 filed a PCRA on petition 14, January 1997. After the PCRA court denied the petition, affirmed, this Court and the Supreme United States Court Hackett, denied certiorari. Commonwealth v. 558 Pa. 735 (1999); A.2d Haskett v. Pennsylvania, U.S. (2000). 1178,

S.Ct. 145 L.Ed.2d 1086 Appellee filed a subsequently corpus habeas petition federal court.4 While this was petition pending, Appellee filed his second PCRA petition, seeking relief from his execution Atkins, pursuant in which Supreme U.S. Court concluded that the execution of intellectually disabled individuals consti- tutes cruel and unusual punishment Eighth under the Amend- ment.5 The Appellee’s PCRA Court dismissed it petition as felt it not Appellee’s could resolve claims while his federal habeas petition was This pending. Court reversed the PCRA court’s decision and remanded for further proceedings pursu- granted 4. The Appellee’s request penalty federal district court for a new 367, 1860, hearing pursuant Maryland, v. to Mills 486 U.S. 108 S.Ct. Price, (1988). (E.D.Pa. L.Ed.2d F.Supp.2d 100 384 Hackett v. 212 382 However, 2001). grant the Third Circuit reversed the of habeas relief Price, Supreme and the U.S. Court denied certiorari. Hackett v. 381 denied, (3rd Cir.2004), Folino, 1062, F.3d 281 Hackett v. cert. 544 U.S. 2514, 1114(2005). 125 S.Ct. 161 L.Ed.2d jurisdiction 5. We have pursuant over this claim PCRA timeliness 9545(b)(l)(iii) exception § 42 set forth in Pa.C.S. instant petition sixty days Supreme was filed within of the U.S. Court’s deci- Atkins, 20, which sion was filed on June 2002.

575 468, A.2d 473 Whitney, v. 572 Pa. 817 ant to Commonwealth jurisdiction court has (2003), held a trial in which Court petitioner’s of a during pendency petition address a PCRA federal habeas proceedings. 3, 2004, supplemental filed May Appellee

On Kentucky, v. to Batson 476 pursuant to raise a claim petition (1986) 1712, after his co- L.Ed.2d 69 90 U.S. S.Ct. a result of the a new trial as granted Spence defendant The PCRA jury selection. discrimination prosecution’s relief on the Batson Jr., claim Berry, granted judge, Willis However, this dismissed the claim as premature. Bat- decision as reversed the PCRA court’s Court further pro- son claim was filed and remanded for untimely Hackett, v. to Atkins. Commonwealth pursuant ceedings (2008). A.2d 978 Pa. on remand, hearings Appel- held several Judge Berry

Upon The Atkins claim from to November 2011. first May lee’s Pezola, who Judy to call was Ms. witness chose for children at the Ashbourne School taught Appellee being in 1974 after year teaching needs in her first special Remembering thirty back certified in education. special worked ten-year-old Ms. Pezola recalled years, level and “needed structure grade at a first or second on his stay assignments attention to focused individualized was labeled “brain to work As independently.” knew, who claimed “as far as kids injured,” [she] Ms. Pezola retarded.” injured educably mentally brain were were labeled 9-10, 15, 22; Pezola Aff. at Hearing, 1-2. cross-examination, Pezola admitted Ms.

On “not an retarded and conceded she was mentally not labeled “brain-injured” define the terms when asked to expert” Pezola maintained all her Although retarded.” Ms. “mentally retarded, the Ashbourne mentally agreed were she students and emo- learning children with disabilities accepted School in with a which she report tional issues. When confronted attending of to a task “very capable indicated Appellee his time well when and “able to structure completion” until 576 Ms. Pezola claimed she wrote independently,” reports

working In other she stated light. reports, Appellee in a positive in other children read” and “ac- great pride helping “takes if concepts easily provided new math he’s with quires the material.” asked opportunity practice to and review When have, developmental delays Appellee about claimed to Ms. going Pezola denied had issues his shoes or to Appellee tying 5/11/11, 22-24, 29-30, Hearing, the bathroom. 32, 35-36, 42.

Next, of four mental Appellee presented Crown, experts. expert, Barry health first Dr. Appellee’s neuropsychologist practicing psychology, clinical and forensic fits within the mental opined Appellee category “mild retardation.” Dr. the Wexler adult gave intelligence Crown scale to in 2009 after this Court remanded the case for an more than seven after hearing years filed his petition. Recognizing individuals mild mental 70, typically retardation have scores between 50 Dr. reported I.Q. Crown score to be 57. Dr. Crown admitted this score was significantly lower than Appellee’s scores; previous I.Q. received an in I.Q. score of 80 8), 15), (age a score of 85 in (age and a score of 82 in 23). N.T., Atkins Hearing, 45-46, 52-54, (age 80-84. score, Despite dramatic in Dr. felt the drop Crown test he used to evaluate Appellee’s Atkins claim was a true measure of Appellee’s I.Q. and insisted nothing “[t]here suggest [Appellee] was to fake this.” Dr. attempting Crown believed Appellee manipulate did not his score because the subscale scores displayed homogeneity Appellee was contrast, in forthright his interview. attempted Crown to discredit scores prior necessarily as “not reliable.” Dr. Crown criticized the use of the Beta-2 test given prison as the test was developed by I army approximate I.Q. World War to screen for “illiterate recruits.” Dr. reliability Crown claimed the Appellee’s 1979 score on the Wechsler Test for Intelligence (WISC-R) Children —Revised and his 1972 score on a test given CORA Services could not be assessed without raw the tests’ administration. information on supporting data or signed report observed the WISC-R Dr. Crown Although a Ph.D. and another with master’s with a by one individual Moreover, who the test. gave felt it was unclear he degree, reasons, unknown Dr. “obsolete” for stamped this test was have to be re- this test would perhaps that opined Crown N.T., Atkins developmental changes. to account for peated 53-54, 59, 64, 5/11/11, 46, 80-84. at Hearing, Dr. evaluate personally Appellee, he did not Although on the limitations based adaptive found had Appellee Crown Appellee’s affidavits from experts, other reports Appellee’s counsel, members, Atty. trial Appellee’s the affidavit of family Appellee repeated the fact that Bergstrom, Thomas enrolled in the Ashbourne three times before grade first Toomer, of Dr. report Dr. relied on Jethro School. Crown which measures adaptive who the SIB-R scale administered testify this test or at trial. Dr. but did not score functioning, Albert Levitt who expert cited to the affidavit of trial Crown level year functioned at a nine or ten old based Appellee found house, a a on a test in which he to draw required tree, drawing As Dr. Levitt felt person. child, he by year opined be an to ten old produced eight could level was consistent with a child of the same maturity his N.T., 5/11/11, 65-73; 11/17/11, at age. Hearings, 84-86, 205-208. cross-examination, Dr. admitted first

On Crown different significantly three scores were consistent and score, speculation than recent but asserted it was mere his was caused lack of motivation on the discrepancy that this the tests Dr. prosecutor compared recent test. The also Armstrong and Dr. administered and noticed Crown subtraction of incorrectly problems involving answered word correctly but somehow was able to single digit numbers questions 47. Dr. found these test multiply Crown processing involve abstract problems different skills as word Hearing, whereas arithmetic not. does 105-107,123, 177, 185-88. Admitting finding adaptive functioning has members, on affidavits of largely family deficits is based no reservation about these state- expressed taking Crown if prosecutor ments at face value. The asked Dr. Crown had business, considered that ran his own off loans paid trucks, boat, purchased part on two a was the owner of a house, murder, beach a and sent handwritten plotted griev- prison Appellee’s family ances to officials. Dr. Crown felt business, him run helped Appellee his could not confirm wrote and was not showed grievances, persuaded Appellee di- in planning rection the murder.

In a further to Dr. attempt cast doubt on Crown’s opinion, the prosecutor presented two of recorded Appellee’s phone first, prison. conversations from In the to Appellee explained his mother the on the concept short-selling stock market and claimed he had used this in the Dr. technique past. felt Appellee’s disability Crown did not prevent him engaging second, from in financial transactions. lawyers informed his sister his told him to not to go inmates, to the law talk library, to other or make mistakes “Joey Miller” did on death row when he talked about how he system was “beatin and ... playing [sic] the nut role.” This information did change not Dr. Crown’s opinion was being forthright and was motivated to well on do I.Q. test. Dr. Crown asserted he did not know what meant by this statement but felt Appellee was “dumb enough to be such having conversations on a monitored N.T., phone.” 165-66, 171, Atkins Hearing, 175. Martell, next Appellee’s expert, Dr. Daniel a forensic neu- ropsychologist, testified as an expert for the prosecution Atkins and for the defense in Miller. Dr. Martell showed scores, concern about the disparity I.Q. Appellee’s but felt the test administered Dr. Crown was reliable it as was correctly scored and the Mittenberg malingering, Index for which was to the score applied pattern, was reported Appellee being honest. Dr. Martell questioned validity of Appel- results, lee’s 1988 Beta-2 test as he observed the test incorrectly scored as Appellee’s score should have been 74 and assess intellec- not be used to this test should further claimed Dr. However, with disagreed Dr. Martell disability. tual scores, which first two evaluation of Crown’s N.T., Hearing, be legitimate. Martell found could 5/12/11, at 16-19. I.Q. an average had agreed Appellee Dr. Martell

Although adolescence, significant drop Dr. Martell attributed in his to toxins. boxing exposure in his to recreational from age in boxing program participation Noting Appellee’s effects of dementia the possible Dr. Martell discussed 14 to brain”) Mo- (“boxer’s compared Appellee pugilistica exposed Martell also noted hammed Ali. Dr. the pesti- when he used clothing without protective chemicals worked at his business and landscaping malathion in his cide puppies’ cages where he coated the kennel parents’ to kill parasites. Sevin applied creosote 5/12/11, at 20-24. Hearing, Dr. Martell adaptive functioning,

Looking aca- in five areas: functional claimed had deficits Appellee skills, self-care, self-direction, demics, interpersonal and social academics, empha- to Dr. Martell safety. regard and With three times in the grade the first Appellee repeated sized from the Ashbourne system. Appellee’s school records public he School, injured,” “brain showed where was labeled Appellee level; functioned report Appellee one stated grade was behind fifth math grade level and a fourth or grade reading at a sixth self-direction, Dr. Mar- respect at With to age level sixteen. as vulnerable to describing Appellee on reports tell relied stay attention to on and structure and manipulation requiring socialization, to Dr. Martell pointed to respect task. With making trouble friends. With Appellee had allegations self-care, family cited affidavits of to Dr. Martell respect he was eleven wet himself until claiming Appellee members Dr. safety, tying respect had trouble his shoes. With stories: following members related the family Martell recalled an accident with up, until it blew had held a firework Appellee child, a tree injured climbing himself kit as a chemistry a Martell admitted while intoxicated. Dr. with a chainsaw Appellee landscaping was able to run a business that did not functioning level of as his mother claimed to require high opinion have done the Dr. MartelPs was not bookkeeping. hearing discussing short-selling affected after stocks Appellee disability as Dr. Martell claimed causes him compensate for his mental deficits trying appear Moreover, more than he Dr. Martell competent actually is. found showed on the Appellee poor judgment talking phone lawyers about how his advised him not to use to the prison Atkins Hearing, N.T., phone system which records calls. 5/12/11, 11-13, 38-42. cross-examination,

On Dr. Martell conceded his theory con- necting Appellee’s drop to boxing expo- and chemical sure information Armstrong’s was based on Dr. report his interview with subsequent Appellee’s mother a week before trial. Dr. Martell specific had no information about Appellee’s boxing program, conceded he did not know if Appellee wore safety gear, and shared mother was not aware of an injured occasion where Appellee was or knocked out. Addi- tionally, Dr. Martell claimed the has government banned the (malathion, Sevin, use of chemicals used and creo- sote) as such system chemicals cause nervous damage. When discussing Martell’s reliance on the index in Mittenberg finding score, purposefully had not his manipulated the prosecutor questioned whether this index accounts for lack of motivation. Dr. Martell admitted had a motive 61, 66-68, not to do Hearing, well. 71-74, 95-99.

Dr. Martell conceded was never deemed mentally retarded in youth “brain-injured,” but found to be a term which necessarily did not mean injury an but could have referred to a learning disability. Although some of Appellee’s school records indicated he did not have social skills and was a follower easily who was manipulated, prosecutor presented other which indicated reports Appellee’s “outgoing and friend- ly personality makes him well peers” liked his and noted “occasionally [Appellee manipulate less mature mem- would] bers of the class.” he Admitting reports had “missed” these reviewed, Dr. which records he “confused” with and became Appel- were in records he considered only Martell stated the information did Dr. Martell admitted this pleadings. lee’s his change opinion. in his but did not findings report alter the 5/12/11, 76,104-109. N.T., Hearing, finding Martell’s also attacked Dr. prosecutor The as Dr. Martell functioning in adaptive showed deficits Appellee of portions but based his on report never met Appellee had family. Although Ap- from his records and affidavits school not tie wet himself and could family Appellee indicated pellee’s school, Dr. Martell admitted none his shoes in grade Ms. refer to such and reports problems school Appellee’s Dr. Martell found had these issues. Appellee Pezola denied following was based on the safety had deficits Appellee into a waterfall family Appellee jumped members: reports size, any firecracker without exploding of unknown held an hands, injuries subsequent problems using or his documented Even though Appellee and had an accident while drunk. business, loans, own, truck able to live on his run a take out home, had deficits buy Appellee and a beach Dr. Martell found However, Appellee’s Dr. Martell conceded self-care. over time and was on a diver- adaptive functioning improved I.Q. course with Dr. Crown’s results. gent 5/12/11,at 114^10. Hearing, O’Brien, Dr. who is both a expert, third John “mentally

psychiatrist lawyer, opined retarded,” admitted he authored his with- frankly report but However, out first three scores. Dr. reviewing Appellee’s this information did not his change opinion O’Brien averred properly because the Beta test does not test for intellectual first two scores cannot be validated disability capaci- raw gave Appellee cognitive without data. O’Brien impaired tests which showed has memo- ty screening Further, Dr. felt has ry and calculation. O’Brien cognitive limitations which affects his anxiety regarding that in his interview levels. Dr. O’Brien indicated functioning him trying impress he sensed Appellee, cross-examination, capabilities. with his On knowledge were I.Q. first three results Appellee’s Dr. O’Brien admitted of consistent, reliability he could not assess the repeated but raw Never- 1972 and 1979 tests without the data. Appellee’s Dr. and Dr. theless, Dr. conceded he relied on Crown O’Brien N.T., without their raw data. reviewing tests Armstrong’s 178-84, 187-192, 218-19, 5/12/11, 226-230. Atkins Hearing, witness, Armstrong, Dr. L. expert last Carol Appellee’s University Pennsylvania neuropsychology of the of director for the defense in the Miller case. Her laboratory, testified that forty-five evaluation of 2010 consisted of tests Appellee of these explored cognitive memory processes. only As two I.Q., Armstrong explained goal tests were relevant to Dr. testing Appellee’s composite of her was to break down underlying Describing Appellee score to discover problems. a having profile neuropsychological impairment, severe disability Dr. noted has intellectual Armstrong Appellee memory, marked deficits in verbal and visual facial percep tion, arithmetic, and information Dr. processing. Armstrong opined poor ability plan has a his behavior based on his on a maze no drawing errors task and found malingering evidence on these tests. Conclud exhibits ing neuropsychological impairment retardation,” Armstrong findings “mental Dr. asserted her were his familial of abnormal supported pattern neurologi development, poor cal educational and “insults” adaptation, he while with experienced boxing working adolescence chemicals. Dr. Armstrong found intellectual dis ability began prior age eighteen developmental based on his delay and Mrs. Pezola’s claim that Appellee “mentally 100-108, N.T., 84, 90-97, Hearing, retarded.” 113-115. that most mental

Agreeing individuals mild retardation independently, can live Dr. claimed Armstrong did him from disability prevent running not high business. While Dr. admitted had a Armstrong vocabulary school level and filed in which he prison grievances demonstrated correct word Dr. Arm- usage grammar, strong disability asserted that intellectual does not cause an correctly. speak to write and ability lose his individual to Appel- learned when she was not affected opinion Armstrong’s to test stocks, way “was no as there short-selling lee discussed said.” being what was accuracy ... [or] the effectiveness 11/15/11,at 128-44. Hearing, of the Common- two aspects criticized Armstrong Dr. Spangler pointed Dr. Paul in which report, expert wealth’s portions on similar performance in Appellee’s disparities Armstrong. Specifically, Dr. Dr. and tests Crown given her better on Appellee performed admitted Armstrong Dr. the same Dr. had administered test after Crown similarities effect” exam, “practice caused the claimed this was but on a on he has seen improve questions would where Appellee the also attacked Common- Armstrong Dr. occasion. prior questions difficult answered more wealth’s that point this criticism did Dr. claimed her arithmetic test. Crown on “equiv- these tests were not her conclusion because change not that alent”; problems on word poorly did while memory, he was working concentration and mental required N.T., problems. answer basic arithmetic correctly able to 11/15/11,at 138-42. Hearing, Atkins cross-examination, acknowledged Armstrong Dr.

