Lead Opinion
OPINION
These twin capital cross-appeals involve co-defendants Henry Daniels and Kevin Pelzer (“Daniels” and “Pelzer,” or
The Commonwealth appeals from the grant of penalty phase relief in each case, while appellees, in separate cross-appeals, seek review of additional issues upon which the PCRA court denied relief. For the reasons set forth below, we affirm the order of the PCRA court as it relates to Kevin Pelzer, but reverse the order as it relates to Henry Daniels. Thus, Pelzer is denied guilt phase relief, but the award of a new penalty phase hearing to him is affirmed, and Daniels’s PCRA petition is dismissed in its entirety.
The facts and procedural history are not recounted at length given that a full history of the case was set forth in our initial review of these collateral proceedings in Daniels and Pelzer, and in the direct appeal opinions reported at Commonwealth v. Daniels, 531 Pa. 210, 612 A.2d 395 (1992) (Opinion in Support of Affirmance) and Commonwealth v. Pelzer, 531 Pa. 235, 612 A.2d 407 (1992) (Opinion in Support of Affirmance).
As relevant here, appellees were tried jointly before a jury. Daniels was represented at trial by Charles Houston, Esquire, a South Carolina lawyer hired by Daniels’s family and granted pro hoc vice status, with John Drost, Esquire, a Pennsylvania attorney and Daniels’s original trial counsel, appointed as standby counsel. Pelzer was represented by Donald Padova, Esquire. Appellees obtained new counsel for purposes of
The guilt phase evidence established that appellees participated in a plan to kidnap and hold for ransom sixteen-year-old Alexander Porter. Appellees kidnapped the victim, bound and gagged him, and placed him in the trunk of his car. Ultimately, they determined to kill the victim. In all, the victim was held in the trunk for twenty-four hours. According to appellees’ police statements and Daniels’s trial testimony, appellees were unable to determine whether the youth was dead when they went to dispose of his body. Pelzer shot Porter four times in the back of the neck to remove all doubt. The jury found both appellees guilty of first-degree murder and other offenses.
Following a capital penalty hearing, the jury found the same four aggravating circumstances and two mitigating circumstances with regard to each appellee and further found that the aggravating circumstances outweighed the mitigating circumstances; accordingly, the jury fixed the murder penalty at death for each appellee. See 42 Pa.C.S. § 9711(c)(l)(iv). The trial court formally imposed the sentences of death on November 14,1989. On April 23,1990, the trial court sentenced each appellee to an aggregate, consecutive term of twenty-five to fifty years in prison for his remaining crimes. The Supreme Court affirmed the sentences of death on direct appeal. Daniels, 612 A.2d at 397-98; Pelzer, 612 A.2d at 410. Daniels filed for reconsideration, which was granted. Subsequently, the Court again affirmed the judgment of sentence, this time by a 4-3 majority vote. Commonwealth v. Daniels, 537 Pa. 464, 644 A.2d 1175 (1994) (per curiam).
Appellees filed timely pro se PCRA petitions and new counsel entered their appearances and filed amended petitions, which were followed by many supplemental petitions. The PCRA petitions were assigned to the Honorable James A. Lineberger, because the trial judge was no longer sitting on the bench, and Judge Lineberger considered the cases together.
After holding hearings on these claims in December of 2001, May of 2002, and January of 2003, the PCRA court granted new trials based on the guilt phase claims that trial counsel were ineffective for (1) failing to object to the trial court’s instruction on accomplice liability, and (2) failing to present evidence disputing the cause of death. The PCRA court also addressed the Batson claim, but denied relief; the court did not provide a reasoned analysis of the myriad other claims.