On I.Q. Appel- not measure or assess tests she administered did found Armstrong Appel- Dr. functioning. lee’s While adaptive retardation,” “mental was consistent with performance lee’s with other brain that it also consistent she admitted of her goal reiterated Armstrong abnormalities. Dr. classifica- and his recent Appellee’s I.Q. was to validate testing ques- the prosecutor disabled. After intellectually tion as had statement, Armstrong agreed Dr. tioned mental retardation previously diagnosed never been teacher, Ms. of Appellee’s relied on the observation noted she Pezola, teaching admitted had limited Armstrong who Dr. the terms between not know the difference and did experience N.T., Atkins Hear- retarded.” injured” “mentally “brain 11/15/11,at 150-57. ing, Appel- between discrepancy noted prosecutor

When after he filed his before and I.Q. lee’s test scores obtained petition, Armstrong necessary Dr. asserted that it is pre-Atkins evaluate test scores the context of the effect,” “Flynn theory scores on tests with may outdated norms be inflated due to the rise of the general I.Q. scores of a over time. Dr. Arm- population Although had not discussed the effect in her strong Flynn report or on examination, direct she asserted e-Atkins scores Appellee’s pr adjusted Nevertheless, should have been the Flynn for effect. that, Dr. Armstrong adjustment, admitted even with this scores were above the range of intellectual disabili- ty. While Dr. claimed Armstrong Appellee’s exposure to may chemicals have caused brain injury suggested there are scientific exploring studies the effect of the chemicals Appellee used on the neurological system, Armstrong admitted these chemicals are commercially available and mala- thion is used to treat head lice in children. 11/15/11, 181-84,

Hearing, 212-15. The prosecutor attacked Dr. Armstrong’s finding Ap pellee impulsivity lacked control of based on his failure to complete a maze test drawing without errors. determining skills, Appellee lacked Dr. planning Armstrong stated she did not it necessary find to consider the facts underlying Appel lee’s murder conviction because she did “think not these were equally convertible concepts.” Similarly, although Dr. Arm admitted strong she had no information on how Appellee business, and planned organized his landscaping she asserted this information was not in important whether deciding Appel lee planning had impairment. Armstrong claimed it was improper rely to on the representations individuals rather Hearing, objective N.T., than an neuropsychological test. 220-21. counsel, Appellee also called his trial Atty. Thomas Berg- strom, testify. Atty. Bergstrom Appellee claimed was the “most mentally challenged client ever had” Ap- [he] because pellee was slow understanding legal concepts. Atty. Berg- strom Appellee remembered a limited role in played his trial cross-examination, gave no feedback. Atty. Berg- On strom admitted he did not challenge Appellee’s competency understood the Appellee because he was satisfied stand trial Atty. Bergstrom vaguely Although of the trial process. basics crimes, concerning Appellee’s of the details remembered some history he was not familiar with this admitted Atty. Bergstrom twenty-five years. for transcript not read the trial as he had had with Appellee a conversation phone confronted with When Mumia Appellee explained in which prison his sister while case, murder capital in his own legal position Abdul Jamal’s had strange Appellee felt this was not Atty. Bergstrom case. row to learn the facts of that twenty-five years on death 43, 56, 5/13/11, at 65. Hearing, Furthermore, testified on his behalf. family Ap- aunt, aunt, and his maternal Culp, Geraldine pellee’s paternal Krause, devel- gave Appellee similar Geraldine shoes, his reading, tying slower than their children oped Culp himself. Both Ms. and Ms. Krause testified dressing Culp time with children. Mrs. Appellee spend younger would until he was ten and claimed believed wet himself to his school when he had an accident. mother went cross-examination, learn Culp surprised Appel- Ms. On he had trouble records contained no indication lee’s school and his teachers documented that to the bathroom going problems, very competi- had no fine motor skills athletics, of a Ms. bully. tive in school and was somewhat as he difficulty playing games Krause claimed had attention quickly. did not understand them and would lose incidents as a reported involving Appellee’s judgment She four creek, into a discol- accidentally child: rode his bike set, with a knocked down chemistry ored the floor of her home tent, occasion, when she respond yelled on one did not mother. asked get prosecutor for him to When to ride a bike twelve-year-old whether it was abnormal for a creek, daughter Krause that her “was responded into a Ms. like anything as and she never did age [Appellee] same 5/13/11, 7, 9, 13-15, 21-23, 78, Atkins N.T., Hearing, that.” at 81-88, 98. mother, Bonnie also relied on the of his

Appellee enrolled Appellee Hackett. Mrs. Hackett confirmed she repeated grade after he first in the Ashbourne School tying had his Appellee problems three times and indicated shoes, and cooking doing laundry, on tasks such as or focusing Although Ap- for each season. wearing appropriate clothing business, fa- ran Mrs. Hackett claimed Appellee’s his pellee him and him obtain tools and got helped ther business cards finances, made the truck kept truck while Mrs. Hackett sent invoices. Mrs. Hackett prices, set and payments, “mentally was diagnosed shared brother late father had limitations in intellectual retarded” 6-7, N.T., hearing, 25-26. functioning. At in her defense counsel found it points testimony, several Mrs. Hackett after she discussed necessary Appel redirect in participation boxing exposure lee’s and his to chemicals related to these questions topics. when she had not been asked join Hackett she not Appellee Mrs. asserted did want injured; he be boxing club as she was worried would she related one occasion in which ear and were eye and other in which bed at swollen occasions went to such, p.m. participation 6:00 As Mrs. Hackett was thankful his addition, in did not “last ... too Mrs. boxing long.” expressed Hackett concern about at the Appellee’s exposure creosote, kennel to which to the family apply would without a mask or Mrs. Hackett puppies’ cages gloves. claimed used malathion at work similar without Mrs. Hackett were tak precautions. asserted both chemicals en off the market and asserted creosote is carcinogenic. 11/15/11, 10-11, 15-23. hearing, cross-examination, On Mrs. Hackett testified that Appellee never diagnosed was with “mental retardation” but found to youth. have disabilities in his While Mrs. Hackett learning focused on as a to tie his Appellee’s delay learning child himself, agreed problems shoes and dress she these did not when eighteen. Although expressed exist she Appellee’s possible damage boxing concern about brain from adolescence, in his Hackett exposure chemicals Mrs. not allege admitted she did these facts her affidavit and is, fact, aware that creosote for purchase not available 11/15/11, at BB- Atkins N.T., hearing, commercially. used SS, 45-50. worker, testi- Mrs. Hackett as a hard

Describing Appellee to allow enough was successful business fied eighteen the time he was two trucks Appellee purchase for responsible agreed Appellee Hackett old. Mrs. years day, each complete would jobs employees the his scheduling lawn general mowing, spraying, included lawn which hoped Appellee she had Mrs. Hackett testified maintenance. in County to Monroe when she moved could care for himself claimed in She Philadelphia. remained Appellee 1985 and to handle the named Heidi Guhl then hired a woman Appellee could Appellee Hackett claimed finances. As Mrs. business matters, her if she asked prosecutor handle financial not an rented office in 1988 that testifying remembered quiet, place “he needed a because for his business to, whatnot.” Mrs. to make out bills and that he had access statement, asserted this but deny making not Hackett did that she could do the documents so organized income from Appellee reported asked if When bookkeeping. market, did not Mrs. Hackett explained the stock topic until she had discussed this take interest in stocks conversation. way as a to make him while he was incarcerated 29, 36-40, 45-50, 61-63, N.T., 67- hearing, 68. psy- expert

The presented Commonwealth of the mid-Atlantic Spangler, president Dr. Paul chologist and Devel- Association of Intellectual of the American region (AAIDD), no evidence Appel- Disabilities who found opmental experi- Dr. clinical “mentally Spangler’s lee was retarded.” as assistant director of the 1970’s employment ence includes Institute, developmen- for individuals with Elwyn facility contact with Spangler Dr. had position, tal disabilities. this during attended the Ashbourne School which the Ashbourne School did not Dr. asserted period. Spangler retardation,” special- “mental but seek to enroll students with dysfunction, minimal brain educating ized in children with which Dr. correlated to Spangler learning disabilities. 11/17/11, 8-13, 91, 115. hearing, Spangler found no reason to the I.Q. discredit scores recorded Ashbourne School 1972 and CORA Services as these institutions were sources respectable information which he had relied on during his career. Dr. test, Spangler agreed that the Beta-2 which the felt defense did not assess intellectual adequately disability, should not be relied on I.Q., as sole measure of but advocated its use as tool. Even after screening recognizing the Beta-2 test’s weaknesses, Spangler Dr. noted Appellee’s score was consis- results, tent with prior his two test which Dr. Spangler found N.T., 11/17/11, no reason to discredit. hearing, at 23- 24, 44, 65.

Dr. Spangler criticized the defense’s reliance on the I.Q. test Dr. Crown in gave Appellee 2009 to evaluate his Atkins claim and found the of drop approximately twenty in points I.Q. was significant. As I.Q. subject restraints, tests are to time Dr. Spangler explained that a lack person’s of motivation or effort can lower their I.Q. score. Dr. Although Spangler did not believe Appellee lying test, se on per Dr. Spangler felt he was not motivated to do well or perform quickly on a test that results in a death sentence. Dr. Spangler observed “noticeably poor[ly]” did on questions timed disparity noted in the speed with which he completed similar of I.Q. sections tests administered before and after he filed his Atkins claim. Spangler Dr. also noted Appellee did better on tests given by Dr. who Armstrong, was not to seeking meas- such, ure I.Q. As Dr. Spangler questioned the applicability of index, the Mittenberg which designed to measure purpose- ful falsification. Dr. Spangler found it “cruel” to give I.Q. an test to a death row inmate and ask him to perform to the best of ability he hopes will do well enough to be executed.

N.T., 24-30, 36-48, Atkins hearing, 52-57, 66, at 79.

While Dr. Spangler challenge did not the validity of Dr. evaluation, he Armstrong’s asserted that such tests are not used to diagnose disability produce and do not an I.Q. Dr. Spangler score. noted that none Appellee’s subs- percentile, the second I.Q. to were below scores related cale Appel- He disability. highlighted defines intellectual which the abstract verbal 75th on percentile score in the lee’s 115, subtest, I.Q. with an which he correlated reasoning questions answered sophisticated indicated Appellee further expected of 130 are to I.Q.’s excess only people which rejected “prac- the claim that Armstrong Dr. get correct. on performance for better Appellee’s tice effect” accounted him additional gave test as she Armstrong’s Dr. similarities Moreover, test. Dr. he had not seen on Dr. Crown’s questions drop Appellee’s to attribute the improper found it Spangler creosote, Sevin, malathion and I.Q. exposure score articles connect- any he unaware of scientific Roundup as was also felt damage. Spangler brain Dr. ing these chemicals to boxing limited recreational there was no evidence any damage Appellee’s old caused brain fourteen-year as a fifteen. age obtained his score highest 74-78, 80, 11/17/11, 50-59, 99-101. hearing, functioning, Span- adaptive respect With was Appellee progressing school records indicated gler found reference to with skill problems and contained no normally described seven- report or communication. One acquisition his- “[djevelopmental teen-year-old Appellee phrase: progression events and a normal tory showed no unusual experts Dr. noted the defense Spangler of skills.” acquisition tests, but relied on adaptive functioning not give Appellee did anecdotes, felt should not be ac- Spangler which Dr. family Dr. questioned at face value. Dr. Crown’s cepted Spangler test, which was adaptive functioning Dr. Toomer’s reliance on it improper never He also found incorrectly scored. given fallacious” claim of “grossly expert to on the Appellee rely for a ten old year found functioned at Appellee Albert Levitt who N.T., Atkins hearing, of a tree. drawing level based on 83-85, 91-95, 99-101, 208-209, 11/17/11, 221. at run his own business ability Dr. felt to Spangler Appellee’s and consistent the stock market was advanced and discuss behavior, disability. Dismissing not intellectual with normal about stock trad- Appellee assertion that talked the defense’s not Dr. felt did ing appear intelligent, Spangler information, but merely repeat mimic other individuals or ability as seen in his sophisticated cognitive showed skills with correct and sentence prison grievances grammar write he admitted individuals with intellectual Although structure. Dr. disability equipment, Spangler can learn to use mechanical machinery are not often left to operate felt such individuals they and do not run businesses where independently usually money are for track of responsible handling keeping Further, Dr. felt crime Spangler appointments. intellectually was not of offenses committed dis- typical individuals, which are show generally impulsive abled N.T., little “very aforethought.” hearing, 85-88, 105-109, 211. cross-examination, Dr. he not Spangler

On admitted did personally Appellee, explained evaluate but that he found no reliable source of evidence of “mental retardation” prior eighteenth birthday would be testing and claimed irrelevant to assess whether Appellee “mentally retarded” Further, thirty years ago. Dr. wished to Spangler avoid false evaluation as he did not feel him a give would fair when an under the response taking test duress of penalty. Similarly, death Dr. did not recommend Spangler index as he its utilizing Mittenberg questioned accuracy, but felt did not show significant signs purposeful While Dr. manipulation. Spangler emphasized discrepan- cy in Appellee’s performance given by on similarities tests Dr. Dr. Armstrong, Crown and he conceded Appellee performed similarly on their vocabulary and information tests. 11/17/11, 136-139, 143-45, hearing, 153. grade every year, While behind level Spangler acknowledged Appellee may learning have disabili- ties, retardation,” not “mental advanced Appellee’s learning at a normal rate after at enrolled the Ashbourne School. With respect Appellee’s functioning, Dr. con- adaptive Spangler ceded that he did not address his Dr. Martell’s report self-care, findings had limitations in the area of Appellee self-direction, skills, safety, social and functional interpersonal areas. in those academics, had no deficits Appellee but felt given to the tests his evaluation confined Spangler 119-20, 11/17/11, N.T., at hearing, accuracy. their 158-161. Guhl, of Heidi elicited the

The Commonwealth on his office Satur- phone who answered employee Appellee’s workers, his claimed scheduled Appellee Ms. Guhl days. estimates, Ms. equipment. all of his operated prepared paid checks and his did not write Appellee remembered Guhl she did family claimed Although Appellee’s cash. employees County, moved to Monroe after his mother bookkeeping at partied Appel- Ms. Guhl allegations. Ms. denied these Guhl would her alcohol as buy because Appellee lee’s beach house was on work the time. When underage Appellee she convictions, claimed that Ms. Guhl burglary release for several him to to the allowing go authorities into deceived contracts maintained he had on the weekends as he had shore charged posses- she had been there. Ms. admitted Guhl preferential denied receiving but drug paraphernalia sion of had a Ms. Guhl Although treatment from the Commonwealth. hate for the expressed with the victims relationship close ill committed, feelings claimed to have no act she was an Ms. felt crime Appellee’s him. As Guhl against mistake, not to the trial court opposed immature she was Appel- sentence. Ms. Guhl did not believe vacating his death difficulties, he had suggested anger but lee had intellectual 6, 10, 12-23, 41-49. hearing, issues. court determined testimony, After the PCRA hearing range score of 57 him in the placed was not “mild mental retardation” and satisfied e-Atkins pr test. Finding Appellee’s on this malingering “unreliable,” court indicated Dr. to be the PCRA scores veracity vouch for the or specifically “could not Spangler had not his own accuracy performed of these earlier tests” and addition, had court found testing. repeat in his need to functioning as seen adaptive deficits times, delay, anecdotes developmental the first three grade behavior, reports indicating unsafe and school 592

that he not easily, easily manipulated, did make friends required conjunction Appellee’s expo- direction. In chemicals, “repeated injuries,” sure to toxic head history intelligence, familial of limitations the PCRA court proven disability by found had his intellectual a of the evidence under the standard preponderance set forth 6, 7-16,19. Miller. at Op., appealed, The Commonwealth has claiming Appellee not met his burden under Miller and asks this Court to “adopt a objective legal more definition of mental retardation to Brief, combat fraud the courts.” upon Commonwealth’s at 3. reviewing PCRA court’s determination of whether a thus, petitioner intellectually is exempt disabled and from the penalty, death our standard review is as follows: A question whether a involving petitioner fits the definition of mental retardation is fact intensive as it will primarily be based upon and involve experts multiple credibility determinations. Accordingly, our standard of review is whether the factual are findings supported by substantial evidence and whether legal conclusion drawn therefrom clearly is erroneous. choose highly We deferential standard because the court that finds the facts will know them will, better than the reviewing court and so its application of the law to the facts likely to be more accurate. Williams, 219, 223, 979,

Commonwealth v. 619 Pa. 61 A.3d (2013) 222, (citing Crawley, 228-29, Commonwealth v. 592 Pa. 612, (2007)). 924 A.2d

II. ANALYSIS A. Review of PCRA court’s Atkins determination detail, Before we examine party’s each claims in further it is necessary to set forth relevant precedent give context to their arguments. After the Supreme U.S. Court issued its pronouncement in the execution of prohibiting “mental- ly individuals, retarded” the High Court left to the individual states the responsibility of setting procedures assess a Atkins, 536 disability. claim of intellectual U.S. defendant’s leave to (stating 153 L.Ed.2d 335 “we 122 S.Ct. to enforce ways of developing appropriate task State[s] execution of sen upon restriction [their] the constitutional tences”). Assembly legisla has not enacted As our General after Atkins was years set such standards eleven tion to of decided, power this has exercised its constitutional Court forth procedures in the interim to set judicial administration in Common Pennsylvania. the Atkins decision implement Sanchez, 1, 48, 24, (2011); 52 cert. v. 614 Pa. 36 A.3d wealth — 122, (2012); denied, U.S. -, 133 S.Ct. 184 L.Ed.2d 58 V, Miller, 155, 631; Pa. at A.2d at Pa. Art. 585 888 Const. 10(c). § Miller, prevailing

In established the stan Court claims in a defendant must Pennsylvania: dard for Atkins show, evidence, that he is by preponderance “mentally a of the American provided by retarded” under definitions (APA) Psychiatric Association or the American Association of (AAMR), the Ameri Mental Retardation which was renamed Intellectual Difficulties Developmental can Association on and (AAIDD). Miller, 155, These 585 Pa. at 888 A.2d at 631. clinical definitions are as follows: a “disability

The AAMR defines mental retardation as by characterized limitations both in intellectual significant as in the functioning adaptive expressed and behavior social, adaptive and skills.” Mental conceptual, practical Definition, Classifications, of Systems Retardation[: (10th 2002) (Mental Retardation) 1 at 1. The Supports ] ed. Psychiatric American Association defines mental retarda- (an intellectual “significantly subaverage functioning tion as below) age 70 or with onset before 18 I.Q. approximately years impairments adaptive and concurrent deficits or Manual of Mental [Diagnostic and Statistical functioning.” (4th 1992) (DSM-IV),] Thus, ... both at 37. Disorders ed. retardation three con- incorporate definitions of mental 2) 1) functioning; significant limited intellectual cepts: 3) limitations; of onset. adaptive age 594 (footnote omitted). sum, 158,

Id. at 888 A.2d at 629-30 either the may defendant establish “mental retardation” under (AAIDD) by a by showing AAMR or definition APA/DSM-IV that he has intellectual of the evidence limited preponderance limitations, onset functioning, significant adaptive before he turned subaverage functioning began intellectual Williams, 224, Pa. at A.3d at 982. years old. 619 61 test, prong significantly subaverage The first of this functioning, through I.Q. is scores which signified (or approximately points) are two standard deviations (100). Miller, below the mean score 585 Pa. at 888 A.2d 39). Retardation, 14; DSM-IV, at 630 Mental It (citing note, score, itself, however, important is that a low not sufficient assess “mental retardation” under the Miller, AAIDD DSM-IV and definitions. 585 Pa. at A.2d at 630. The second of Miller test prong requires individual to show significant adaptive functioning. deficits Id. behavior Adaptive conceptu is defined the “collection of al, social, and practical skills have been learned people lives”; in order to function in their everyday individuals with adaptive struggle ordinary behavior limitations in adjusting demands of life. Id. The AAIDD recommends adaptive be havior be through assessed standardized and defines testing significant limitations behavior as adaptive performance that is at least two standard deviations below the mean of social, either in an overall score assessing conceptual, skills or within practical any categories one of three individual 154, contrast, ly. Id. at 888 A.2d at In 630-31. the DSM-IV requires significant following deficits two of the categories: communication, self-care, living, social/interpersonal home skills, resources, self-direction, community use of functional academics, work, leisure, health, 154, safety. Id. at 630 n. A.2d 8. Arguments

1. standards, Pursuant to these the argues Commonwealth the PCRA court erred in determining Appellee met his thus, burden to that he is disabled and prove intellectually historical claims to Atkins relief. The Commonwealth entitled raised his claim before evidence established contrast, disabled. intellectually not shows specula- presented that Appellee contends the Commonwealth intelli- who conducted experts testimony from defense tive purpose for the after crimes Appellee’s decades testing gence convince Atkins claim attempt in an proving Appellee’s death sentence. to vacate Appellee’s the PCRA court of the functioning prong to the intellectual respect With claim test, Appellee’s asserted Miller the Commonwealth disability of intellectual range is within the I.Q. score threshold score for Noting law. the false as a matter of 70, claims the the disability is Commonwealth early the results of erred in ignoring PCRA court 14, and age 85 at age he scored of 82 at I.Q. tests which range in the low-normal placed 80 at which age some defense Although threshold. applicable and above tests, Appellee’s of these reliability experts questioned Martell, were consis- admitted these scores own expert, likely reliable. tent scores, the e-Atkins test Com- pr of his precision

Given court’s reliance on the self- criticizes the PCRA monwealth test, he in which scored results of serving outlier, be an the Common- Considering this score to a 57. intelligence risk that significant there is a wealth asserts of will litigation purposes administered for testing has a decreased motiva- invalid as a defendant be skewed and will lead to when good performance tion to well perform claim, cites support To Commonwealth execution. have recognized courts who appellate of other state precedent when a defendant’s motivation necessary that it is to examine Atkins claims. given to assess assessing intelligence testing Grell, 516, 696, (2006); v. 702 See Arizona 212 Ariz. 135 P.3d Hughes 361, Bowling Kentucky, v. (Ky.2005); 163 376 S.W.3d v. (Miss.2004); Louisiana v. Mississippi, 892 So.2d (La.2002). Dunn, defense Although n. 9 831 So.2d index indicated Mittenberg Martell asserted the expert out points not the Commonwealth malingering, that Dr. Martell admitted had a motive not to do well Further, I.Q. on his -Atkins test. Commonwealth post erroneously “Flynn that the court relied on the argues away effect” to historical results which explain precipitous twenty- it claims cannot account for the loss of I.Q. points petition. seven after he filed his Atkins test, to the Turning adaptive functioning prong the Miller improperly Commonwealth also contends the PCRA court delays focused on which he Appellee’s development over- came well before he turned After eighteen. School,

enrolled at the Ashbourne which focused on children disabilities, retardation,” with learning and not “mental Appel- lee’s records showed improvement progression although he was behind level. to a grade Citing portion of the DSM-IV manual which provides individuals “mild mental retarda- level, tion” can achieve to the sixth academically grade Commonwealth points indicating Appellee tests achieved beyond this benchmark. contrast, questions the Commonwealth the defense ex-

perts’ refusal to consider Appellee’s adaptive functioning at the time he conspired commit murder: lived ran a small in which independently, business he scheduled and office, paid his rented an employees, purchased operated vehicles and sophisticated equipment. As Appellee’s successful, business was he earned enough money buy boat and share of a New ownership Jersey beach home. Additionally, the points Commonwealth to Appellee’s manipu- life,” lation of the where “loopholes Appellee lived at the Ogrod home and stored his equipment business there without rent, paying any used his business to target homes he later burglarized, and deceived authorities to believe he had con- Jersey tracts New so that he could travel to the shore on weekends while on work release.

Moreover, the emphasizes Commonwealth that none of the defense experts successfully evaluated alleged adaptive functioning through limitations standardizing testing; while Dr. Crown relied on Dr. Toomer’s evaluation of Appel- adaptive functioning, lee’s the defense did not challenge Dr. Toomer’s results were assertion that Commonwealth’s Instead, the incorrectly. the test invalid as he administered finding Appellee court’s that claims the PCRA Commonwealth of is based on anecdotes functioning deficits adaptive had avoid the death helping Appellee interested in family members school records Appellee’s reading and a selective penalty success, and improvement, evidence of ignores that capabilities. court’s conclu- asserts that the PCRA

The Commonwealth of the Miller test and prong met the third Appellee sion that age eigh- retardation” prior the onset of “mental exhibited had never the record. As supported by teen is not he sought disabled before intellectually been as diagnosed revealed Atkins relief and I.Q. his historical results range I.Q. spectrum, in the low average scored concerning theories characterizes the defense Commonwealth defense I.Q. Although Appellee’s drop speculative. injury brain from chemical claimed sustained experts that none of the defense exposure, argues the Commonwealth area, any cited to any expertise testified to experts chemicals to be specific scientific studies which found these toxic, to his intellec- Appellee’s exposure alleged or connected addition, challenges tual the Commonwealth disability. which consistency Ap-

internal of the defense theories assert while his function- pellee’s I.Q. dropped dramatically adaptive time. also ing improved questions over The Commonwealth acknowledge adamant refusal experts’ defense score could have been caused Appellee’s drop well on a test that will be used to perform lack of motivation to support his execution.

Further, that the judge the Commonwealth asserts prove he was grasp required failed to retarded,” have mental “mentally merely impair- and did not ment, disabilities, neurological or another abnormali- learning reliance on After the the defense’s ty.6 prosecutor questioned Bowling, 422 F.3d proposition, the Commonwealth cites In re 6. For this Cir.2005), (6th petitioner’s in which the Sixth Circuit found a functioning retardation where adaptive do not show mental limitations teacher, Pezola, Ms. on this topic, the statements of had the with the trial court: parties following exchange you say really Did hear that she [Prosecutor:] [Ms. Pezola] if [Appellee] mentally didn’t know retarded? say thought I heard her that she he was

[Dr. Martelk] educably mentally retarded. Did also hear her that she all you say thought

[Prosecutor:] educably mentally of her students were retarded?

Trial purpose Court: Isn’t of the school? No, Honor. It’s for disabled your learning

[Prosecutor:] students. Well,

Trial couldn’t learn in they regular Court: school. They put they them in this school because had a problem learning. They had are not problems. They mentally

[Prosecutor:] retarded. There are other are things. They learning dis- abled. Look,

Trial they difficulty. Court: had were chal- They lenged why they students. That’s were in here. put Right. point The is was he mentally [Prosecutor:] retarded or did he have a learning disability.

Trial Court: All right. later, N.T. Atkins A hearing, 102-103. short time Judge Berry asked Dr. Martell the following question: “So School, [Appellee] spent years ten in the Ashbourne which is a school for mentally retarded children?” Id. at 117. In em- phasizing distinction, the relevance of this the Commonwealth to the points uncontradicted of Dr. who Spangler knowledge had of the Ashbourne practice School’s of admit- disabilities, children with ting learning not “mental retarda- tion.”

Arguing the Commonwealth ignores applicable review, standard of claims that the Appellee PCRA court’s conclusion that he “mentally is retarded” is free from legal they just psychological “are as indicative of the other disorders from they functioning.”

which he suffers as are of low level intellectual the record. are findings supported its factual error and raised a has not that the Commonwealth contends court’s overturning the PCRA claim to warrant meritorious asking this simply he claims the Commonwealth decision as credibility court’s determinations the PCRA Court to discount find- to the court’s owed disregard deference of fact. ings correctly found

First, asserts the PCRA court as his functioning subaverage has within Dr. fell on the test administered Crown score of 57 found The PCRA court disability. of intellectual range need to repeat was consistent with this score times, of low intellectual family history three grade first head “repeated to toxins and functioning, exposure and his court found Dr. as a child. the PCRA injuries” Emphasizing reliable, to Dr. Crown’s Appellee points score to be Crown’s to believe score that there was no reason assertion experts, including and the fact that all was fraudulent addition, malingering. found was not Spangler, Appellee’s previous court considered notes the PCRA Appellee scores, to be unreliable. More- but found such results I.Q. rejected Span- court Dr. over, the PCRA Appellee emphasizes be earlier scores should Appellee’s that gler’s opinion validity not vouch for the credited because Dr. could Spangler Dr. Martell did not Although or of these tests. accuracy scores, he asserted validity Appellee’s of these question by neurological boxing lowered insults such as I.Q. had been exposure. and chemical to ample support also claims the PCRA court had

Appellee The has deficits. Appellee significant adaptive conclude opinion Appellee court relied on Dr. Martell’s PCRA functioning eleven adaptive in five of the DSM-IV’s impaired academics, and interpersonal functional social categories: skills, self-direction, self-care, The court safety. and PCRA Appellee repeated limitations in functional academics as found every was behind level grade the first three times and grade respect Appellee’s at the Ashbourne School. With year skills, school reports socialization the PCRA court noted family manipu- members indicated was vulnerable to making finding lation and had trouble friends as child. self-direction, lacked court relied on Ms. Appellee required Pezola’s observation that structure and stay attention to on task. The PCRA court found Appellee eleven, had in as he wet until he deficits self-care himself shoes, could not tie his and never his mother and sister helped cook or do laundry. respect safety, With PCRA court found family serious deficits based on the aforementioned behavior, anecdotes of unsafe which includes an injured incident where Appellee climbing himself a tree with a chainsaw while intoxicated.

We our discussion begin by reaffirming the standard that this adopted petitioner Court Miller: a seeking Atkins relief has the prove by burden to a preponderance of the disabled, therefore, evidence that he is intellectually not subject court, finder, to the death The penalty. PCRA as fact had the of responsibility determining whether exhib- low to suffers from simply retardation or mild mental its recognize While we functioning. intellectual borderline credibility determina- findings factual the court’s PCRA they supported by if are to deference great are entitled tions on record, not base its decision may court PCRA it finds credible. Com- testimony from derived speculation 253, 60, A.3d 259 n. 6 620 Pa. Simpson, monwealth v. information, (2013). relevant we of all the After consideration “mentally conclusion find the PCRA court’s evidence. by substantial supported retarded” is not in- subaverage significant exhibits determining Appellee Appellee’s court dismissed functioning, PCRA tellectual scores of tests in which he received I.Q. e-Atkins pr Spangler, Dr. expert, it the Commonwealth’s 82 as found accuracy or veracity not vouch for the “specifically “could The court’s earlier at 7. PCRA Op. these tests.” PCRA to validate required that the Commonwealth suggestion of review scores the standard I.Q. ignores normal his claim of intellectual prove the burden to giving Appellee court’s assertion There is no basis for PCRA disability. Crown, that, test scores Appellee’s early to Dr. according “inconsistent “nullified” factors such as would have been conditions, and out-of- wildly divergent ranges, median testing (known effect’).” ‘Flynn measures as the PCRA testing date we find transcript, review of the trial Op. Upon at 8. our Ct. any findings for of these support no in Dr. Crown’s court.7 Moreover, claim first two experts did not defense inaccurate, accuracy noted the simply scores were but each without the raw data of the tests could not be assessed contradiction, O’Brien, Dr. who admit- In an apparent test. however, "Flynn Armstrong, passing made a reference to the 7. Dr. suggest Appellee’s pre-Atkins scores be effect" on cross-examination to opinion express We no on adjusted account for outdated norms. Armstrong theory Flynn a valid scientific whether the effect is inflation, scores, adjusted possible are Appellee's even when for found Further, disability. party neither above the threshold for developed any argument topic and claims the on this has Flynn "peripheral” finding respect effect is PCRA court's Brief, ruling. Appellee's at 43 n.8. ultimate its before he Appellee’s pre-Atkins had not reviewed results tedly reliability refused to the expert report, his assess prepared Dr. these tests but conceded he relied on the results of Crown reviewing Dr. without Armstrong’s post-Atkins testing significantly, Appellee’s the raw data of their tests. Most own conflicting opinions Appellee’s offered on whether experts or intel- scores demonstrated “mental retardation” borderline functioning; rely Appel- lectual while Dr. Crown refused to on not comment on early I.Q. Armstrong lee’s scores and Dr. did tests, Dr. Martell felt first reliability Appellee’s these scores, which were two test above threshold of intellectual disability, were reliable.

The also acknowledged Appellee diag- defense was never claim; “mentally nosed as retarded” prior raising “brain-injured” Dr. Martell found grade label as did not necessarily injury, school denote an but could have referred Dr. learning agreed disabilities. that Armstrong mental impairment consistent other neu- rological abnormalities other than intellectual disability. The only that suggestion intellectually disabled came Pezola, from his thirty years ago, teacher Ms. who admittedly not “brain-injured” did know difference between the terms and “mentally generalized retarded” and all her students at the Ashbourne School into the of “mental category retarda- However, tion.” admitted Ms. Pezola had Armstrong limited experience just begun as she had her first year teaching Appellee’s receiving class after certification in special education. Dr. Spangler, only who had expert knowledge of the Ashbourne practices School’s when was en- 1970’s, rolled there in the indicated the Ashbourne School specialized educating children with disabilities and learning did not seek to enroll “mentally retarded” children. While acknowledging repeat did the first three grade times, Dr. Spangler pointed out that ad- Appellee’s learning vanced a normal rate after he at the was enrolled Ashb- ourne School.

Although experts defense that mental agreed retardation can be from distinguished neurological other abnormalities disabilities, commentary on court’s learning such as students with that it believed that all demonstrated the record retard- “mentally could be characterized learning problems distinction, the PCRA court recognize failing ed.” may suggesting evidence equated improperly abnor- neurological or another disabilities learning have had signifi- to show burden satisfying Appellee’s mality proof with first prong under the functioning intellectual subaverage cant Miller definition of mental retardation. of the in low to scores Appellee’s no giving weight After was never Appellee the fact I.Q. range normal and Atkins he sought retardation until with mental diagnosed relief, I.Q. emphasis Appellee’s court on placed the PCRA after his was petition years of 57 obtained seven score not purposeful- found did Although experts Appellee filed. all score, Span- court dismissed Dr. the PCRA ly manipulate score, 23 to 28 points that this which was gler’s suggestion scores, as suspicion than should be viewed with previous lower a test have been motivated to do well on may not Appellee indicating Mittenberg his execution. While leading to Martell con- not Dr. Appellee malingering, index showed post-Atkins a not to do well on Appellee ceded had motive testing. effort could admitted that lack of

Although Crown scores, he adamantly difference in explain “substantial” not perform there was “no evidence” did maintained ability of his even after Dr. Crown was confronted to the best told his sister conversations in which with recorded “nut inmate who had role” played about another death-row him to lawyers urged and shared his system” to “beat the family, talking or library, writing to the law to his going avoid may “snitches.” As there be to inmates believed to be evidence in cases incentive to and to slant powerful malinger clinically diagnosed has not been petitioner where a record before the factfinder was disability and the Atkins, has found a relief this Court created to seek under intellectual disabili- motivation to slant evidence of petitioner’s for Atkins factfinders in assess- is a relevant consideration ty only intelligence not of results of ing validity post-Atkins in the entire testing, analyzing petition. but Common- (Pa.2012). DeJesus, wealth v. 619 Pa. 58 A.3d 85-86 Dr. Martell childhood scores accepted Appellee’s I.Q. While reliable, range disability outside the of intellectual defense experts provide theory did not for the adequate support the dramatic was caused recreation- drop Appellee’s al Even boxing exposure though toxins. Dr. Martell had no information about specific Appellee’s partic- limited ipation age from to 15 a children’s did boxing program, used, not if inquire safety equipment was and admitted there injured no evidence that had been in this short Dr. Martell period, practically diagnosed Appellee with de- (“boxer’s brain”) mentia him pugilistica compared Ali. fighter Mohammed When asked if had been injured in boxing, his mother indicated she could recall only one occasion in which ear and were swollen eye other occasions where he went to bed early. Mrs. Hackett expressed relief that participation boxing “didn’t claims, ... last for too Based on the long.” foregoing Dr. felt there was no Spangler Appellee’s evidence limited recre- boxing ational as a old fourteen-year any caused brain damage and pointed Appellee’s out that obtained his score highest I.Q. fifteen on age an exam Dr. Martell found was probably Moreover, reliable. as there was no evidence that Appellee injured was in the boxing program, the PCRA court’s finding Appellee injuries” “repeated supported by had head is not record. manner,

In a similar while there is no dispute that creosote, Sevin, malathion, was exposed and in his Roundup adolescence, the defense did not show a causal connection between these chemicals and in Appellee’s drop I.Q. or his alleged intellectual disability. None of the defense experts area; claimed to have in this Dr. expertise Martell showed a lack of knowledge topic on when he relied on Appellee’s mother’s assertion that all of these chemicals had been banned, as Dr. Armstrong admitted the chemicals were com- mercially available and indicated that malathion is currently Dr. Although lice in children. to treat head shampoo in used of neuro- “variety causes a that malathion claimed Armstrong memory alleged loss and including symptoms” logical Dr. Arm- Dr. Martell nor neither carcinogenic, creosote reports or which studies any scientific strong point could in changes significant could cause these chemicals suggest such, lacks ade- the record levels. As functioning in I.Q. drop of a dramatic theory Appellee’s for quate support adolescence. his alone are above, testing of intelligence the results

As noted an disability as individual to assess intellectual not sufficient In assessing limitations. adaptive significant must also show test, court relied the Miller the PCRA prong the second of Martell, not interview Dr. who did on the heavily opinion his testing, but based any standardized perform or school records portions Appellee’s on selective reports main on expert family Appellee’s of his members. affidavits Martell, that he did not conceded functioning, adaptive records. all of school Appellee’s to review opportunity have indicating reports school emphasized Dr. Martell Although skills, and had no social easily manipulated, was direction, candidly Dr. Martell admitted support required himself indicating reports he had never seen peers and well-liked outgoing but manipulative capable indicating Appellee mention reports did not manner. While timely independently a task completing that he Appellee’s family claims from emphasized Dr. Martell in school until he was and wet himself could not tie his shoes these eleven, school records document none of ten, Pezola, when he was taught Appellee who issues and Ms. court Although PCRA problems. denied he had such a tree with a chainsaw climbing conduct found court functioning, adaptive demonstrated deficits during was intoxicated Appellee recognize failed to incident. evidence

Further, identify any did not the PCRA court limitations in his significant adaptive had showing Appellee life, develop- to his but limited its review or adult adolescence delay early mental in childhood and brushed aside evidence seventeen, By Appellee’s he adaptive developed. age skills normally records indicated he was progressing school any problems acquisi- contained no indication he had skill tion, communication, own running or motor skills. his business, lawn and snow removal Appellee operated equip- service to nu- employees provide ment and scheduled his mother claimed to have Appellee’s merous clients. While she was able to bookkeeping, Appellee done admitted paying according handle financial matters each worker rate. Before predetermined age eighteen, Appellee purchased two trucks for his business and off the loans ahead of paid time. success allowed him to an office and Appellee’s open part-owner become of a beach home. behavior, also showed as he lived in manipulative home and store there Ogrod equipment his business rent,

without used his business to his clients for paying target committed, burglaries he later into deceived authorities him off work allowing release to travel to the shore on the where he weekends claimed to have contracts. After Appellee incarcerated, strong ability showed his to com- municate through prison grievances well-written and demon- strated of stock market understanding concepts legal precedent capital cases. that the agree We defense theo- internally ries seem to be inconsistent Dr. as Martell conceded Appellee’s adaptive was on “a functioning divergent course” results; with Dr. I.Q. Crown’s while his supposedly plummeting, adaptive functioning capabilities improved over time. WTiile Appellee’s ability to work and in society function would not necessarily prevent disabled, court from finding Appellee intellectually record does not any include evidence that had signifi- cant adaptive functioning beyond early limitations child- years. hood

The PCRA court also accepted the defense’s claim that crime was not relevant to assess his adaptive functioning; found had Armstrong deficits planning his behavior based on his errors on a maze drawing how to ascertain important it was not but indicated test and did not find his business organized Appellee planned How crimes. the facts of to consider necessary it not similar crimes were ever, felt that Dr. Spangler disabled individuals intellectually by committed to offenses This observa “aforethought.” little very which tend to show Court’s Supreme with the States is consistent United tion [intellectually that in Atkins of “abundant evidence finding pursuant rather than impulse often act on individuals] disabled are settings they in group and that plan, a premeditated to Atkins, at leaders.” 536 U.S. rather than followers 2250, 153L.Ed.2d 335. S.Ct. ultimately case, the attack which planned Appellee

In this to hire a arranged Initially, Appellee Dunne’s led to death. hitman, money, gave considerable offered two assassins When these identify targets. his pictures out the victim’s with his co- the murder Appellee fell discussed plans through, in the advance, the men to home Ogrod’s in drove defendants them to enter the basement and directed night, middle of the victims were home where he knew the unlocked Ogrod’s crime, in the Appellee sleeping. participation To conceal evidence which destroyed to fabricate an alibi and attempted a crow- a hitman and gave potential included the he pictures crime, This which demonstrated bar used the murder. initiate, devise, and lead others in a was able to an assessment of his was relevant premeditated plan, court. but was the PCRA adaptive functioning ignored reasons, we find the PCRA court’s foregoing Based on the is not intellectually sup- that is disabled conclusion erred in evidence. The PCRA court by substantial ported intellec- met his burden to establish concluding it of the evidence when preponderance tual disability functioning borderline intellectual improperly equated Appel- evidence of identify “mental retardation” and failed to Thus, we functioning. in adaptive lee’s limitations significant exempt finding reverse the court’s penalty. from the death Assessing

B. the Atkins standard

adopted Pennsylvania issue, In its second asks this Commonwealth Court objective a more definition of mental “adopt legal retardation Brief, upon to combat fraud the courts.” Commonwealth’s Claiming 3. the clinical definitions of “mental retardation” set inherently subjective, forth the DSM-IV and AAMR are Commonwealth asserts that such definitions are set “biased by that have statements the organizations policy against death journals penalty” supported by professional “encour- age forensic to mental psychologists interpret retardation as broadly as to avoid possible execution.” Com- [a defendant’s] Brief, monwealth’s at 25. While the recog- Commonwealth Miller nizes this Court declined to recalibrate the three-part Dejesus, standard in the Commonwealth recommends this test be “objective defined as an standard” to legal reduce the Atkins claims. possibility feigned Specifically, the Com- monwealth petitioner recommends a be to an required prove below, I.Q. score of 70 or adaptive establish limita- functioning by tool, tions a formal assessment and demonstrate onset age eighteen, before without reliance on affidavits of interest- ed family members or the “creative interpretation” of school Brief, records. Commonwealth’s at 43. The Commonwealth also a points to measure taken the legislature Oklahoma a passing precludes law that defendants who have received a score of 76 or on a higher I.Q. standardized test from seeking Atkins relief. See 21 Okla. 701.10b(C). § Ann. Stat.