The parties filed cross-appeals after the PCRA court ruled that its order was final and appealable. See Daniels and Pelzer, 963 A.2d at 416. On appeal, this Court reviewed the three claims addressed by the PCRA court, ultimately reversing the grant of relief on the two guilt phase ineffectiveness claims, while agreeing with the dismissal of the Batson claim. We therefore reversed the PCRA court’s grant of new trials. We were unable to reach the other claims raised on appellees’ cross-appeals, however, given the PCRA court’s failure to discuss the claims, a lapse that precluded meaningful appellate review. We thus remanded for a merits opinion. Since the
Finally, appellees raise numerous other claims which, though dismissed by the PCRA court, were not addressed by the PCRA court on the merits either in its opinion or elsewhere on the record. For example, in its opinion, the PCRA court acknowledged that appellees raised other claims of error in connection with the penalty phase of the trial, but stated that those claims were rendered moot because of its decision to grant a new trial, and thus dismissed them. Given the prospect of appellate review, and to avoid piecemeal review, PCRA courts in capital cases should be thorough and should address all issues. In light of our disagreement with the PCRA court’s existing grant of relief, the proper course is to remand for the PCRA court to address these claims.
In addition, the PCRA court failed to explain the basis for its determination that appellees’ many other claims affecting the guilt phase were meritless. Because of the PCRA court’s failure, we have no rationale supporting the denial of appellees’ remaining claims and cannot conduct meaningful appellate review. Under such circumstances, we will remand the matter to the PCRA court to -write an opinion addressing all of the PCRA petitioner’s claims. ... Accordingly, we remand this matter to the PCRA court to furnish a written opinion on the remaining claims raised by appellees in their petitions for post-conviction relief, including those claims that it previously dismissed without a hearing. As to any claims requiring resolution of disputed material facts, the court should include specific factual findings and express credibility judgments.
Id. at 435 (citations omitted). Appellees’ Applications for Reargument were denied.
On remand, the case was assigned to the Honorable Carolyn Engel Temin because Judge Lineberger was no longer serving. Judge Temin held several hearings between December 10, 2010 and August 26, 2011, to determine which issues remained to be addressed. The parties disputed whether
I. PRELIMINARY PROCEDURAL ISSUE
The parties first dispute the propriety of the successor PCRA court’s decision to consider claims on remand anew. The Commonwealth argues that Judge Temin had no authority to vacate the death sentences because in doing so she overruled Judge Lineberger’s prior dismissal. That action, the Commonwealth alleges, violated Pa.R.A.P. 2591, which provides that the lower court must proceed in accordance with the judgment or order of the appellate court on remand, as well as the coordinate jurisdiction rule, which provides that judges sitting on the same court in the same case should not overrule each other’s decisions. The Commonwealth contends that this Court’s remand order was narrow, merely directing the PCRA court to produce a written opinion on the remaining issues it had dismissed, and Judge Temin exceeded that mandate when she granted penalty phase relief. Respecting coordinate jurisdiction, the Commonwealth posits that Judge Lineberger specifically rejected appellees’ mitigation-based ineffectiveness claim on the merits during a March 25, 2003 PCRA hearing and then memorialized the decision in an order dated the same day. According to the Commonwealth, the
The Commonwealth further argues that Judge Lineberger’s June 2004 written opinion, which stated that the claims he did not address in the opinion were “moot,” is not part of the record on appeal, and therefore Judge Temin should not have considered its contents in determining whether she could address the merits “ab initio.” The Commonwealth concludes that “because the PCRA court lacked the authority to go beyond this Court’s narrow remand order and overrule the prior binding decision of a judge of coordinate jurisdiction, the court’s ultra vires award of a new penalty phase hearing should be reversed.” Principal Brief of Commonwealth, at 26.
Pelzer responds that in the June 2004 opinion, Judge Lineberger stated that he deemed appellees’ penalty phase issues “moot” because of his determination that a new trial was warranted. See PCRA court Slip Op., 6/29/2004, at 12. Pelzer adds that this Court recognized that the claims were dismissed as moot in our remand directive (quoted above). According to Pelzer, the Court remanded the case specifically because certain claims remained unaddressed by the PCRA court. It follows, Pelzer says, that the coordinate jurisdiction rule was not violated by Judge Temin because Judge Lineberger did not decide the merits of the remaining claims. Pelzer further contends that the cases cited by the Commonwealth to support its argument that Judge Lineberger’s opinion is not part of the record are inapplicable because they stand for the proposition that facts stated in an opinion cannot overcome the lack of record evidence to support the existence of those facts, a proposition not at issue here. Daniels’s arguments largely echo those of Pelzer.
The circumstances here are not optimal, even aside from the unavailability of the original PCRA judge to conduct the remand proceeding. This Court has too often seen capital PCRA matters where the court below, faced with a multitude of claims and prolix amendments, addresses a claim or two, grants relief, and then fails to discharge its duty to address at all, or to address fully, the remaining claims, a circumstance
In this case, the original PCRA judge gave conflicting signals, as he actually dismissed appellees’ other claims, signaling a merits disposition that allowed for appealable orders, and further suggested, as relevant here, that he was not necessarily convinced by the ineffectiveness respecting mitigation claim, but then suggested in his opinion that the dismissal was on mootness grounds. The suggestion of mootness was plainly misguided in light of this Court’s repeated insistence on a comprehensive approach to PCRA petitions. A capital PCRA petitioner’s claims should not be deemed “moot” by the trial court based upon a determination that a claim or two possesses merit; any finding of mootness would depend upon this Court’s determination of any ensuing Commonwealth’s appeal. As an institutional matter, and as a matter of judicial economy, mootness is more properly for this Court to determine in capital PCRA proceedings. If a single collateral issue is both contested (as here) and deemed of such importance as to warrant immediate interlocutory review in the PCRA court context, the PCRA court can avail itself of the issue certification process, Pa.R.A.P. 312 (interlocutory appeals by permission). But, a PCRA trial court should not invoke “mootness” to avoid the task of deciding the entire case before it so as to make for a ready, comprehensive, and timely single appeal. This imperative is not just a matter of sparing the parties and this Court the burden of multiple, “ping-
The parties’ dispute over the proper interpretation of Judge Lineberger’s handling of the remaining claims is ultimately of little moment to the appellate task of this Court. Even if Judge Lineberger had made it perfectly clear that he was rendering a merits conclusion as to every claim, that fact would hardly advance the purpose of our remand. The impediment to meaningful appellate review was the absence of any reasoned expression why any particular claim was being rejected. Judge Lineberger denied most of appellees’ claims without an evidentiary hearing. See N.T., 2/2/2000, at 80-89. He then held multiple hearings related to specific claims, including both the guilt phase claims that were subject of the prior collateral appeal and the penalty phase claim upon which Judge Temin ultimately granted relief. When Judge Lineberger granted relief on the two guilt phase claims, the prosecutor stated that he “would assume all the other claims are denied.” Judge Lineberger replied, “No. What I’m saying to you, is this. I didn’t go down the list of claims on there.... Some of those issues that were raised did not trouble me at all____” N.T., 1/29/03, at 11. But, the court did not identify these claims or articulate the reasons he believed they were not troubling. During a March 5, 2003 hearing, Judge Lineberger appeared reluctant to rule on the merits of the penalty phase issues because he had not fully considered them. See 3/5/03, at 5, 12-15 (“See, I’m in a position at this moment where I really did not give the issues raised concerning the penalty phase probably the consideration they might have legally deserved.... ”). Ultimately, on March 25, 2003, the court appeared to deny relief on the mitigating evidence claims on the merits, but again without any kind of reasoned expression, and in an equivocal manner tied to a hope that the penalty phase issues would be rendered “academic” by his granting of new trials: “[S]o I guess what I’m saying is this, gentlemen, that in this Court’s opinion the conduct of the lawyers were not an F. Lee Bailey type presentation on the
What is not equivocal is that the initial PCRA judge memorialized no findings of facts or specific conclusions of law as to the various claims he dismissed, and he offered no reasoned explanation as to any of the claims; an offhand reference to Attorney F. Lee Bailey is not helpful to meaningful appellate review. We are left with nothing of substance from Judge Lineberger to review, irrespective of whether the judge intended to engage the merits. In these circumstances, Judge Temin, tasked with providing this Court with a reasoned analysis of the myriad remaining claims, can hardly be faulted for proceeding to analyze the claims de novo: there was nothing material for Judge Temin to defer to, and she was no better off than this Court, when the appeal was here before, to try to fathom the grounds for Judge Lineberger’s decisions (or nondecisions). Our remand order did not contemplate a circumstance where the judge who had failed to fully discharge his duty in the first instance would be unavailable to complete the task upon remand. Hence, at least in these admittedly unique circumstances, we see no error in the judge to whom the case was reassigned examining the merits anew, so as to provide this Court with the explication necessary for us to discharge our appellate task. Thus, we will proceed to the merits.