Appellee asks this Court to decline the Commonwealth’s to alter the Atkins request for standard several reasons. First, Appellee asks this Court to find this issue waived for the Commonwealth’s failure to raise it the during proceedings or its statement pursuant Pennsylvania to Rule 1925(b). Second, of Appellate Procedure Appellee finds un- founded the Commonwealth’s assertion that clinical definitions are biased towards an penalty agenda anti-death as capital litigation a small fraction presents of the issues the employing assessment of disability, which extends to a broad to, array education, of contexts but not including, limited services, medical and men- and the of governmental provision there is no evidence Lastly, asserts tal health fields. in the Atkins change warrants a in this case that of fraud failed to show that claims the Commonwealth standard courts unworkable as PCRA Miller standard is the current when credibility pre- determinations making are capable testimony. facts and conflicting sented successfully argued has that the Given Commonwealth disability by prepon- failed to his intellectual prove evidence, unnecessary it is for this Court derance of the a more strin- request adopt evaluate the Commonwealth’s framework as has not satisfied gent implemented Miller. three-prong standard this Court Moreover, that this Court proposes while the Commonwealth Miller, clinical of intellec- reject revisit definitions should scores, elimi- consider cutoff disability, adopting tual evidence, on anecdotal petitioner’s ability rely nate the challenge existing to the substantive Commonwealth’s appro- involves concerns that would be more policy standard Pennsylvania Assembly.8 considered General priately with the responsibility this Court was tasked Although review Atkins claims in of the setting procedures light inaction, has refused to repeatedly this Court Legislature’s the Atkins standard which derives from existing redefine recognized by Supreme clinical definitions United States DeJesus, 106-107, 58 A.3d at in Atkins. See 619 Pa. Court 85; 227, Accordingly, 592 Pa. at 924 A.2d at 615. we Crawley, IQ consistently adopt for has refused to a "cutoff score” 8. This Court retardation, determining mental since it is the “interaction between functioning adaptive limited intellectual and deficiencies skills that 227, Crawley, mental retardation.” 592 Pa. at 924 A.2d 615 establish Miller, 155, note, 631). (quoting Pa. at 888 A.2d at On a similar 585 vote, Court, by recently Supreme a 5-4 struck down the United States I.Q. legislation provided petitioners who had an Florida which precluded right relief and were from score above 70 had no to Atkins —Hall, any disability. presenting further evidence of intellectual U.S. -, Reasoning this cutoff violated the 134 S.Ct. at 1990. strict Eighth punishment, prohibition Amendment’s on cruel and unusual provided petitioners must allow who Hall Court that Atkins standards accounting margin I.Q. range for the test’s of error to score within an regarding disability difficul- present additional evidence of intellectual adaptive functioning. ties in to alter the standard for request decline Commonwealth’s for Atkins disability Penn- measuring purposes sylvania.

III. CONCLUSION reasons, For the we hold that the PCRA court foregoing relief; in granting Appellee’s petition accordingly, erred for the PCRA court’s decision and order of accompanying June 28, 2012, Appellee “mentally which found retarded” and ex- hereby from the death vacated. We remand empt penalty, the trial court for reinstatement of the death sentence. Jurisdiction is relinquished. EAKIN join opinion.

Justices and McCAFFERY joins 1,11(A) Chief Justice CASTILLE Parts and III of the opinion.

Chief Justice files a concurring opinion. CASTILLE Justice BAER files a in which dissenting opinion Justices join. SAYLOR TODD CASTILLE, concurring.

Chief Justice I, join 11(A), I Parts and III of the Majority Opinion. The Court, in my judgment, properly reverses the PCRA1 court’s vacatur of death appellee’s grounds sentence on that he is retarded, v. death-ineligible under mentally and thus is Virginia, (2002), U.S. S.Ct. 153 L.Ed.2d 335 which held murderers to be proven “mentally retarded” (Part cannot receive the penalty. ultimate The second claim 11(B)) asks the Court to consider a more basic question posed by cases such as this: whether the construct and approach developed for considering generally claims should be Atkins in unthinkingly applied involving cases a retrospective claim, i.e., a claim by forwarded a defendant never diagnosed with mental retardation in minority, collaterally his now at- tacking capital judgment. Majority The declines to alter Act, etseq. § 1. Post Conviction Relief 42 Pa.C.S. 9541 better suited are standard, questions that such concluding the view, and my Assembly. Pennsylvania the General for Atkins primary in the Court’s joinder notwithstanding my considering the in favor of weigh factors analysis, several any review of claim in tandem with second Commonwealth’s (1) central this Court’s of the decision below: the propriety (2) role in cases; central particularly the Court’s role in capital framework procedural the substantive and both establishing us the claims, upon forced for a circumstance Atkins; (3) wake of in the Assembly the General inaction of where, our most example, area for nature of this dynamic the Dejesus, Pa. v. Commonwealth teaching recent (2012) and decision hearing after the was issued A.3d 62 (4) authority had no below; the court the fact that its decision than what existed when standard follow a different (5) eye blind rendered; not to turn a duty our Indeed, the case as has often been claims. fraudulent matters, exist even if the Com- duty our here should capital claim.2 not forward the specifically monwealth did I. otherwise

Atkins one-way High a Court’s exception in the penalty individualized assessments upon core insistence scheme dictated of trials. Under the phase capital Court, including mental capital a defendant’s High condition— after variety impairments was, a — That is be- mitigation. relevant circumstance remains —a teaches, cause, defendants are capital all High Court assessment, irre- entitled to an individualized constitutionally crime, the of addition- enormity gravity of the of their spective Thus, the states. judgment al or the aggravators, fac- identify single forbidden to constitutionally states are murders, a by prisoner or a murder committed say mass tor — solely deter- life for murder —as already serving imprisonment "intellectually Majority, employ often the term 2. Like the I will most where, by necessity, prior except term in this concurrence disabled” adopted. litigated the new term was makes more sense in a case before 571-72, 13-14, n. 2. Majority Opinion, at n. 99 A.3d See of eliminated the individualized penalty. minative Atkins defendants, in paradigm only assessment favor of —but intellectual only specifically proven for those murderers with a DSM-IV, condition: mental retardation under the renamed disability intellectual under the the wide Despite DSM-V.3 of intellectual those variety possible impairments attending condition, with the has dictated that all are to be Court if they treated as were the same. decision,

As a Atkins reaches death-eligibility backwards time, offering prospect of relief for death-sentenced mur- judgments derers whose were final when Atkins altered the law, and who had an opportunity present evidence of mental impairments or disabilities for individualized assessment. When Atkins was decided there were death-sentenced defen- (such dants, as Pennsylvania mass murderer Harrison Graham4) elsewhere, “Marty” were who removed from death row no or from the opposition appeal government, since there was never any dispute they serious were standard, “mentally retarded” under the DSM-IV and were so But, defendants, in their diagnosed minority. there are other appellee, such as who scored well range above the cut-off on IQ multiple minority tests their were never diag- and/or nosed with intellectual disability. The retroactive effect of obviously creates a powerful incentive for these defen- dants, families, their compliant mental health experts, and (in defense counsel Pennsylvania, invariably same institu- counsel) tional and well-heeled federal pursue retrospective collateral slanted, claims of impairment premised upon exag- gerated, or false simply evidence of disqualifying “intellectual disability.” this,

In cases like involving retrospective claims of intellec- tual disability against a of backdrop testing occurring during the defendant’s minority revealing disability, no such "mentally 3. The term example retarded” is often cited an as of a treadmill, phenomenon euphemism whereby is coined a words replace perceived introduced to offensive terms themselves become phrase "euphemism offensive over time. The treadmill” was intro- (2002). Stephen duced in 2002. 212-13 Pinker, Slate, The Blank Graham, (1995). 4. See Commonwealth v. 541 Pa. 661 A.2d 1367 current evidence affirmative only present must not defendant but ago, decades capacity true supposed of his disability extant the lack of evidence also contend with must incentive there was no Atkins-based where minority, from his case, so, represented appellee, And in this the facts. slant (“FCDO”) in the Community Defender’s Office the Federal mental health below, produced parade “trial” called acquaintances, friends and family, as well as experts, alleged of opinions appellee’s to their own only express not of diagnoses opinions attack the disability, but also to made, motiva- apparent where there was no years ago, others or exaggerate prevaricate. tion to subclass particular that this separately emphasize

I write to be disability intellectual should claims of retrospective of is Pennsylvania of very high degree skepticism. with a viewed but, Atkins; obliged is also to this Court implement obliged claims, or fraudulent or dubious encourage approve not to in Penn- judges trial court constitutional or otherwise. Unlike Atkins claim a retrospective who see a sylvania, may single career, Court, all appeal responsibilities with direct this And, cases, it has to a positioned bigger picture. is see capital diagnosis a surrounding that the “science” apparent become subjective even in the best of disability highly intellectual disability claim of intellectual retrospective A circumstances. under Atkins a sentence of death forwarded in order to defeat circumstances, the best of much less not involve reliable does circumstances; susceptible manipulation the claim is Thus, I bias, attuned to that fact. trial courts must be not courts should with the Commonwealth agree respecting evidence dismiss actual childhood cavalierly so the usual defense just because a team of disability a final negate judg- in an effort to specifically hired experts, death, prove a different view and ment of hold predictably contrary all evidence intellectually very agile dismissing obliges in Atkins minority. Nothing from the defendant’s to remake the defendant’s power to vest in experts states example a presents prime health This case history. mental court, claim and single passing upon how a trial predis- of the full or insufficiently appreciative picture either of the relief of the actual merit posed grant irrespective claim,5 by “expert” testimony. can be misled slanted easily court

In to the errors made the lower patent addition reverse, I Majority which lead the do not believe properly are properly by generic that claims such as this resolvable The reference to the discretion of the collateral review court. retrospective must be deemed questions notion that credibility resolvable deference to deter- properly supposed minations who dismiss and de- involving present-day experts without ago, bunk tests administered decades memorialized any inaccuracy, incentive for which contradict their Atkins- purpose retrospective opinions judge deference which one —a may reject but another an exercise in indulge, judge —is studied I further view below. pretense. explain my

II. case, only test had an suggesting appellee IQ nearing intellectually disabled was a test range defense solely administered for the of a purposes proving retrospective claim, old, Atkins and conducted when was 44 appellee years more than 20 after years his commission of murder. The definition of “mentally retarded” set forth the DSM-IV (which Miller, adopted Court Commonwealth v. 585 Pa. 144, (2005)), 888 A.2d 624 of onset of intellectual requires age 18, to a disability prior age dutifully rule the Court enforced in Vandivner, 617, 1170, 1185 Commonwealth v. 599 Pa. 962 A.2d (2009), denied, 1038, 2060, cert. 559 U.S. 130 176 L.Ed.2d S.Ct. (2010). 416 The the age requirement. DSM-V retains of onset here, A claim presented such as that a present-day test defense administered to 44 appellee age solely for Atkins purposes, combined with the opinion guns, hired defense prior appeal The 5. serial PCRA in this involved the case lower court going lengths appellee premised upon to extreme to award a new trial legal theory. waived claim and a more than dubious See Common Hackett, 350, 978, (2008) (Castille, wealth v. 598 Pa. 956 A.2d 989-91 C.J., JJ.), denied, concurring, joined by McCaffery, Eakin and cert. 1285, 2772, Pennsylvania, Hackett v. 556 U.S. 129 S.Ct. 174 L.Ed.2d (2009). 277

615 ig- in childhood be tests non-litigation-driven requires it skepticism with the extreme nored, be approached should deserves. well-regarded pri- aby on appeal is represented below. FCDO also counsel of record who was attorney,

vate mistake, But, it make no on the brief. do not appear counsel of the claim litigation controlled FCDO three different The devoted court. FCDO before five made use of also hearings; appellee to the PCRA lawyers to the FCDO: answering all experts, apparently mental health to is addressed experts from the defense correspondence routinely who experts are experts counsel and FCDO or other challenges when the FCDO raises testify familiar with The Court is mental health.6 implicating claims appellee testifying in were: experts four favor 6. The (PhD (1) testify on psychology), who was utilized Barry Crown earlier represented by the FCDO or its defendants/petitioners, behalf of Williams, 219, incarnation, 61 A.3d 979 v. 619 Pa. in Commonwealth Lesko, (Atkins claim) (2013) County), 609 (Allegheny Commonwealth v. claim) (Westmoreland 128, (2011) (mitigating evidence Pa. 15 A.3d 345 501, (2006) Carson, 220 590 Pa. 913 A.2d County), v. Commonwealth Wilson, 439, (same) Pa. County), v. 580 (Philadelphia Commonwealth (2004) (same) County), (Philadelphia and Commonwealth 919 861 A.2d 473, (2004) (same) Williams, (Philadelphia 846 A.2d 105 v. 577 Pa. County); (PhD (2) Armstrong psychology) who was utilized Dr. Carol Miller, incarnation, FCDO, testify v. in Commonwealth or its earlier evidence) (Chester 1, (2009) County), (mitigating 638 605 Pa. 987 A.2d (same) Zook, 11, (2005) 887 A.2d 1218 v. 585 Pa. Commonwealth Johnson, 283, (Lancaster 815 A.2d County), v. 572 Pa. Commonwealth (Berks (2002) (diminished County), v. capacity) Commonwealth 563 evidence) (Pa.2001) (mitigating (Philadelphia Bracey, 787 A.2d 344 Stevens, 171, A.2d 507 County), 559 Pa. 739 and Commonwealth v. (1999) (same) (Beaver County); (PhD (3) psychology) utilized the FCDO who was Dr. Daniel Martell Robinson, 345, A.3d testify 623 Pa. in Commonwealth v. Williams, claim) (2013) (Lehigh County), 619 Pa. (mitigating evidence claim) (Atkins (Allegheny County), Commonwealth v. 61 A.3d 979 DeJesus, (2012) (same) (Philadelphia County), A.3d 62 619 Pa. (2008) (same) Miller, 333, Pa. 951 A.2d 322 and Commonwealth v. 597 County); (Dauphin and (M.D. (4) by the FCDO psychiatty) who was utilized Dr. John O’Brien Ali, alia, in, v. testify inter Commonwealth or its earlier incarnation to 309, (2014) (Philadelphia County); Commonwealth Pa. 86 A.3d 173 624 evidence) (Philadel 1, (2013) (mitigating Roney, 622 Pa. 79 A.3d 595 v. Banks, 56, 1129 612 29 A.3d phia County); v. Pa. Commonwealth 616 claims, penchant raising against

the FCDO’s for such often “clients;” and, clients, according the wishes of their to some by not all mental-health-based claims are pursued FCDO Birdsong, see v. aboveboard, 203, Commonwealth 611 Pa. 24 (2011) 319, (Castille, C.J., concurring), A.3d 352-53 and some are apparently pursued only because defendant declines intervention, FCDO to claim the leading organization Commonwealth v. mentally incompetent. defendant must be Ali, v. 309, 173, (2014); Commonwealth 624 Pa. 86 A.3d 179 Saranchak, (2002). 521, 1197, See 570 Pa. 810 A.2d 1198 generally Commonwealth v. 17, 244, Spotz, 610 Pa. 18 A.3d (2011) (Castille, C.J., J.). 339 concurring, joined by McCaffery, resources, The vast represented FCDO’s federal its lawyers cadre of and roster of are experts, deployed through- Commonwealth; courts, out the county individual trial matter, for that prosecutors only who see the occasional case, capital may be unaware of the bigger picture, and the at work.7 strategy extraordinary This shadow capability (2011) executed) (Luzerne (competency County), to be Commonwealth Gibson, 332, (2011) evidence) v. (mitigating 610 Pa. 19 A.3d 512 Miller, 333, (rebuttal (Philadelphia County), 597 Pa. 951 A.2d 322 claim) support (Dauphin County). appears of Atkins It in, that Dr. O'Brien has also testified on behalf of the Commonwealth alia, Philistin, 358, (2012) inter Commonwealth v. 617 Pa. 53 A.3d 1 Keaton, 675, (Philadelphia County), Commonwealth v. 615 Pa. 45 A.3d (2012) (Philadelphia County), 1050 Birdsong, Commonwealth v. 611 Pa. 203, (2011) (Philadelphia County), 24 A.3d 319 Commonwealth v. Wat- son, 483, (2008) 597 Pa. (Philadelphia County), 952 A.2d 541 Sam, 523, (2008) v. (Philadelphia Commonwealth 597 Pa. 952 A.2d 565 County). (PhD expert, psychology), A fifth testify Jethro Toomer did not but (flawed) prepared report upon relied Dr. Crown. Dr. Toomer has in, alia, evidence) (Phila- Roney, testified (mitigating inter 79 A.3d 595 Williams, 219, (Atkins claim) delphia County), 619 Pa. 61 A.3d 979 Banks, 56, (Allegheny County), (competency 612 Pa. 1129 A.3d to be (Luzerne executed) Smith, 127, County), Commonwealth v. 606 Pa. (2010) evidence) (Delaware Miller, (mitigating County), A.2d 1143 (Atkins claim) Pa. (Dauphin County), 951 A.2d 322 and Common- (2007) evidence) Rainey, wealth v. (mitigating 593 Pa. 928 A.2d 215 (Philadelphia County). 7. Pennsylvania The FCDO has refused to disclose courts their actual court, authority funding lawfully pursue capital matters in state See, causing delay e.g., Proceeding further in a number of cases. In Re Pennsylvania Compel, in Which the Commonwealth Seeks to No. 2:13- tactics, FCDO, me additional give and its demonstrated aby Atkins claim is retrospective pursued when a pause tests in his subjected objective who was both defendant intellectually he was not which indicated minority, plainly tests with the Atkins disabled, diagnosed never otherwise and was disability. susceptible are peculiarly