II. REVIEW STANDARDS
In reviewing the rulings of a PCRA court, we examine whether the PCRA court’s determination “is supported by the record and free of legal error.” Commonwealth v. Rainey, 593 Pa. 67, 928 A.2d 215, 223 (2007). In order to be eligible for PCRA relief, a petitioner must establish by a preponderance of the evidence that the conviction or sentence resulted from one or more of the enumerated circumstances found in
The majority of appellees’ claims sound in ineffective assistance of counsel under the Sixth Amendment. The U.S. Supreme Court has stressed that there is a strong presumption that counsel was effective, and the burden of overcoming the presumption rests with the defendant. See Burt v. Titlow, — U.S. —, 134 S.Ct. 10, 17, 187 L.Ed.2d 348 (2013); Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To obtain relief, the defendant must demonstrate that counsel’s performance was constitutionally deficient and that the deficient performance prejudiced him. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. In Pennsylvania, we have applied the Strickland test by looking to three elements, two concerning performance, and one concerning prejudice. Respecting counsel’s performance, the petitioner must establish that his underlying claim is of arguable merit and that no reasonable trial strategy existed for counsel’s action or inaction. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987). The reasonableness of counsel’s conduct is objectively measured, Cullen v. Pinholster, 563 U.S. 170, 191, 195, 131 S.Ct. 1388, 1404, 1407, 179 L.Ed.2d 557 (2011) (citing Harrington v. Richter, 562 U.S. 86, 110-11, 131 S.Ct. 770, 791, 178 L.Ed.2d 624 (2011)). Respecting prejudice, we employ the Strickland actual prejudice test, which requires a showing of a reasonable probability that the outcome of the proceeding would have been different but for counsel’s constitutionally deficient performance. See, e.g., Strickland, 466 U.S. at 694, 104 S.Ct. 2052; Commonwealth v. Sepulveda, 618 Pa. 262, 55 A.3d 1108 (2012). “[A] reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the proceeding.” Common
Both Daniels and Pelzer were represented by new lawyers on direct appeal, and those direct appeals were litigated before this Court’s decision in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), reargument denied, 573 Pa. 141, 821 A.2d 1246 (2003). Thus, in theory, direct appeal counsel in each case could have raised claims of trial counsel ineffectiveness on direct appeal, and the failure to raise a claim of trial counsel ineffectiveness on direct appeal could implicate PCRA waiver.
Recognizing the dynamism that has continued to be evident in this area of the law since Grant and McGill,
Thus, in this case, for appellees to secure relief on any particular claim, they must establish Strickland’s elements as to both trial and appellate counsel. To the extent that this Opinion discusses appellees’ underlying claims of alleged trial court error or trial counsel ineffectiveness, we do so purely for purposes of assessing appellees’ derivative and cognizable claims of appellate counsel ineffectiveness, and in particular, to assess whether a Walker-style remand is required.
III. GUILT PHASE ISSUES
We first address the guilt phase claims that are the subject of appellees’ cross-appeals, since they offer the prospect of the greatest relief.
Appellees allege that the Commonwealth failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), identifying three items of exculpatory evidence they say were withheld from them. First, they cite a “body receiving record” prepared by the medical examiner, which indicated that Alexander Porter had died “eight or nine hours before the gunshots were fired.” Brief of Daniels at 30 (original emphasis). Appellees aver that this document supports a theory that Porter died in the trunk of the car while they were sleeping. Second, appellees cite witnesses’ statements that they heard gunshots in the park area where the victim’s body was found between 11 p.m. and 1 a.m. on the night of the murder. Third, appellees cite a forensic report stating that no bloodstains were found in their vehicle; appellees say this report was exculpatory because it proved the falsity of a police officer’s statement at trial that blood was found in the vehicle.