The fact that Atkins claims if a court shows a troubling becomes even more manipulation retrospective not to the assessments only naive deference to those institutional but also deference opinions experts, of contrary findings of the of all-too-easy dismissal experts’ others, during youth, the defendant’s ago, rendered decades falsely where there was no incentive to and in circumstances case, blithely hired experts In this FCDO’s report. (as IQ test results well as other appellee’s dismissed childhood on objective capacity) grounds indicators of his intellectual incomplete regarding had information they supposedly know who surrounding testing, the circumstances did not tests, or that the tests are unavailable to administered if testers scoring; the data set and the the childhood verify A conscien- justify had a burden to themselves. explain “junk should not fall for this sort of science.” jurist tious trial naive or as the jurists quick Trial should not be so PCRA opinions here was to assume that the dismissive judge simply persuasive, are a much less experts proper, of hired PCRA inconvenient, consistent, and unanimous basis to simply ignore youth. Prop- accounts from the defendant’s contemporaneous offer their current opinions are free to erly-qualified experts court, can to cross- they certainly respond to a that what believe is they examination based the fact upon objective accounts from the defendant’s contradicted all understood, But, does not expertise, their youth. properly from the defendant’s as fact which tests establishing extend Indeed, my or reliable. legitimate be deemed youth should (FCDO questioning funding capital case from Court cv-01871 removed U.S. District Court for the Eastern District of Common Pleas to Pennsylvania); appeal pending before the Third an in that matter is Philadelphia, No. v. Association Circuit in Commonwealth Defender 13-3817. view, jurist the trial here should have treated the defense retrospective cavalier attitudes as itself that the experts’ proof claim bogus. III. disabled individu intellectually

The Atkins Court held a penalty announcing als are from the death without exempt particular procedure national standard or a for prescribing Instead, left assessing controlling High the status. the Court would exemption it to the individual states to devise how “The with At implemented. implementing be States tasked areas,” DeJesus, with 58 gray kins have been faced various i.e., 81, standard, A.3d at and the constitutional inexplicit disabled,” “mentally “intellectually retarded” or is both diffi subjective. cult to apply highly The Pennsylvania Assembly’s response General to Atkins silence, obliging implement has been this Court to the deci sion. We have trial provided specific guidance courts with both trial level claims and claims respecting retrospective Sanchez, raised on collateral review. v. Commonwealth 614 1, (2011); (Pa.2009); Pa. 36 24 Bracey, A.3d 986 A.2d 128 Miller, (Pa.2005). 888 A.2d 624 This Court followed the inferentially DSM-IV’s clinical definition in Atkins approved that, retardation, and held to establish a claim of mental (1) prove by defendant must a of the evidence: preponderance (2) substantial intellectual of the impairment; impact impair ment on the defendant’s everyday (significant life deficits in (3) adaptive functioning); and manifestation prior age 18. Miller). DeJesus, (citing 58 A.3d 76-77 appellate On review, this employs Court a deferential standard considering whether the factual are findings supported by substantial evidence and whether the conclusion drawn therefrom legal clearly erroneous. Commonwealth v. 592 Pa. Crawley, (2007). 924 A.2d 616 — Florida, U.S. -,

The in Hall v. High Court 134 S.Ct. 1986, 188 (2014), many L.Ed.2d noted that states utilize a Atkins, test similar to the test three-part DSM-IV outlined play] role states [that the “critical acknowledged and further infor- the Court providing advancing protections how intellectu- understanding an of mation that contributes Hall, 134 assessed.” measured and should be disability al notch ratchet one But, one-way its turning at 1998. S.Ct. authority of the in Hall narrowed the decision 5^4 tighter, that states disability, holding to define intellectual states 70) (in Hall, number IQ a fixed test rely cannot on if disability of a defendant’s conclusive evidence i.e., “the test’s acknowl- range, a certain that score falls within meaning, practical margin and inherent edged error” — restriction or lower. This terms, IQ if tests reveal an IQ because exists, majority, Hall according to the inexplicably discretion to define unfettered give “Atkins did not States Id. at 1998. protection.” the full of the constitutional scope requires Amendment Eighth thus held that The Court IQ to with such a demonstrated petitioner permit states retardation, including mental evidence of additional present Id. at deficits. adaptive functioning testimony regarding 1998-99. case; the on this nor does it address light

Hall sheds no of intellectual inherent in assessments problem retrospective Miller, already this Court disability purposes. for Atkins within a IQ falling that an score or scores acknowledged (65-75) considered; we are compli- will be “range” particular case, IQ the of tests performed ant with Hall. In this results range far removed from the minority were during appellee’s And, the had no disability. Hall Court indicating intellectual that assessments of retrospective to address the fact occasion difficult, sub- subjective, are and disability highly ject to manipulation. is retarded/intellectually disabled standard mentally

The an incentive to skew to even in cases without apply, difficult of, facts; the for an certainty example, the it does not admit to Simmons, See, v. 543 U.S. age e.g., Roper cut-off. (2005). Instead, an Atkins claim L.Ed.2d 1

S.Ct. evaluations, other IQ turns the results of tests upon lack of minority. the defendant’s This speaking evidence retroactively when courts are asked to certainty amplified is attempting prove determine the issue. Death row inmates retroactively from diagnosis typically present a who administer or review new tests to establish experts level, backwards, present IQ extrapolate and then then offer opinions reflecting minority, finally on the defendant’s comment on the results of the tests and evaluations adminis- during minority, tered the defendant’s which were undertaken education, not for the non-Atkins purpose of assessment and but of the penalty. instead for avoidance death The stakes defendant, here, high gets; are as as it and the knows full well that low test scores advance his This is prospects. another ratchet: As the one-way expert Commonwealth’s an explained: very easy IQ. “it’s to lower You can be de- just pressed, you not motivated.... But can’t be dull and N.T., 11/17/2011, actually pretend to be intelligent.” 52. This obvious fact raises a question appellee’s whether defense- produced IQ score of 57 should even in light be considered of two placed IQ childhood tests that his in the 80-85 tests range, that were supported by appellee early third test of in his adulthood, Thus, he Majority where scored an 82. is correct to find that the PCRA court erred when it determined appellee met the intellectual functioning prong Miller test.

The highly subjective: standard also the Court already has seen that experts routinely different the field reach abjectly opposite conclusions respecting who is intellec- disabled, tually purposes penalty least for of death ineligi- And, bility. it would be irresponsible ignore that personal beliefs of expert, obviously who knows the conse- quences testimony, may influence the opinion. Equally as troubling appears is that it the relevant “experts” cannot even on basic agree parameters, such as what causes Williams, 219, intellectual disability. example, For in 619 Pa. 61 A.3d an for the defense testified expert8 (quite logical- Musser, expert neurologist psychiatrist 8. The William a part Program Psychiatric who was of the John Merck at Western Clinic Pittsburgh, Pennsylvania. located in author) “was that mental retardation of this ly, in the mind encephalopathy,’ as ‘static injury a brain known formed from delivery, at the time of of pregnancy, occurs at end which life, result of in and is not the during very early stages or Yet, case, seemingly in this Id. at 986. childhood abuse.” no role in the defense of onset age played basic “cause” and Instead, appellee pre- conclusion. judge’s case or the PCRA that who testified experts from two different sented of activity the extracurricular to toxins and exposure his diagnosis their retrospective factored into boxing in his teens to exposure factors like Employing mental retardation. of harm- potentially in activities voluntary participation or toxins with the testimo- incompatible in one’s teens is ful to the brain intellectual injury causing that the brain ny Williams in life. This is but very early and occurs disability organic subjectivity ad hoc ready example apparent of the one in the At- disability intellectual surrounding “science” expert scenario. diagnosis kins retroactive

Furthermore, to the extent that to environmental exposure in one’s teens result brain factors and behavioral choices of some- diagnosis or the result should be damage injury, disability, intellectual at least Atkins-style other than thing the notion that Similarly, under the current reach of Atkins. affect cause intellec- environmental and behavioral factors into the relevance of disability necessarily question tual calls are disability intellectual IQ purporting prove tests Notably, minority. conducted decades after a defendant’s here, deeming the defense-administered appellee’s experts controlling adequate to be both IQ test score of 57 achieved in appellee the much earlier and better scores negate for environmental and did not to account youth, purport in the years elapsed events in life appellee’s behavioral which, events under the he was postage-of-onset since for the de- significant have accounted theory, may defense assuming legiti- Even performance. crease in appellee’s and behavioral theory that environmental macy defense style assessing factors are relevant view, ways. my cannot have it both disability, the defense 622 law, here was produced a matter of the defense test result intel- even relevant to whether establishing appellee

not have lectually age Appellee may today disabled before 18. intellectual but that not mean he disability; some sort of does within narrow ambit of disability had the that falls the specific Atkins, limited to strictly the set forth in which was exemption disability manifesting those who suffered from intellectual the of 18.9 age before view, the court failed to take these realities my when it fell for the diffuse presenta-

into consideration FCDO tion here.

IV. DeJesus, I also write to note that the decision in Court’s here, ruling which was handed down after the PCRA court Atkins lower claims to help facing retrospective should courts involved, DeJesus avoid the errors made the below. judge alia, inter a Commonwealth to the of the challenge propriety ap- three-factor test used to determine mental retardation assessments; Miller proved involving cases retrospective standard, the for a argued objective Commonwealth more also the of the challenged “preponderance evidence” burden of standard, for the more “clear and proof arguing rigorous DeJesus Court standard. The reaf- convincing” ultimately Miller, firmed the standards set forth in but offered further guidance when confronted with the of a prospect malingerer diagnosis disability or when there is no of relevant intellectual and the claim of during youth disability defendant’s retrospectively is raised on collateral review. Briseno,

The DeJesus Court noted that in Ex Parte 1 (Tex.Crim.App.2004), S.W.3d the court articulated seven Atkins evidence related factors it in weighing deemed relevant The Briseno court adaptive functioning. that the explained subjective, behavior criteria were adaptive exceedingly “undoubtedly experts opinions will be found to offer on both Apparently, Dissenting Opinion multiple 9. would view the inconsis- appellee's agile credibility tencies in Atkins theories as mere matters. Briseno, at 8. S.W.3d cases[.]” in most of the issue sides Briseno court offered its evidentia- reality, Because of Id. analysis. guide factors to ry factors to in DeJesus found these seven

Notably, this Court diagnosis where no formal apt particularly be claim disability age 18 and prior was made disability relief, seeking in the context of strictly forwarded a powerful “there [was] that in such circumstances noting DeJesus, and to slant evidence.” malinger incentive to ulterior motives were that these at 85. We concluded A.3d finder, “not to the Atkins fact argue to relevant consideration -Atkins post the defendant’s assessing only purposes for results, the assessing but also test intelligence aptitude Id. The Court for Atkins relief.” defendant’s overall case the that while the Briseno helpful, factors were indicated favored or any elevated to particular factors would not be fact to deter- status; left it to the finder of we presumptive and the mine whether the Briseno employed factors should be in an individual case. Id. 85-87. to be to them weight given in Briseno court were as fol- The seven factors identified lows:

(cid:127) during develop- knew the best person Did those who friends, teachers, family, employers, stage

mental —his time, at that mentally he was retarded authorities —think and, so, with that determination? if act in accordance (cid:127) them and carried plans Has the formulated person impulsive? or is his conduct

through (cid:127) it show that he leadership or does Does his conduct show led around others? (cid:127) to external stimuli rational and response his conduct in Is socially accept- it is of whether

appropriate, regardless able?

(cid:127) rationally, point and on coherently, Does he respond from or do his wander responses

oral or written questions subject subject?

(cid:127) in his own or effectively facts or lie hide person Can interests?

others’ (cid:127) any aside heinousness or surround- Putting gruesomeness offense, the commission that

ing capital did offense execution of require forethought, planning, complex purpose?

Briseno, at 8-9. The DeJesus Court did not itself S.W.3d address the factors in since we were application, remanding further proceedings. for Williams, DeJesus recently,

More that Court noted when the trial court determined the applicable Court, claim in post-conviction proceedings. The Williams however, did not find that the Briseno factors were implicated because the Commonwealth did not raise a claim of malinger- ing. judice squarely case sub

The an presents opportunity consider how the Briseno factors could trial help courts avoid errors. The Commonwealth here has all argued along appellee is malingering; emphasizes Commonwealth never appellee mentally considered in his youth; retarded and, fact, the test appellee’s scores from childhood show IQ mid-80’s, that his was in the low to which is well above the recognized IQ (70, standard for intellectual disability with a 5). The Briseno factors, of error margin plus of or minus here, properly applied weigh against any finding that appellee suffered from limited adaptive functioning. factor, the first

Respecting appellee diagnosed was never as retarded,” “mentally nor he mentally was labeled retarded by Instead, a teacher or school administrator. the school records injured,” establish that he was “brain considered which is not thing. Testimony same from Dr. Paul Spangler, who was employed as a at the psychologist Elwyn Institute outside of from to Philadelphia testified that the Ashbourne appellee School that attended specialized educating students with brain injury who had a of “minimal diagnosis brain N.T., 11/17/11, dysfunction.” Dr. Spangler 10. further testified that students with “mental diagnosed retardation” School; instead, were not normally admitted to the Ashbourne the special school was for students identified to similarly average intelligence, of low or being as appellee, dull/normal and Testimony Id. at 12-15. mentally not retarded. and childhood family members and from appellee’s affidavits “slow;” classified being that he was similarly suggested friends family by peers or identified and intelligence “low-average” as being mentally the same as as slow is not being members retarded/intellectually disabled. person at whether the formulated

The second factor looks at the them The evidence through. and carried plans well as acumen as relating appellee’s business proceedings strongly against surrounding weigh the murder the evidence the age claim this factor. Before on appellee’s retrospective lawn-mowing a managed develop small-scale appellee business, thriving landscaping which he into a grew business eventually snow removal. The business which later included office, and three employees, two full-time to include an grew who on receptionist a worked employees, including part-time his first truck for the business Saturdays. bought vehicle at 18. There was able to another age purchase 16 and from his mother and help that received appellee purchasing equipment. bookkeeping father related However, took testimony suggested appellee additional well as estimates for charge scheduling, writing of all of the Even received potential assuming appellee customers. business, to the administrative of his help aspects related fact remains that he ran a successful small business from murder, until the time of the which time he was sixteen twenty-second birthday, plainly a week before his occurred carry an for formulate them demonstrating ability plans all at a time where he had no incentive to hide through —and functioning. his actual intellectual

Furthermore, the facts of the crime show that underlying it appellee capable formulating plan carrying he contacted a friend to him find a hitman to through: help also money.” someone off for The Commonwealth “bump appellee co-conspirator actually demonstrated that and his murder, killer hired to commit the but that the hired someone proposed out he with the attack. disagreed backed because Hackett, 721-22 v. 534 Pa. 627 A.2d Commonwealth (1993). him find a Certainly, contacting party help a third to hitman, hitman, than the hiring and later a shows—better to formu- opinion expert ability of a hired retrospective —-the carry through. late a and it plan a

The third factor considers whether defendant was follower or a leader. to the dis- Again, returning examples above, appellee landscaping cussed ran his own business and kill plan Gregory Ogrod— established a to hire a hitman to he a from the plain Testimony indications that leader. her receptionist for his business established he hired favor, he money, suggesting because she needed the able to control and his business. organize Similarly, testimo- ny hearing appellee from also showed that had about taught short-selling himself stocks while he was in Even prison. though understanding explanation his and basic, short-selling might taking have been the initiative to And, learn about such a shows concept leadership. finally, there was testimony concerning appellee’s ability manipu- others, late for free securing lodging, misleading himself officer so he could visit his beach home. probation The fourth factor considers whether a defendant’s conduct in response to external stimuli is rational and appropriate, case, socially even if unacceptable. it was clear that wanted kill appellee Gregory Ogrod because the two men get along. did not into a Ogrod moved house (who Ogrod’s brother was also appellee’s employee). Og- appellee rod did not like that was not rent paying and the Hackett, living arrangement “went bad.” 627 A.2d at 721. kill Appellee’s response Ogrod obviously socially —to —was unacceptable, but it offered of the appellee prospect result he longer desired—he would no have to live with but Ogrod, would be able to continue the house. living factor, The fifth which on appellee’s relies consideration of to oral written response questions, irrelevant as there is in the record circumstance. nothing speaking can person whether the into account factor takes The sixth the circum- turning to effectively. Again, lie facts or hide knew crime, appellee that it is clear the surrounding stances him; that he made sure against could be used evidence what of for purposes to his friend given he had photographs the to lie girlfriend he asked his destroyed; were a hitman hiring in the crowbar used behalf; the and he also discarded his on Hackett, 627 the crime. a week after in a dumpster murder hearing, Additionally, at the PCRA at 722. A.2d prior related to a to the court had lied appellee suggested he he the court when told conviction breaking entering and that he could the shore so contracts at landscaping had while he was on on weekends to his shore house go continue to conduct at 27-28. release. work this factor. satisfies crime whether the factor considers the seventh

Finally, already As dis- and forethought planning. required itself (Marvin con- cussed, Spence) a co-conspirator and appellee (if in the got way).10 she girlfriend kill and his spired Ogrod to a hitman. When hiring a friend about Appellee approached a third Spence approached was unproductive, that avenue job. the actually “hired” for and appellee Spence who party key who had a to fell through, appellee, that alternative Wfiien (and house, co-conspirators) two other armed Spence the they and Dunne while Ogrod a crowbar to attack knives and fore- demonstrated amply The circumstances sleeping. were indeed, his friend appellee approached planning; thought killing the yet the spring a hitman in regarding Furthermore, later, July on 1986. much occurred armed that appellee the actual crime show circumstances scene, let the murder going to the prior co-conspirators house, intentionally approached into co-conspirators sleeping. the victims were they time knew the victims at a itself, and the various Hackett, 722. The crime A.2d at murder, forethought, planning, required commit attempts Dunne, unfortunate girlfriend, was the happened, Maureen 10. As it murder victim. patience; they any were not the result of impulsive appellee’s behavior on behalf.

I would conclude that the adaptive functioning limitations court, great found the PCRA and discussed in detail Majority and Dissenting Opinions, when considered in con- junction with the Briseno factors discussed above, do not at all support finding PCRA court’s suffered from appellee limitations, significant as was adaptive required establish disability by of the preponderance evidence. therefore, The court’s decision below is unsupportable, reversible.