According to appellees, the collective import of this withheld information was significant because it refuted the Commonwealth’s trial theory, which was that the victim was shot and killed at the park. Appellees say the evidence tended to support Judge Lineberger’s belief, in granting guilt phase relief, that the victim was dead by the time he was brought to the park and shot four times. Repeating the argument they made on the first collateral appeals, appellees contend that the defense forensic evidence at the PCRA hearing established that the victim was already dead by the time they arrived at the park. Proof that the victim was already dead when Pelzer shot him, appellees aver, would undermine the Commonwealth’s proof of their specific intent to kill. Pelzer also argues that this evidence corroborated his statement to the police that the victim was already dead when he shot him at the park. Additionally, appellees contend that the Brady material would have further supported the defense objection to the trial court’s instruction that a specific intent to kill could be inferred from the use of a deadly weapon upon a vital part of the victim’s body.
Appellees next attempt to relitigate the initial PCRA appeals, collaterally attacking this Court’s decision. They argue that the Court’s reasoning was flawed because the Commonwealth’s theory at trial was that the gunshots caused the victim’s death; thus, they believe, a verdict of first-degree murder was only possible by way of a finding that the victim was killed by the multiple gunshots. Appellees note that the trial court declined to instruct the jury on a cause of death other than the shooting, such as strangulation or suffocation. Appellees then contend that this Court’s explication of what the jury might have found if a different theory had been pursued — in discussing Strickland prejudice on the first collateral appeals — violated their Sixth Amendment right to a jury trial. A Strickland prejudice analysis, according to appellees, is constrained by a requirement to contemplate only the trial that actually occurred and cannot proceed on a “speculative” theory of the case not actually pursued by the Commonwealth. See Brief of Appellee Daniels at 33-35, discussing Smith v. Cain, — U.S. —, 132 S.Ct. 627, 181 L.Ed.2d 571 (2012); Chiarella v. U.S., 445 U.S. 222, 100 S.Ct. 1108, 63 L.Ed.2d 348
The Commonwealth responds that the witnesses’s statements about hearing gunshots were not favorable to appellees in a Brady sense and appellees cannot establish that they were prejudiced. The Commonwealth argues that the evidence at best merely corroborated the Commonwealth’s allegation that appellees shot the victim. The Commonwealth notes that this aural evidence certainly does not address whether the victim died at appellees’ hands prior to arriving at the park, which is the point relevant to appellees’ contention. The Commonwealth also avers that appellees did not establish that the evidence was withheld, since Pelzer’s trial counsel’s testimony on the point was equivocal at best. Finally, the Commonwealth argues that any prejudice argument is foreclosed by the Court’s 2009 decision denying relief on the cause of death claim, which is the theory this evidence was relevant to.
The Commonwealth then argues that the remaining two Brady claims — respecting the body receiving record and the forensic report — are waived because they were not raised until after this Court remanded the appeals for the PCRA court to address already existing claims. Alternatively, the Commonwealth contends that the issues are baseless. The Commonwealth argues that the body receiving report is irrelevant because this Court previously concluded that the timing of the victim’s demise was immaterial to specific intent. The Commonwealth then argues that the forensic report (showing no blood) only related to the passenger compartment of the vehicle and did not test items in the trunk. For all of these reasons, the Commonwealth concludes that appellees’ Brady claims fail.
In further responses, appellees largely reiterate points already made, but two points bear further mention. First, regarding the witnesses’ statements concerning hearing gunshots, appellees say the evidence was exculpatory because it was relevant to whether the victim was alive when appellees shot him. Second, and related to the question of waiver,
The PCRA court found that the Brady issue deriving from the body receiving record in fact was not raised in the initial or supplemental PCRA petitions. The PCRA court added that the Brady claims were without merit because the issues related to the manner of the victim’s death, and arguments relating to the manner of death, were previously addressed and rejected by this Court on the first collateral appeals.
To succeed on a Brady claim, the defendant must show that: (1) evidence was suppressed by the prosecution; (2) the evidence, whether exculpatory or impeaching, was favorable to the defendant; and (3) prejudice resulted. A Brady violation exists only where the suppressed evidence is material to guilt or punishment, i.e., where there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. Commonwealth v. Tedford, 598 Pa. 639, 960 A.2d 1, 30 (2008).
Taking the witnesses’ statements concerning gunshots first, we agree with the Commonwealth that appellees have not demonstrated materiality, or even that the statements were favorable to them. The Commonwealth’s theory at trial was that the victim was shot by appellees after being bound and gagged and confined in the trunk of the car, which was a fact that appellees admitted either on the stand (appellee Daniels) or in their statements to police. The alleged Brady evidence does not undermine the Commonwealth’s position that the victim was killed by gunshots. Additionally, appellees’ Brady claim depends upon accepting the notion that trial counsel was constitutionally obliged to pursue the theory that the victim was dead at the time appellees shot him. That Strickland argument was raised and rejected, on prejudice grounds, on the initial PCRA appeals. Daniels and Pelzer, 963 A.2d at 428. We will not reconsider that issue, which is an
Second, the PCRA court correctly determined that the Brady claim related to the body receiving record was waived, as it was not raised prior to the remand. This Court explicitly limited the subject matter of the remand to the remaining issues already raised by appellees; we neither invited nor authorized appellees to raise additional collateral claims years after expiration of the PCRA time-bar. Daniels and Pelzer, 963 A.2d at 435. Thus, this new claim is waived. See Commonwealth v. Porter, 613 Pa. 510, 35 A.3d 4, 12 (2012) (appellant cannot add Brady claim to existing PCRA petition without PCRA court’s permission); Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 320 (2010) (Supreme Court PCRA remand for specific purpose is not authorization to raise new collateral claims).
However, the Commonwealth is incorrect that the Brady issue related to the forensic report was not raised prior to the remand. See Supplemental Motion for Post-Conviction Collateral Relief, 12/22/00, at 6-10. The claim nonetheless fails for the same reason as the claim related to the witnesses’s statements: the materiality of the report depends upon the claim — pursued as an ineffectiveness claim on the initial collateral appeals — that counsel were obliged to argue that the victim was dead at the time appellees shot him. That predicate theory was rejected by this Court, on grounds that appellees failed to show Strickland prejudice. Further evidence supporting the same theory does not alter the Strickland prejudice assessment.
Finally, we address Daniels’s attack upon the Court’s assessment of Strickland prejudice on the prior appeal, on grounds that the Court supposedly cannot discuss other theories not directly presented to the trial jury. This objection was a matter for reconsideration or reargument after our prior decision, and is not an available issue on this appeal, involving distinct claims. In any event, because versions of this subargument are raised by Daniels respecting
This Court often engages in such Strickland assessments as part of our jurisprudential review. In doing so, we appreciate that the task is not to identify various hindsight “gotcha” scenarios: ie., counsel could have done this, or he should not have done that. Indeed, the U.S. Supreme Court has emphasized that the Sixth Amendment right to counsel does not exist in a vacuum, but exists to ensure a fair trial, a trial whose result is reliable. Lockhart v. Fretwell, 506 U.S. 364, 368-69, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993); Strickland, 466 U.S. at 684, 104 S.Ct. 2052; see also U.S. v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (“[T]he right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated.”). The fact that the defendant on collateral attack looks at a fixed record and produces a theory by which trial counsel can be assailed for failing to parry a point made by the Commonwealth does not mean that the Commonwealth would have been left without recourse, under the available evidence. Our examination on the prior appeals reviewed the totality of the
For the foregoing reasons, appellees’ Brady claims do not entitle either to relief.
B.
In another claim relating to their core complaint that their trial counsel were ineffective for failing to better dispute the cause of death, appellees next raise a layered ineffectiveness claim deriving from counsels’ failure to object to the court’s guilt phase jury instructions. Appellees say that those instructions fostered an unbalanced presentation of the specific intent issue and encouraged the jury to presume they had an intent to kill from their act of shooting the victim. Related to this claim, appellees separately aver that trial counsel were ineffective for failing to request a mistake of fact jury instruction.