Y. Finally, I write in respectful response to the Dissenting rejoinder, Opinion’s my which characterizes position as reflect- only FCDO, a concern with the ing conduct of the and further I claims that am “disregarding] the most basic facet of i.e., review,” appellate deference to credibility determinations 631, 2, of the court. 640-42, n. Dissenting Opinion, J.). 49, 2, (Baer, 99 A.3d at n. 55-56 I that some respect members of the turn a eye Court blind FCDO, to the questionable conduct of the my but concerns with the FCDO here are expressed only they as relate to a question, broader which the dissent never confronts. My jurisprudential concern—not a new in one this area —is direct- proper ed at the review paradigm when a court is faced with a (unlike retrospective Atkins challenge, and where with a mur- Graham) (or here,, derer such as Marty there were no findings indications) even of Atkins-style intellectual disability mani- fested during minority. defendant’s decision DeJesus

The unanimous in suggests this Court is not naive: retrospective Atkins claims are particularly ripe for fraud and abuse. of DeJesus. I was the author My here, position which is unconstrained the responsibilities of (as majority views), are the authorship dissent’s follows logi- DeJesus, cally from with a greater appreciation of what our with Atkins claims and records —such as experience continued dissent simple The issues are not so one—reveal. pretends. in a the Atkins arena resulted foray first into

The Court’s review because to collateral deferring question decision other pur- mental retardation for trial record addressed claim. establishing an Atkins and was not directed poses, (2003). Mitchell, A.2d 202 576 Pa. v. Commonwealth Mitchell, wake of disruptive in the Although unstated Atkins, that the General obviously expectation there was an act, implementation Atkins deferred the Assembly would since Assembly the individual states. The General of its new rule to of issues variety to consider the obviously positioned better Atkins, of the question the most basic attending including disabili- definition of mental operative retardation/intellectual Majority at 608- Opinion, burdens of etc. See also ty, proof, Indeed, was free Assembly the General 99 A.3d at 36-37. minimal Atkins command. farther than the go act, Faced with this The has failed to however. Legislature forwarded reality ripe challenges void and the cases, review claims set forth a standard to discrete this Court v. on collateral review Commonwealth of mental retardation Miller, 144, (2005), as the Pa. 888 A.2d 624 as well 585 Crawley, review in v. standard of Commonwealth appellate (2007). Thereafter, 222, we answered Pa. A.2d 612 592 924 claims on governing such questions and substantive procedural in v. 604 Pa. 986 Bracey, collateral review Commonwealth (2009), and governing 128 as as the standards A.2d well in v. claims at trial Commonwealth for Atkins procedures (2011). Sanchez, as discussed Finally, 614 Pa. 36 A.3d above, we reaffirmed that Atkins claims must be established evidence, that a suggested a of the preponderance the Briseno factors. may collateral review court consider DeJesus, A.3d at 84-88. decision, is, short, in a area. Our most recent dynamic

This here, DeJesus; not have and the PCRA court did relevant arise eye complications they To turn a blind its benefit. In my an abdication of responsibility. in this area can become of the recognition prospect the DeJesus Court’s judgment, Atkins claims is a in this case. reality retrospective fraudulent Thus, I on to an go suggest appropriate I have addressed it. the realities of paradigm given retrospective review DeJesus, with our decision in litigation, adjustments consistent DeJesus I here. apply alleg- the dissent also Continuing simplicity, its studied evidentiary expert that I have “value” of disregarded es which, can be opinions generically says, the dissent suffi- cient to a of fact. The dissent then states support finding that when testified that appellee’s experts appellee hired the clinical and sim- disability, met definition of (while contrary youth dismissed the evidence from his ply self-contradictory a view on environmental fac- articulating affecting IQ presented tors test suffi- performance), appellee “fact,” cient evidence of that court’s rendering Atkins conclusion unreviewable. Dissenting Opinion, 640- 42, 99 If only responsible judging A.3d 55-56. were so made, simple. In addition to the I have I points already that, fact, would note the ultimate determination of men- (intellectual disability) tal retardation a question is mixed fact. Crawley, law 924 A.2d at 615. If the court gets the law wrong including proper way to look at evi- — circumstances, dence in the proper and the bounds of so- expert called evidence—no deference is due.

The dissent has its toe merely dipped into the shallow end of this of water. The trial particular, deep pool court “credit- Atkins claim. I ed” a thoroughly bogus join retrospective Majority’s mandate for this additional reason. BAER, dissenting.

Justice a Following hearing on the Atkins1 claim Rich- brought by ard Hackett which (Appellee), required Appellee prove, by evidence, preponderance mentally of the that he is retarded adopted by this Court Common- pursuant to the standard Miller, wealth v. 144, (2005), 585 Pa. 888 A.2d 624 the PCRA court relief. the granted accepted Because court 2242, Virginia, 1. See v. 536 U.S. 122 S.Ct. 153 L.Ed.2d 335 (2002). by the contrary proffered evidence evidence, rejected the the Commonwealth, appropriate met it found that and, in Miller set forth mental retardation of definitions Majority The death therefore, penalty. for the ineligible is the support not the record does reverses, that concluding conclusion is its findings. Respectfully, court’s factual lower of re- standard appropriate the under unsupportable simply experts. from five court heard The PCRA appeal. view on that, to a reasonable opinions their of them offered Four mentally retarded. certainty, Appellee of scientific degree accompanied This evidence that he was not. opined One or that, supported varying degrees, to testimony by other for six listening After expert opinions. their undermined nineteen page thoughtful docketed a the court days, PCRA concluding to the record with careful citations opinion replete were more credi- and other Appellee’s experts that The PCRA the by Commonwealth. presented ble than because, as the conclusion opposite could have reached court evidence of record Majority, there was by recognized normal” mental retardation or “dull finding either a support court, However, listening after once PCRA functioning. testimony, adjudged days the five and six experts case, decision, least on this credibility and reached its fails to issue, Majority inexplicably The herein was over. reversing it relies on in that the evidence recognize the fact- rejected by considered and already court has been constitutes of the evidence Majority’s re-weighing finder. The am of review.2 I thus of our standard appellate an abuse I have my point, dissent. To make adamantly compelled then, seriatim, the various all of the evidence reviewed Majority. by discussed points execution of men- has barred the Supreme

The Court U.S. Atkins, 304, 122 S.Ct. 536 U.S. tally persons. retarded by Justice in acknowledge position forth the Chief Although I set 2. Federal Com- regarding with the concurring opinion his frustration his cases, capital litigation strategies in munity Office and their Defender's Majority Concurring Opinion, like the respectfully I believe that herein, appellate review: disregarded facet of the most basic has credibility of the PCRA determinations are bound the factual we findings supported the record. where those are court Miller, 153 L.Ed.2d In 335. 585 Pa. 888 A.2d we retardation, adopted the criteria for mental diagnosing which commonly is now more referred to as intellectual disability, by that is used the American Association on Intellectual and (AAIDD) Developmental (previously, Disabilities the Ameri- (AAMR)) can Association on Mental Retardation and the criteria, American Psychiatric Association. Under these as Miller, set forth in the following requirements must be met 1) for a of mental finding retardation: limited intellectual 2) 3) limitations; functioning; significant adaptive and onset of Miller, age condition before the of 18. 888 A.2d at 630.3 retarded, mentally disabled, To be considered intellectually or a petitioner must these three prove criteria a preponder- Id. ance of the evidence. 631.

The in PCRA court this case properly applied standard we established in Miller and concluded that met the Thus, definition of mental retardation. the only question before us on is whether appeal the PCRA court erred reaching this conclusion based on the evidence presented. “our regard, standard of review of the PCRA court’s determination regarding whether a petitioner mentally re- fact,” tarded is a mixed of law question which we have described as follows:

A question whether a involving petitioner fits the definition of mental retardation is fact intensive as it will primarily be explained fully 3. As we more in Miller: analysis begin proper [0]ur of this issue must with the definition of purposes "mental application retardation” for of the of Pennsylvania. Supreme The United States Court cited two different Atkins, definitions of "mental retardation” in and we will first consid er these definitions. The AAMR defines mental retardation as a "disability by significant characterized limitations both in intellectual functioning adaptive expressed and in conceptual, behavior as in the social, practical adaptive skills.” Mental Retardation at 1. The Psychiatric American "sig Association mental defines retardation as (an nificantly subaverage functioning approximate of below) ly age years 70 or with onset before and concurrent deficits Thus, impairments adaptive functioning.” or DSM-IV at 37. court, noted the PCRA both definitions of mental retardation 1) incorporate 2) concepts: three functioning; limited intellectual limitations; 3) significant adaptive age of onset. 888 A.2d at 629-30. multiple and involve experts upon based Accordingly, our standard credibility determinations. findings supported by the factual are review is whether conclusion drawn legal and whether the substantial evidence highly erroneous. We choose this clearly therefrom is that finds the facts standard because the court deferential will, court and so reviewing will them better than the know to be more likely of the law to the facts is application its accurate. 979, Williams, 219, Pa. 61 A.3d 981 v. 619

Commonwealth 222, (2013) v. 592 Pa. 924 (quoting Crawley, Commonwealth (2007)). 612, 616 A.2d review of the of relief is limited grant post-conviction

Our an examination of whether the court’s determination is PCRA error. legal the record and free from Common- supported by (2002). Moore, 508, 1212, 1214 n. 1 569 Pa. 805 A.2d wealth v. court, the factual of the findings We cannot disturb PCRA credibility on the of wit- passes which hears evidence and record, nesses, if are the even where the they supported v. support contrary findings. record could Commonwealth (2006). Jones, 202, Additionally, our 590 Pa. 912 A.2d 268 of the court findings of review is limited to PCRA “scope court’s hearing, and the evidence on the record of the PCRA light prevailing party.” viewed in the most favorable to the (2005). 56, v. 585 Pa. 889 A.2d Duffey, Commonwealth if the court’s Accordingly, regard PCRA determinations supported by Atkins claim are the record and error, them, legal free from we are bound even where our reading support contrary of the record also reveals for find- ings. criteria, first which is whether

Regarding functioning by preponder- demonstrated limited intellectual evidence, the court found that he had. ance of the view, the record and my finding supported by this factual Crown, Dr. an in clinical Barry expert free from error. legal with decades of neuropsychology and forensic psychology retardation, with mental tested experience treating patients 22, 2009, Intelligence on the Wechsler Adult July on (WAIS), Dr. Paul expert, which the Commonwealth Scale individually standard” of ad- agreed “gold was the Spanger, (N.T.), Testimony Hearing, ministered tests. Notes of I.Q. underly- scored an of with 61. (74), reason- comprehension perceptional scores in verbal ing (58), (53), (65), ing working memory processing speed fell below the threshold score of 75 and within the which each functioning.4 defined range sub-average test, re- administering In addition to Crown exhibits, evidentiary viewed the facts of the case and the counsel, that, trial based Appellee’s prior opined talked to information, mentally review of this mildly on his (“With 5/11/2011, at 53 re- Hearing, retarded. IQ, to his which is one of gard intelligence quotient, prong definition, certainly he falls within the and the guidelines diagnostic disability criteria for intellectual or mental retarda- tion.”). Continuing, Appellee’s I.Q. Dr. Crown stated that placed him “below the first of the percentile” population. Id. at 63. noting

Further on homogeneity5 Appellee’s subscale scores, Dr. Crown testified that he found no reason to believe fraud, the Appellee’s malingering score was result of or and explained that there were indicators of specific malingering N.T., which were present Appellee. not with Atkins hearing, (“And 5/11/2011,at 64 in who are or people retarded intellectu- disabled, there a ally great should be deal of homogeneity. addition, interview, in my clinical he was forth- forthright and coming. There was that he was nothing suggest attempting this.”) to fake Dr. Crown also testified that his about opinion Appellee’s sub-average intellectual functioning supported explained functioning 4. We in Miller that limited intellectual is best I.Q. represented by approximately scores which are two standard (or (100), points) provided deviations below the mean "a and subaverage capability commonly intellectual is ascribed to those who test below 65-75 on the Wechsler scales.” 888 A.2d at 630. context, Thus, "homogeneity” logical consistency. 5. In this refers to Appellee's consistency, sub-scores indicated internal which would be retarded, expected mentally for one who than is rather one who is attempting to fool tester. factors, early academic including by several other struggled times and first three grade he history: repeated deficiency as links to mental had reading; genetic he with brother; to toxins exposed he was father and by his exhibited difficulty and he had boxing; engaged he early age; at an trial. at his criminal of his defense concepts understanding assistant Martell, and psychologist a forensic Dr. Daniel and Behav- Psychiatry Department in the clinical professor Medicine, Dr. agreed at UCLA’s School ioral sciences N.T., Atkins mentally retarded. is Appellee Crown all of 5/12/2011, that based on at 32-33 (explaining Hearing, from when IQ three test scores including Appellee, the data on child, subaver- clearly significantly has a was a “[h]e I it’s I it’s real and believe function and believe intellectual age for true.”). way there a to test testified that Dr. Martell Index, and that Mittenberg referred to as the malingering, valid after index. applying of 57 remained score that he was not Id. id. at 18 17; conclusion is (“My are, fact, valid it’s a real data and That those malingering. (“He He for Dr. Crown. id. score.”); malingering was not evidence There’s no Armstrong. not for malingering tests.”). on of these malingered any record that he has O’Brien, evaluated and a psychiatrist, Dr. John and experts, and conclusions of other reviewed the records for mental met the criteria diagnostic concluded that 5/12/2011, at 177-178. Hearing, retardation. and de- Armstrong, neuropsychologist Finally, Dr. Carol a clinical interview of fense conducted expert, him, subtests forty-five neuropsychological administered judgment, memory processes, reasoning, which assessed tasks, included abilities, different ability perform verbal N.T., given by test Dr. Crown. parts two of the has testified that Appellee at 90-93. She Hearing, id. functioning, significant subaverage re- substantiated Dr. Crown’s the results she received that Id. at 93; Additionally, Dr. 98. I.Q. score of 57. ported Id. malingering. not Appellee that Armstrong testified had neuro-psychological that 94-95. She observed birth, that problems subsequent exposure to toxins adulthood, through injuries, a child and as well as head Id. at 104-06. of his brain. hampered growth Crown, The PCRA court relied on the of testimony Drs. Martell, O’Brien, and as well as Armstrong, testimony from Appellee’s family his assistance in the regarding family’s kennel from the of ten puppy age eighteen, which involved the use of toxins multiple year, testimony several times a business, about lawn care which involved his use of pesticides without the benefit of a or respirator protective clothing, about in Appellee’s involvement a boxing concluded, club for a when he was fourteen. year It based on the evidence and the that experts’ opinions, demonstrated sub-average functioning. conclusion,

In reaching this the PCRA court considered and rejected the testimony of the expert, Commonwealth’s Dr. an Spangler, expert and intellectual developmental disabili- ty, who reviewed Appellee’s elementary school and hospital records, and concluded that Appellee’s I.Q. range “dull normal” N.T., rather than mental retardation. 11/17/2011, at Hearing, 12. Dr. Spangler’s conclusion regard primarily derived from three prior I.Q. tests adminis- tered to Appellee: a 1972 test by administered St. Christo- school, 80; pher’s with a score 1979 test administered the Counseling (CORA), or Referral Assistance Services 85; a score of and a 1988 Beta-2 screening test administered officials, by prison with a score of 82.

In directly comparing parties’ experts, lead the PCRA court found Dr. Spangler’s conclusion less credible than that of Dr. premised Crown on its observations Dr. Spangler did not personally interview or administer any devel- opmental or tests and did not dispute validity of the test administered Additionally, Crown. the court noted Crown, that Dr. Spangler agreed with Dr. as well as all of the other defense experts, that there was no significant malinger- Atkins Hearing, ing by Appellee on Dr. Crown’s test. 11/17/2011, at 27 (stating did not purposefully (“I id. at 34 answers); false give actually don’t think he’s (“I malin- significant didn’t feel there was id. at 151 lying.”); Spangler’s also observed Dr. The PCRA court gering.”). him have caused may that motivation testimony Appellee’s test, may Dr. and therefore slowly more on Crown’s work Ct. by points. his score to fifteen PCRA depressed up have however, measure, score Appellee’s by at 7. Even Op. (72). range in the for mental retardation remained that Spangler Dr. persuaded by The court was not PCRA earlier, that test results indicated higher I.Q. three Appellee’s retarded, instead mentally accepting Appel- was not tests were why about these earlier experts’ explanations lee’s question on the factual of whether persuasive not sup- limited intellectual The record functioning. suffers from acceptance Appellee’s experts’ Court’s ports PCRA regard. in this instead of Commonwealth’s opinions court noted Dr. Crown’s Specifically, that opinion Appel- three scores did not his change that these 8; N.T., mentally Op. lee was retarded. PCRA Ct. 1979 test and at 84 to the

Hearing, (referring alter his about whether opinion that it did not stating Dr. Specifically, intellectual functioning prong). meets the that none of the three tests altered explained prior Crown test, I.Q. represented the 2009 with a score of opinion that because, to the 1972 test adminis- regard test adminis- school and the 1979 by Christopher’s tered St. CORA, circum- there was no information about the tered administered, in which the test was who administered stances it, test, a full or or how it was scored. partial whether it was that, from the stating to the 1972 test and (referring Id. score, he tell about the circum- nothing of the could report whom); or id. stances in which the test administered clinician, rely as a he was unable to on (stating at 84-85 that in assessing Appellee’s from the 1972 test reported the score to the 1979 test functioning); (referring intellectual id. at 82 it was administered. I don’t “I don’t know how explaining it it was—the whole or whether was even know whether WISC WISC, very systems. which is common school partial it. That actually report I’m not sure who administered And person two is a PhD and the other has signed by people. One test did degree.”); (explaining a master’s id. at 84 functioning not alter his view of because “a from development change year year. child’s can So time.”). just that’s one testified that with point Crown results, test it not even clear what test respect to the 1972 was administered. Id. at 84. test,

Turning to the 1988 Dr. Crown explained Beta-2 test is not utilized to mental retar- generally diagnose dation and should not be relied upon assessing rather, it functioning; yield I.Q. is meant to an approximate Id. at Additionally, 80-81. the Beta-2 scores do not correlate scores, producing WAIS instead results that are approxi- scores, mately fifteen than points higher Appel- WAIS so that on the lee’s score Beta-2 of 82 was consistent with his 2009 score of 57 because it that WAIS revealed (“At lowest 1% of Id. at 81 of the population. tails distribution, the disparity roughly points 15 from the Wex- ler scale.... at [Appellee] is the tail of the distribution. 99 of lowest, people would be ahead of him. He’s at the lowest curve.”). point in that bell-shaped The PCRA court further noted that Dr. Martell also testi- fied that about nothing Appellee’s I.Q. older test scores al- tered his about opinion Appellee’s sub-average intellectual 10; N.T., functioning. Op. PCRA Ct. at Atkins Hearing, 5/12/2011, at 83. Dr. Martell Dr. Specifically, agreed with respect Crown with to the Beta-2 explained test. He that it is outdated, inaccurate, and tests non-verbal specific abilities I.Q. 5/12/2011, rather than overall Hearing, Atkins at 29-30. He further testified that whoever scored test did incorrectly, so so that in Dr. opinion Martell’s the score from the Beta-2 reported test should have been 74. Id. at 31. addition, Martell, according Dr. the Beta-2 test overesti- I.Q. mates one’s real points, ten to fifteen bringing Beta-2 score more in line with the 2009 test administered by Dr. at Crown. Id. 31-32. tests, the 1972

Regarding and 1979 Dr. Martell did not their dispute validity, opined but that these tests could not that Appellee insults” “neurological subsequent for account Ct. atOp. adult. PCRA young an adolescent and endured as (“I think those at 19-20 8-9; N.T., Hearing, legiti- can be scores] 1972 and 1979 to the [referring scores mate____But after history events in his significant there is he was injuries and where receiving head 14 where he age sys- the nervous that attacked poisons chronically exposed tem____”). battery given of tests that Explaining and de- were neuropsychological, Dr. Armstrong each lobe of the functions of specific to look at the signed tests the results of such brain, testified that Dr. Martell Id. at exposure. about neurotoxin corroborated his (“... affect certain are known to id. 27; at the pesticides in which he has those are the areas functions and brain poor performance.”). particularly testi- additionally relied on O’Brien’s

The court not change test results did older mony intellectual func- I.Q. indicated limited opinion 10; N.T., Hearing, Op. PCRA Ct. tioning. (“the assessment 5/12/2011, 178; [of more current id. at 180 tests].”) Further, Dr. the older is more relevant I.Q.] [than for the Beta-2 test was unreliable testified that the O’Brien Martell, id. at 183— Drs. and already reasons stated Crown early to 84, relating Appellee’s that without the raw data and were not reliable. Id. at tests, the test results themselves I.Q. (“[Without we’re prior testing, the raw data with the 184 testing whether or not that not in a to assess really position accurate____we know if that’s really in don’t result was fact result.”). an accurate the of Dr. the court relied on

Finally, PCRA during Appellee’s scores obtained Armstrong I.Q. the reliable as that ob- were not as childhood and adolescence 11. Dr. Op. Specifically, Dr. Ct. tained Crown. PCRA tests for two reliability the of the older Armstrong discounted due to the accuracy could their verify reasons: because no one because those tests testing process, lack of data about the and the of sport involvement with occurred prior Appellee’s Hearing, and to neurotoxins. boxing exposure 640 that there was no (explaining way verify at 109 id., correctly.”);

whether the tests were “done prior (“Well, ... chemical IQ prior exposure the that he had to his the seem like anomalies to the rest of boxing compared well the history, neurological findings, as (“... 2009.”); id. at 110 as I his information put Crown I.Q. test stand together, [the older out as outliers scores] so, something wrong either there’s with them or the and— that.”). history explains they actually declined after standard, Based on the of the preponderance evidence evidence in the record the testimony upon by relied PCRA court in its its conclusion that opinion supports Appel- lee met the constitutional standard of limited intellectual functioning. Both and the presented Commonwealth evidence, and the court made the necessary PCRA factual and credibility determinations to decide whether Appellee met his evidence, of proof. accepted burden It reject- ed the Commonwealth’s. Because its finding record, limited intellectual functioning supported by the there is no basis upon which to set aside the court’s rather, it, factual findings; uphold we should and should not search the record for contrary evidence that supports Commonwealth.