Thus, Pelzer complains that the trial court focused the jury’s attention on the fact that the victim had been shot without also directing the jury that it had to believe that the victim was alive at the time he was shot in order to find a specific intent to kill. Pelzer contends that the jury should have been told that a reasonable mistake of fact could refute the inference arising from the use of a deadly weapon on a vital part of the victim’s body. Pelzer adds that the trial court did not make any reference to the evidence of strangulation as
Pelzer then argues that trial counsel should have requested a mistake of fact instruction, i.e., an instruction that a mistake of fact exists if the defendant had a reasonable and bona fide belief that the victim was already dead when he shot him, and that such a mistake may negate the inference of an intent to kill. Pelzer says there was sufficient evidence to require such an instruction, citing his statement to the police as proof that he believed the victim was dead prior to the shooting. Brief of Appellee Pelzer at 59, citing 18 Pa.C.S. § 304 (defense of ignorance or mistake of fact). Pelzer says that counsel’s failure was prejudicial because the cause of death was in question. See Initial Brief of Appellee Pelzer, at 61.
Daniels makes essentially the same argument. According to Daniels, the trial court’s instructions shifted the burden to appellees by focusing the jury’s attention on the fact that the victim had been shot, suggesting that the shooting was the cause of death, which made Daniels’s testimony (that he believed the victim was dead at the time he was shot) appear immaterial. Daniels then contends that trial counsel’s decision to join in objections raised by Pelzer’s counsel was inadequate. He adds that appellate counsel was ineffective for failing to raise the issue on direct appeal.
Daniels also contends that a defendant is entitled to an instruction on any recognized defense, so long as it is supported by the record. According to Daniels, there was sufficient evidence to require a mistake of fact instruction, on grounds that he lacked the intent to kill because the victim was dead before being shot and he did not personally pull the trigger. Again seeking to collaterally attack our decision in the prior PCRA appeals, Daniels reiterates his view that this
The Commonwealth responds that the evidence did not support a mistake of fact defense and, in any event, the absence of the instruction did not prejudice appellees. First, the Commonwealth notes that a mistake of fact defense is only available when there is proof that the defendant harbored a bona fide and reasonable belief in a fact that negates the intent to commit the crime. The Commonwealth notes that in this case, Daniels’s testimony showed that appellees were unsure whether the victim was dead and that he was shot in order to make certain he was dead. Thus, the evidence did not show that appellees had a bona fide belief that the victim was dead at the time of the shooting. Additionally, even if they had such a belief, the Commonwealth asserts that the evidence overwhelmingly demonstrated appellees’ specific intent to kill the victim long before they shot him. Thus, according to the Commonwealth, appellees cannot establish an entitlement to relief.
Second, the Commonwealth argues that appellees cannot establish that they were prejudiced by counsels’ failure to request the charge. Given the evidence presented at trial, the Commonwealth argues, the jury could not rationally have concluded that appellees lacked the specific intent to kill even if the jury believed both that the victim in fact was dead at the time he was shot, and that appellees believed he was dead. The Commonwealth points to this Court’s opinion on the prior appeals to buttress its prejudice argument.
In reply, Pelzer argues that his statement to the police showed that he believed the victim was dead when he was shot. Additionally, echoing Daniels, Pelzer says that the Commonwealth’s prejudice argument misses the mark because the trial court’s instructions denied the jury the option to
Daniels responds that the Commonwealth confuses the quantum of evidence necessary to be entitled to an instruction with the quantum necessary to prevail on a mistake of fact defense. According to Daniels, the Commonwealth cannot speculate regarding what the jury would have ultimately decided.
Similar to its assessment of the Brady claim, the PCRA court concluded that this issue was effectively previously litigated on the prior collateral appeals, since this Court concluded that appellees did not establish that they were prejudiced by counsels’ failures in disputing the manner of death.
Preliminarily, we note that Daniels reprises his argument that we are precluded from “speculating” regarding what the jury would ultimately have decided if counsel had pursued a different course. We have already addressed that erroneous notion in disposing of claim A, supra, both in terms of prior litigation on the earlier appeals, and in terms of a proper appreciation of the prejudice assessment under Strickland by a reviewing court.