Rather than examine the record discern whether it determinations, supported has, the PCRA court’s Majority my respectful opinion, reweighed the evidence and substi- tuted its judgment for that of the fact finder. reweigh- Such ing does not comport our unassailable criteria for appel- White, late review. See Commonwealth v. 557 Pa. (1999) (“there

A.2d justification is no for an appellate court, record, relying solely upon cold to review the fact- determinations.”). finder’s first-hand credibility Nor it does comport with the deferential” “highly standard of review employed cases where an claim is raised. See Crawley, 924 A.2d at 616. In we Crawley, explained that the of whether question petitioner a fits the definition of mental retardation is fact primarily intensive because it is based on the of experts and involves multiple credibility

641 determinations; thus, findings the factual uphold we will and we will substantial evidence they supported by are where clearly therefrom unless drawn legal the conclusions uphold deferential standard highly Id. “We choose this erroneous. them better the facts will know ‘the court that finds because law will, its of the application court and so reviewing than the ” (quoting more accurate.’ Id. likely facts is to be to the 305, 288 F.3d Corp., Motors Acceptance Thomas v. General Cir.2002)). (7th 307-08 the Ma- credibility Appellee’s expert, of

By reweighing have, respectfully, in concurrence and the Chief Justice jority which, expert opinion, value of disregarded evidentiary certain- degree professional a reasonable of when rendered to See, e.g., of fact. McMa- ty, support finding is sufficient to (1971) (“The 534, 442 Pa. 276 A.2d Young, hon v. evidence. If the fact finder expert of a medical opinion it, fact what the expert gave chooses to believe he can find as Meals, v. 590 Pa. as an Commonwealth opinion.”); (2006) (same). experts Appellee’s psychiatric A.2d 213 When certainty of medical degree testified to a reasonable disability, met the clinical definition of therefore, per- evidence sufficient to presented had to find as much. mit the PCRA court context, Court’s Superior

In an we reviewed analogous concluding appellee order that the reversal of a trial court’s and, sexually was a consequently, from pedophilia, suffered Law, §§ 9791 et under Pa.C.S. predator Megan’s violent Meals, Superior rejecting 912 A.2d at 214. seq. that expert we of its conclusion analysis, disapproved Court’s finding the trial court’s of support insufficient to opinion was pedophilia: pedo- of the discounting finding

The [Superior Court’s] ignores expert because it troubling [the] is also philia cer- professional a reasonable degree opinion that,— was evidence. To was a tainty, appellee pedophile—itself “diagnosis” was not expert’s extent felt that the appellee of the accepted analyses fully square did not explained, erroneous, disorder, he was free to certainly was simply or 642 effect to the argue

introduce evidence to that and/or that the conclusions expert’s factfinder Commonwealth’s argument be discounted or But that would ignored. should the of the weight, sufficiency, expert’s affect the and not See, Davido, 52, 582 Pa. e.g., evidence. Commonwealth v. 431, (2005); Young, A.2d 442 n. McMahon v. 442 868 18 cf. (1971) (“The of a opinion Pa. 276 A.2d medical evidence”) is expert

Meals, 912 at 223-24. A.2d Commonwealth, Majority,

To the extent the the and the Concurring Opinion the court’s decision cred- challenge PCRA on that view iting Appellee’s expert opinions credibility, based weight is relevant to the of the evidence or even the admissi- (“An bility of that evidence. Pa.R.E. 703 base expert may See an on facts or that opinion expert data the case the has been made aware of or If in the personally experts observed. particular reasonably rely field would on those kinds of facts subject, or data in an on the forming opinion they need not be admitted.”). admissible for the to be opinion Once the evi- admitted, however, dence properly to McMahon pursuant Meals, the PCRA court was within its discretion “find McMahon, as a fact what expert gave as an opinion.” instance, A.2d at 535. For turning to the PCRA court’s specific factual relative to the findings first criteria of low intellectual functioning, Majority accuses the court PCRA of “dismissing” Appellee’s I.Q. pr e-Atkins scores because the prove veracity accuracy Commonwealth was unable to or tests, of the earlier and asserts that the Commonwealth is not required to do so because it is Appellee’s prove burden to 600-01, Maj. mental Op. retardation. 99 A.3d at 31. The court, however, did not Appellee’s pr dismiss e-Atkins scores; it them considered and found them less reliable as an accurate indicator of functioning than the 2009 test administered Crown the other Moreover, evidence presented by Appellee. it did not make this determination on the based Commonwealth’s failure to tests; verify accuracy of the it the lack of considered supporting testing data about the conditions as out pointed that proposition accepted proffered defense The court the most reliable. test was I.Q. recent the most conclusions Armstrong’s and Dr. on Dr. Martell’s also relied and involvement to neurotoxins exposure added to e-Atkins tests also I.Q. to the pr boxing subsequent in his score. the decline bears the burden unequivocal it is

While retardation, preponder- aby the burden his mental proving that Appellee The court found of the evidence. PCRA ance scores on notwithstanding higher met this burden factually testimony Appel- the of because it credited I.Q. earlier tests credibility determinations These are factual and lee’s experts. bound, to set aside such and I see no basis to which we are by the record. they supported are determinations alternative, Majority if an determining diagnostic individual meets the criteria for retardation,” mental and was therefore more reliable than other Additionally, tests. Id. at 183. Dr. explained O’Brien that the 1979 test administered by suspect CORA was because the purpose of that test was to determine if Appellee could be mainstreamed in education within special public school and, system, despite in a score of which resulting is above the range for mental retardation and suggests that main- streaming appropriate, the decision that followed was not to Appellee. mainstream Id. at 182.

The Majority next asserts that Appellee’s own experts offered conflicting opinions with to whether the regard pre- Atkins scores were reliable: Dr. “[W]hile Crown refused to rely on Appellee’s early I.Q. scores and Dr. Armstrong did not tests, comment reliability on the of these Dr. Martell felt scores, Appellee’s first two test which were above the thresh- 602, 99 retardation, Maj. Op. at were reliable.” mental old of however, Dr. assertion, point. misses the at 32. This A.3d reliable; were he the older tests not state that Martell did would not opine and therefore he did not care stated that to prior were administered they because reliability about their that, decreased opinion, in his the later events to boxing exposure functioning, specifically, neurological as follows: Dr. Martell testified part, In relevant neurotoxins. and those scores about those tests quibble I’m not going can be I think those scores to the older [referring tests].... in 1979 an on that WISC certainly He had legitimate. events significant old. But there is 14-years when he was receiving he was head 14 where history age in his after chronically exposed poisons he was injuries and where were taken off the system the nervous that attacked market____ (“There id. at 64 19-20; at Hearing, ... I’m not going quibble unknowns about those tests

are those are valid or quite possible about those scores. It’s time.”); was at that least close to what his approximations (“I id. at 66 that because score] don’t quibble [the test.”). after that what I see is the here occurred big problem Dr. Martell not view the older tests as It is did apparent relevant, if score could be considered valid. even the 1979

Next, is no basis in the Majority asserts that there that, according to Dr. finding record for the PCRA court’s Crown, test would have been “nulli- Appellee’s earlier scores conditions, wildly testing fied” factors such as “inconsistent testing and out-of-date measures divergent ranges, median effect’).” (known Maj. 99 A.3d at 31. ‘Flynn Op. as the Majority opine is correct that Dr. Crown did not Although reasons, were unreliable for these the earlier tests for not explained being persuaded other reasons Crown tests, the lack of information about specifically, earlier test, that the most recent of the and his belief circumstances Appellee’s the accurate indication of test was most accep- the PCRA court’s functioning. supports The record in this opinion regard. tance of Dr. expert Crown’s 646 factually the is accurate that Dr. Arm-

Although Majority Flynn an that “the effect” should strong expressed opinion adjust older scores downward because of outdated norms, the into adjustments bring but that such did not scores retardation, to range opinion tangential the of mental which focused on the neuro- testimony, primarily doctor’s logical impact transpired following of events that the adminis- N.T., tration the earlier Hearing, of tests. (after effect, “[b]ut,

at as I explaining Flynn stating 184 earlier, ... 18 age said those scores which were before of ”). ... were taken before he had other to brain ... insults Majority diagnosed The asserts that was never incorrect, mental retardation. This as all of having Appel- is lee’s he experts agreed that has mental retardation. 56; 65; 79; id. id. at id. at 53; at at Hearing, 5/11/2011 id. at id. id. at id. at id. at 92; 56; 60; 144; 178; at 5/12/2011 id at id. at id. at id. 194; 196; 212; 101; id. at at 11/15/2011 142; 174; id. id. at If Majority 219. suggesting the lack of a mental diagnosis prior age of retardation 18 retardation, 601-02, a claim of mental Maj. Op. dooms 31-32, A.3d at with all respect, due we have never held that a diagnosis formal of mental retardation arising prior age to Miller. To the is a criteria pursuant we have contrary, evidence of accepted diminished intellectual functioning of onset that fall a age short of formal before diagnosis arising See, Williams, (affirm- e.g., age 18. Pa. 61 A.3d 979 ing finding PCRA court’s of mental in the retardation absence retardation). diagnosis childhood of mental While it clearly would be an easier if Appellee case had been diagnosed with mental retardation prior turning eighteen, the PCRA court properly considered the evidence presented and Appellee’s experts, who diagnosed Appellee with mental retardation. Majority

The next asserts Dr. Martell conceded that label injured,” of “brain which was how the Ashb- him, ourne school classified could have indicated 601-02, had merely learning Maj. disabilities. atOp. 99 A.3d however, at 31-32. Dr. testimony, Martell’s also indicates that the term encompassed children with mental retardation.

647 disability is (“Learning at 75 Atkins N.T., Hearing, 5/12/2011, brain is a kind of retardation Mental damage. of brain a kind but injury from brain result necessarily They don’t damage. Similarly, al- functioning.”). brain abnormal they reflect Dr. Arm- the characterizes Majority though mental impairment that indicating as strong abnormalities, it is clear neurological with other consistent has opinion Appellee in her testimony that her entire from neurological a Armstrong Dr. conducted mental retardation. tests, overall assessment, and made battery of 45 involving has intellectual disabili- that Appellee and concluded findings, to describe terminology is the current she ty, explained which retardation, adopted to prongs accord with the three mental N.T., Miller. Hearing, mental retardation define id. at 135-36. The Common- id. 101; 96; 11/15/2011, cross-examination, she on but opinion her challenged wealth that, a neuropsychologist, in her opinion was consistent and reports, of the evaluations totality at the looking Id. at 149-165. mental retardation. has is, believe, of the PCRA unfairly I critical Majority The with learning between students distinguishing for not court The with mental retardation. Common- and those disabilities to whether regard Dr. Armstrong cross-examined wealth be limitations could that all of possible it was mental retarda- rather than learning disabilities ascribed disabilities tion, learning that Armstrong explained and Dr. that categories, retardation were not discreet and mental also have likely retardation will who has mental someone at Hearing, disabilities. learning (“And, diagnosis a—some other disability is not yes, learning retarda- disability or mental from intellectual separate that’s it.”). There in the PCRA nothing It’s a part tion. understanding in this betrays of lack of opinion court’s (referencing Armstrong’s at regard. See Op. PCRA Ct. mental disability, an intellectual or has opinion retardation).

Next, of Dr. Crown’s Majority expresses skepticism intentionally was no indication that that there opinion depressed I.Q. by Maj. Op. score a lack of effort. at 602- OS, regard 99 A.3d at 32. In this I would also note that Dr. who Spangler, only expert did not believe that Appellant’s retardation, I.Q. range rejected of mental the score by derived Dr. Crown because he believed that Appellee’s motivation to work could have slowly artificially depressed his Thus, score about fifteen even points. Common- effect, wealth’s own about speculation this slow-down Appel- lee’s most recent score that it is indicates still within the (the retardation, range of mental at 72 uncontested actual 15). Moreover, score of plus 57 the fact remains that Dr. nothing Crown testified that the Commonwealth offered al- opinion tered his that there was no evidence of lack of regard motivation with to the 2009 test. I.Q. 5/11/2011,at

Hearing, 177-178. In particular, the Commonwealth for Dr. played Crown the recorded conversation in which Appellee indicated his intent to play the “nut role” and “beat system,” and Dr. Crown was still not persuaded to alter his opinion. Id. 176. While the Majority may Crown, not agree the fact remains that it expert Moreover, was his as a opinion, neuropsychologist. it was bolstered by multiple other experts lay well as witnesses. The PCRA court well within its discretion to consider credibility, accept and to this testimony.

The Majority also takes the PCRA court to task for not that there considering may be a incentive powerful to maling- er and to slant evidence to establish mental retardation. Maj. 601-03, atOp. 99 A.3d at (citing 32-33 Commonwealth v. DeJesus, 70, (2012)). 619 Pa. 58 A.3d 85-86 Although prospect of malingering “[t]he and the incentive to slant evidence to influence a of finding mental retardation are relevant argue considerations to to the Atkins factfinder in an case,” appropriate id. at there is no indication that the factfinder in this case failed to scrutinize such considerations. The thrust of the Commonwealth’s presentation of evidence with regard to Appellee’s I.Q. score was that his prior I.Q. scores were more accurate indicators of his intelligence than the most recent test administered Dr. Crown precisely Every poorly. Atkins motivation to do of Appellee’s because was not testified, however, stated that who expert about speculate only expert malingering, such a motivation slowly expect work did not motivation to see, e.g. N.T. Atkins beyond points, his score depress (Dr. that a lack testifying at 139 Spangler Hearing, average an of 15 I.Q. an score motivation will decrease within the context the effect harmless rendering thus points), relied on all of the The court the considered issue. PCRA Commonwealth’s, in this respect. including the experts, at 8. Op. Ct. PCRA acceptance court’s Majority disregard’s

The also his the decrease from that experts’ opinions of Appellee’s (85)) (80) (the the 1979 score 1972 score I.Q. earlier scores neurological score of 57 was attributed to the 2009 602-03, Maj. Op. after 1979. happened impairments court, Dr. Martell to the PCRA According A.3d at 32-33. teenager as a likely suffered dementia testified to neurotoxins from exposure and from boxing as a result of chemicals in his lawn kennel and his contact with family’s then observed at 8. The court Op. care business. PCRA Ct. of ten until he left age in the record that from the evidence times a year, used creosote four to five Appellee home at skin, and was absorbing through the and it inhaling vapors Sevin, to treat family which the used pesticide to the exposed Appellee ticks. Id. at 8-9. When dogs the for fleas and business, malathion, to exposed started his lawn care he was protective treat without a or respirator which he used to lawns products The court that in 1990 these clothing. Id. at 9. noted As further to cause mental retardation. Id. were found neurological impairments evidence that suffered from neurochemicals, the boxing exposure as a result of and his Armstrong, Dr. who court relied on the of concluded, neurological of 45 based on her administration of tests, unusually profile “an severe neuro- that had N.T., 11; at At- Op. PCRA Ct. psychological impairments.” 11/15/2011, at 96. Hearing, kins did not demonstrate a

The asserts that the defense Majority the chemicals to which causal connection between malathion, creosote, Sevin, exposed, specifically, However, asserted drop Armstrong his subsequent cholinesterase, also in her that Sevin “inhibits and is report memory impairment,” with and that “Malathion binds linked cholinesterase, in hu- memory impairment and causes (R.R.) 3, 18R. Dr. Martell Reproduced mans.” Record Vol. are which kill organophosphates testified that these chemicals N.T., system Hearing, the nervous of humans. (“One 5/12/2011, 22; id. at of the with these things they They neurotoxins is are cumulative. are stored in the fat in our bodies. The fat kind of concentrates and magnifies it, you them. the more are the more it builds exposed So up your system your and then the more corrosive it is on (Dr. id. system.”); brain and nervous noting Martell that creosote posed was banned 1990 because of the risk it to the nervous system). Dr. Armstrong explained,

As the chemicals with which past had worked in the have been discovered to injury, specifically memory.6 cause brain impacting She continued that these chemicals also affect the central nervous examination, system and neurological functioning.7 On cross Armstrong 6. Dr. testified: working He was with a lot toxic chemicals that we know cause injury, specifically memory, beyond probably memory, brain but they’re depending results from animal we on studies—where studies— memory. being know how to test Studies aren’t done on humans for case, any obvious reasons. And so—in we that know the chemicals— insecticides, herbicides, creosote, that he worked with even all laying memory, can cause destruction of the down of destruction of memory systems. Hearing, at 103. Specifically,

7. she testified as follows: just carbaryl, ... not it’s creosote. It's—it's the which is known insecticide, loss; malathion, memory

to cause which anis system] affects—that's known to affect the CNS nervous [central variety neurological symptoms including it causes a in humans used, memory Roundup ... And even the herbicides that he lawns, spray signal- he used to around the that causes abnormal cell ing. fatty they These insecticides tend to accumulate in tissues. So they're quickly. They not breathed out or metabolized remain don’t— in the body drugs for awhile. So are these that we know that would neurological functioning. affect is a neuro- mental retardation that Armstrong explained Dr. re- result from problems neurological and problem, logical ner- that effect the to chemicals exposure excessive peated, 11/15/2011, at 213-216. N.T., Hearing, Atkins system. vous lice, Dr. to treat head malathion is used that Acknowledging controversial, many disa- as that this Armstrong testified it one time using and that purpose, for that with its use greed a causing its use repeated than degree of a different neurological neurologist, body. in the Id. As buildup expertise. within the witness’s chemicals was of these impact her, and Moreover, to discredit attempted the Commonwealth exposure, that opinion repeated waiver from her she did not im- neurological have had a would by Appellee, experienced had neurologi- that fact notably verified pact. She of him. her and evaluation through testing impairments cal view, objective status was consistent Thus, in her his expert error I see no history. on his expectation premised with her with disagree her and I accepting opinion, court the PCRA not the PCRA support the record does Majority regard. findings court’s and conclusions no evidence vein, Majority asserts there was In a similar in the his injured during participation was ever factual find- court’s undermining boxing program, 602-03, A.3d at 32-33. Maj. matter. Op. on this ing However, neurologi- indicated that Armstrong’s report “boxing consistent with defects she encountered were cal Ill at 18R. blows.” R.R. Vol. head sparring frequent N.T., Moreover, from Appellee. she obtained this information (“He 11/15/2011, that he had— at 104 told me Hearing, to the head many how blows try quantify I asked him to choose what he and he could different estimates gave at least a hundred blows fit. And he said thought probably head.”). in addition to one mother testified that her blow, injuries that caused there were other significant (“... just many came home with too Id. at 15 he concern. to bed at six go times when he would injuries. There were him waking up, go keep and I’d have to night o’clock Hearing, at 105-06. 652 (“There id. at 71

just to make sure that he all right.”); or, plenty were of other times where his ear would be swollen nature.”). know, you eye, things bruised of that Whether the that rele- Majority believes this evidence was credible is not vant. The fact finder Ms. Hackett’s and accepted in Armstrong’s opinion regard, this and there is record support for it. Because the PCRA court’s of sub- finding average intellectual the functioning amply supported by record, is bound these factual findings. Court to whether

Moving “significant demonstrated Williams, limitations,” adaptive 61 A.3d at which is second factor from our definition of mental retardation in Miller, explained “[although I.Q. we have an individual’s primary score is the measurement for limited intellectual functioning, because the interaction between limited intellectu- al functioning and deficiencies in skills is adaptive necessary retardation, score, establish mental sufficiently a high I.Q. itself, will not bar a court from an finding individual Williams, 983; Miller, mentally retarded.” 61 A.3d at 888 A.2d at 630-31. Similarly, a low score will not “in itself Williams, categorize person mentally retarded.” 61 A.3d 983; Miller, 888 A.2d at In 630-31.8 addressing adaptive 8. We have defined conceptual, behavior as "the collection of social, practical by people and skills that have been learned in order to lives, everyday adaptive function in their and limitations on behavior adjusting are ordinary daily reflected difficulties demands made in Williams, 983-84; Miller, life.” According 61 A.3d at A.2d 888 at 630. AAIDD, significant adaptive to the functioning limitations in means "performance that is at least two standard deviations below the mean (a) following types of either adaptive one of the three behavior: social, (b) conceptual, practical, or or an overall score on a standard- Williams, conceptual, ized practical measure of social and skills.” 983-84; Miller, addition, A.3d at 888 A.2d at 630. In requires significant The DSM-IV limitations at least two of the communication, self-care, following living, skill areas: home so- skills, resources, self-direction, cial/interpersonal community use of skills, work, leisure, health, safety. functional academic For assessing adaptive ability, suitability the DSM-IV also considers "the person’s background, of the cation, instrument to socioeconomic edu- motivation, handicaps, cooperation.... associated addition, normally maladaptive behaviors that would be considered (e.g., dependency, passivity) may good adaptation be evidence of criteria, that the focus is accepted we have adaptive behavior Williams, weaknesses, strengths. not his on an individual’s A.3d at 992. five for experts heard from

The PCRA court —four witnesses, over lay well as for the Commonwealth—as and one pre- It considered the evidence days. of several course sented, credibility made determi- expert opinions, weighed found, totality of the nations, based on the ultimately limitations evidence, adaptive demonstrated the retardation. test mental prove the Miller required support a wealth of evidence to at 15. There is Op. PCRA Ct. finding. this testified that in his under opinion, Dr. Martell

Specifically, in five of the impaired was guidelines, Appellee the DSM-IV academics; interper- functional social and categories: eleven skills; self-direction; self-care; All of the safety. and sonal N.T., regard. with Dr. Martell this experts agreed defense (Dr. 5/11/2011, 5/12/2011, Martell); at 38 id. Hearing, Atkins (Dr. (Dr. Crown); 11/15/2011, at 135-36 Arm- at 65-66 id. O’Brien). (Dr. 5/12/2011, at 197-99 The PCRA strong); id. thus was within its discre- court this and accepted in these five impaired conclude that tion to categories. adaptive functioning academics, Dr. Martell reviewed to functional respect

With im- records and found clear evidence of Appellee’s academic instance, For had pairment category. N.T., Hearing, grade the first three times. repeat (“I’ve a I think this is the people. at 40 seen lot of someone who had to repeated [sic] first time I’ve ever seen a very early three times. That to me grade speaks first that one would need to do profound impairment onset and that.”). school, result, he was in the Ashbourne placed As a injured” intensive “required where he was labeled “brain strug- as he continued to supervision one on one support grade behind his level gle academically, consistently [aca- (e.g., particular individual's life in some institutional the context of a settings).” Williams, (internal omitted). at 983-84 citations 61 A.3d understanding ... abstract con- demically], difficulty and had 11-12; N.T., Op. Hearing, PCRA Ct. cepts.” 5/12/2011,41 took this Achievement (“[Appellee] Metropolitan and that his math and age placed Test nine-and-a-half level, at the which is reading grade significantly scores second where one be at that that a age.”); (noting below should id. from when was ten stated that he progress report difficulty “seems to still have with abstract such as the aspects months, relationship things time and the between such cities.”). continents, countries, states and also At- See 5/12/2011,at Hearing, (reading kins from a 1980 individual- plan ized education for “The multi- provided: team disciplinary [Appellee] injured finds to be brain unable to benefit ... special program from education at a time.”); school education class at this at 41- public special id. (“So age after 10 when he would be in fifth he’s grade, at a functioning grade finally by second level. And then ... age only 16 he was at a level in functioning grade sixth math.”). reading and fourth or fifth grade level addition, Appellee’s former teacher from the Ashbourne school, Pezola, Judy testified that she him taught year for a 1974-75, from and that the school was “kids were for who disabled; learning labeled who were in- kids labeled brain jured; N.T., kids who were labeled ...” emotionally disturbed 5/11/2011, Atkins Hearing, at 9. Ms. Pezola recalled that when old, was ten Appellee years he read at a second level grade and could not independently complete age appropriate aca- demic work. Id. at 12. skills,

With regard to social and interpersonal PCRA court noted Dr. testimony Martell’s that school Appellee’s area, records indicated significant deficits this skill refer- to an ring progress Ashbourne school to his report referring 5/12/2011, to susceptibility manipulation, N.T. Hearing, Atkins at 47 (“[Appellee] allows himself to be his manipulated by classmates.”), and another progress report indicating that he did not interact with appropriately peers his and did not (“Past tolerate frustration adequately. present Id. and teach- er observation indicate that not [Appellee] ap- does interact not tolerate frustra- his Does any peers. with propriately at 13. Op. PCRA Ct. adequately.”); tion social about testimony Appellee’s Dr. Martell’s accepting that it was skills, noted the PCRA court interpersonal as witnesses such lay it heard from testimony with consistent child aunt, that as a who testified mother and friends, and friends, making had trouble had few younger. were much children who to socialize with preferred 9-11; 5/13/2011,at 13; N.T., Hearing, Atkins atOp. PCRA Ct. id. at 82. self-direction, the court PCRA to the skill area

Turning struc- required that testimony Ms. Pezola’s accepted task, it and that complete to supervision ture and instructions to him. PCRA to necessary provide step-by-step 5/11/2011, The 13; N.T., at 30. Hearing, Atkins atOp. Ct. testi- with other testimony found this consistent court PCRA instructions of specific able to follow mony own, but was unable to on his scope limited and duration activities, such as learn- relatively simple on follow directions 14; N.T., Hearing, Op. at jump rope. PCRA Ct. ing 5/13/2011,at 10. self-care, the to the skill area of

Similarly, respect opinion that accepted Appellee’s expert’s court PCRA area. Ct. history impairments demonstrated accepted 15. the PCRA court Op. Specifically, eleven; until ten or age wet the bed Appellee frequently teens; into his had diffi- (self-wetting) from enuresis suffered consistently; utensils culty using his own shoes tying him from getting prevent while dressed supervision needed his shoes on the putting backwards or his clothes wearing at 48-49. Hearing, wrong feet. Dr. Martell area which safety, the fifth skill

Finally, as accepted court the PCRA impaired, identified showed, in the instances which evidence of several for his own dangerous disregard a experts, of opinions noted one instance the PCRA court Specifically, safety. a tree and himself when he climbed injured where Appellee remove with a chainsaw attempted to branches while intoxicat- 15; N.T., 5/12/2011, ed. PCRA at Atkins at Op. Hearing, Ct. 50; N.T., Hearing, Atkins at 210. on Additionally, 11/15/2011 July, one Fourth lit of held onto a firecracker until it and, time, at exploded, family another alarmed his members into a waterfall without jumping any regard safety. for his 16-17; N.T., 5/12/2011, PCRA Ct. at Op. Hearing, 135-36. credible, this it

Accepting testimony, finding the fact finder concluded that demonstrated limita- adaptive as required by tions the Miller definition of mental retarda- conclusion, reaching tion. this the PCRA court considered the evidence from life that indicated lack of adaptive functioning and the expert’s testimony providing evidence, concluded, into this insight ultimately as the testified, that experts adaptive some limited functioning Appellee’s employment did not undermine the lack specific adaptive functioning the five skill areas identified Martell.

To the Majority extent the is critical of Dr. Martell’s opinion academics, about Appellee’s functional alleging it was formed records, without a complete review of all of school Maj. 603-04, Op. see 99 A.3d at fact out brought cross-examination, on and Dr. Martell stated that the records he had not reviewed did not alter opinion.

Hearing, Similarly, at 113. the Majority notes that although some members of Appellee’s family claimed he could (his himself, not tie his shoes and that he wet Ms. Pezola school) former teacher at the Ashbourne could not recall such problems. This type conflicting testimony is proverbial cases, these and is for the fact finder to evaluate. After consideration, careful accepted PCRA court the family testimony. members’ The fact that there is evidence to the contrary in the record does not invalidate the court’s finding.

Further, Majority faults the PCRA court for failing recognize injured that when Appellee himself after he climbed branches, a tree and attempted remove tree he was intoxi- however, cated. the contrary, To the PCRA court explicitly nevertheless at 15. The court Op. this. PCRA Ct. recognized this incident as one characterization of Dr. Martell’s accepted area of personal deficits in the skill demonstrating of three safety. have that the court should

Next, Majority asserts PCRA the that, life, had no Appellee in his adult considered evidence a running him from busi- that prevented limitations adaptive However, 603-05, the at 33-34. 99 A.3d Maj. Op. ness. in work Appellee’s evidence about court heard PCRA did testimony that this evidence expert also heard regard, and Indeed, it is notewor- opinions. ultimate experts’ not alter the demon- Appellee to find that that Dr. Martell declined thy work, skill area of functioning adaptive strated a lack of DSM-IV. See in the identified aspects which is one the eleven Williams, 983-84; n.3, supra. The PCRA court A.3d at businesses, complet- two Appellee operated that acknowledged ability level of intellectual and that low ing required tasks Op. learned PCRA Ct. repetition, which could be Id.; N.T., Atkins family. of friends and with the assistance 11/15/2011, the PCRA Court Ultimately, at 25. Hearing, that none of Appellee’s experts accepted inconsistent with a or were responsibilities actions this conclusion was Again, mental retardation. diagnosis of well within its sound discretion. that

Further, in the record Majority highlights evidence could communicate manipulative that was shows 603-04, This 99 A.3d at 33-34. Maj. Op. at effectively. and the evidence, however, experts to the presented because court, and the court found that PCRA categories, the eleven he limitations five of adaptive showed limitations as defined proving adaptive burden of had met his in Miller. by this adopted Court DSM-IV a tele- evidence about The court further considered incarcerated, while conversation recorded phone trading trading stock and difficult explained in which he mother, the conclusions of credible finding to his concepts actually was no evidence he that there experts and, further, if that even saying, what he was understood he was it did not concepts explaining, understood N.T., mentally alter their that he was retarded. opinion (Dr. 5/11/2011, that Hearing, stating Atkins at 129-131 Crown can invest in the market and mentally people retarded stock losses); N.T., gains Hearing, calculate their or (Dr. 11/15/2011, Armstrong opining hearing Appel- at 144 any lee discuss stock did not alter her trading opinion (Dr. respect); Hearing, at 165 Crown testifying respect learning trading, about stock Appellee repeating something is educable and could have been (Dr. heard); 5/12/2011, he N.T. Hearing, Atkins at 188 that “... I testifying O’Brien think the comments about the that, stock part sales and stuff like I think it’s all of that sort try of bravado to to show how normal he is and how active he is.”). is, how functional he

The PCRA court was of that is capable finding Appellee mentally retarded the despite presented by evidence the Com- by monwealth and relied on the as Majority demonstrating Maj. 603-08, adaptive capabilities. Op. at 99 A.3d at 33-35. Williams, See at (holding A.3d that PCRA court “[t]he was of capable finding appellee mentally retarded although he is the main provider family for his and able to hold basic jobs. expressed by As appellee’s experts, several of the focus should be on an individual’s weaknesses —not his or her strengths mentally people retarded can function in society —as are able to jobs, and obtain and hold well low-skilled as family.”). have a We have explained that the DSM-IV AAMR’s definitions of mental accept retardation an individu- al’s classification as mentally may retarded “even he though have relatively strong skills in distinct Id. Ac- categories.” cordingly, Majority’s suggestion that court PCRA in finding Appellee erred has significant adaptive defi- ciencies because he effectively, could communicate run a lawn care business with the assistance of family, plan or the murder convicted, for which he was is erroneous.

The final criteria for mental retardation is onset Miller, age condition before 18. 888 A.2d at 630. As support criteria, for finding PCRA court relied on the individ- was that stated from 1980 plan ualized education school from public to benefit and unable injured” “brain 40; 5/12/2011, education, N.T., Hearing, special stating school the Ashbourne from report progress a 1974 and could concepts abstract difficulty grasping had at 17. Op. at 42. PCRA Ct. correctly, id. letters not form when on evidence that relied Additionally, the court level, and grade at a second old, reading he was ten years level grade at a sixth sixteen, functioning he when he was Id.; math. level in grade or fifth and a fourth reading, court 42. The PCRA Hearing, testimony from was corroborated that this evidence noted court’s find- members. The family Pezola and Ms. sup- adequately Miller is criterion from to this last ing as record. in the ported it indicates opinion, the PCRA court’s the last page

On briefs, and the submitted all of the that it reviewed met, of the aby preponderance found that de- of mental retardation evidence, definition the threshold 19. The atOp. in Miller. PCRA Ct. this Court fined witnesses testimony by [Appellee’s] court “found to be credi- development these claims of regarding reliable, accordingly and now holds ble, persuasive offered be Id. Given granted.” relief should witnesses, five four experts, lay opinions numerous retardation, vari- and the has mental testified whom court’s determination reports, ous records mental that he has establishing his burden of met this the record. I believe Court is supported retardation affirm, prefer- individualized notwithstanding constrained Majori- therefore dissent from contrary, to the ences the evidence. re-weighing of ty’s improper dissenting opinion. join and TODD Justices SAYLOR notes the PCRA court found ability to work and run a business were not inconsistent -with a diagnosis disability of intellectual as his him family gave in help extensive the business and running Appellee’s tasks did not involve high ability and could be learned through repetition. points to our decision Williams, in which this upheld Court PCRA court’s find- ing that “mentally Williams was retarded” even he though jobs basic provided held for his family as the DSM-IY and AAMR provide standards that individuals with “mental retardation” can society, jobs, function in hold low-skilled Williams, have strong skills distinct categories. 619 Pa. at vein, 61 A.3d at 992-93. In the same while the PCRA court noted that Appellee was able to engage financial transactions and understand some difficult stock con- trading cepts, the PCRA court accepted Armstrong’s assertion that Appellee’s ability explain an advanced concept did not negate a of intellectual finding disability. 2. Discussion

Notes

the notes in the arguing Apparently 1972 and did not claim experts that defense were inaccurate, they stated merely were but 1979 scores information. supporting of the absence of unreliable because 600-01, the Majority A.3d at 31. While Maj. at Op. not claim that the 1972 and that the did experts correct inaccurate, in their they, is that point the salient tests were two scores to by these persuaded were not expert opinions, functioning. intellectual about opinions alter their reasoning explained and their Drs. Crown O’Brien of information to substantiate observing the lack respect by scores, and Arm- Drs. Martell reliability reported of the the administered that these earlier tests were strong hypothesized Appellee’s neurological events decreased subsequent before I.Q. that the most recent and Dr. functioning, opined O’Brien of Appellee’s accurate representation score was the most test the Commonwealth functioning. intellectual While present evidence, Appel- the court credited contrary presented that the their assertions opinions accepted lee’s and experts’ of Appellee’s were not the best indicator 1972 and 1979 tests functioning. O’Brien, finds Majority of Dr. the testimony Examining reliance on the 2009 test contradiction in his apparent an Crown, absence of purported Dr. even in the by administered 600-01, Maj. raw that test. 99 A.3d at attending Op. data however, O’Brien, 31. Dr. of the other accepted Crown, relia- experts, including regarding validity Dr. and N.T., the 2009 bility testing scoring. Hearing, of (“... 5/12/2011, reliability at 185 of that testing [referring intact.”); (stating to the 2009 was found to be id. at 186 test] routinely psychological testing that he relies on that has been “subjected other to the psychologists type done same that Dr. reliability analysis Martell undertook with the Mr. Hackett. testing performed upon my opinion there’s reliable.”). nothing testing to indicate that the is not Unlike I see no Majority, finding contradiction this witness older tests for which there no unpersuasive supporting data, and the most current which finding persuasive test administration, several other had examined for experts scor- ing, reliability. Further, Dr. credited the O’Brien score derived Dr. time, Crown because it was the recent in most and therefore most relevant. Hearing, 180. explained O’Brien also that he relied on Dr. score Crown’s because the test that was administered is “the test primary the purposes assessing utilized for intelligence terms of

Case Details

Case Name: Commonwealth, Aplt v. Hackett, R.

Court Name: Supreme Court of Pennsylvania

Date Published: Aug 18, 2014

Citation: 99 A.3d 11

Docket Number: 675 CAP

Court Abbreviation: Pa.