Turning to the merits, it is notable that neither appellee adequately accounts for the objections actually raised by trial counsel, or this Court’s discussion of a similar issue on direct appeal. In point of fact, Pelzer’s counsel objected to the trial court’s instruction to the jury that the only cause of death was the gunshots and that the specific intent to kill could be inferred from the use of a deadly weapon upon a vital part of the body. N.T., 11/9/89, at 58-61. Daniels’s counsel joined in the lengthy objection. Id. at 61. Counsel for both appellees also specifically asked that the court’s charge on cause of death address the possibility that death was caused by strangulation; and appellees further objected that the court’s charge reflected the trial court’s theory of what had happened, notwithstanding that evidence supporting alternative theories of death had been presented to the jury, which should also be
On direct appeal, appellee Pelzer argued that the trial court improperly expressed its opinion to the jury that the victim died of gunshot wounds thereby compromising the fact-finding function of the jury. The Court rejected the claim on the basis that the trial court’s instructions comported with the evidence. We specifically held that the charge did not undermine appellees’ defense, which was that malice was lacking because they believed the victim to be dead at the time he was shot. See Commonwealth v. Pelzer, 612 A.2d at 413. Appellees now present a similar underlying claim, with a Sixth Amendment gloss sounding in trial counsel ineffectiveness, but without fully accounting for counsel’s actual conduct or the claim raised on direct appeal. Although the Sixth Amendment framing may prevent the claim from being rejected outright on previous litigation grounds, see Commonwealth v. Collins, 585 Pa. 45, 888 A.2d 564, 571 (2005), the fact that prior counsel pursued closely related arguments, only to have them fail, obviously undermines appellees’ present Sixth Amendment claims. Notably, appellees do not adequately address the actual objection forwarded by Pelzer’s counsel, which was joined by Daniels’s counsel, nor do they even acknowledge, much less address, this Court’s discussion of the related issue counsel then raised on direct appeal. Because appellees fail to account for the actual trial (and direct appeal) actions by prior counsel, their current collateral attack is a non-starter.
Finally, we ultimately agree with the PCRA court that the resolution of this issue is controlled by our prior decision on the initial PCRA appeals, where we noted that the specific cause of the victim’s death said “little about appellees’ intention — which was a very different question.” Pelzer and Daniels, 963 A.2d at 428. There was ample evidence from multiple sources supporting appellees’ demonstrated intent to kill their victim. In light of the trial evidence concerning the circumstances leading to the victim’s death at the hands of
C.
Appellees next complain that trial counsels’ guilt phase closing arguments were ineffective. Pelzer avers that his lawyer’s closing failed to offer a coherent defense, but instead consisted of a discussion of general legal principles, which never focused on the issues presented in a “factually complex” case. Again reprising his theory respecting the cause of death, Pelzer complains that counsel never argued to the jury that he lacked the intent to kill because the victim was already dead when he shot him, that shooting a dead person is not murder, and that no inference of intent to kill can be drawn from the shooting if there was a reasonable doubt whether the victim was already dead when he shot him. Pelzer concludes that counsel’s closing was an abdication of responsibility.
Daniels likewise complains that his lawyer’s summation failed to lay out a coherent defense and, worse, argued incorrect legal precepts to the jury. Daniels contends that the argument clouded, rather than clarified, the cause of death and specific intent issues for the jury. Like Pelzer, Daniels avers that counsel should have argued that he could not have harbored a specific intent to kill if the victim was already dead when Pelzer shot him. Daniels also notes that standby counsel and Thomas Bello, Esquire (co-defendant Stacey Torrance’s counsel) testified at the PCRA hearing that trial counsel (retained by Daniels and granted pro hoc vice status) was looking to divine intervention for help instead of arguing the law as relevant to the facts of the case. N.T., 12/12/01, at
The Commonwealth responds that counsels’ performance was more than adequate: they forwarded theories of innocence, attacked the prosecution’s evidence, and emphasized the presumption of innocence and the Commonwealth’s burden of proof.
In specific response to Pelzer, the Commonwealth argues that counsel emphasized that Pelzer was innocent until proven guilty and that the Commonwealth had the burden of proving guilt. The Commonwealth also notes that counsel in fact argued that the victim was dead before he was shot and that, therefore, Pelzer did not have the specific intent to kill. The Commonwealth adds that counsel argued that Pelzer’s inculpatory statements to the police were unreliable and that Daniels’s trial testimony implicating Pelzer should be discounted because he was merely trying to shift blame for the crimes to Pelzer. Alternatively, the Commonwealth offers that Daniels cannot establish prejudice, since even if the jury believed the victim was dead at the time he was shot, this fact did not undermine the proof of the specific intent to kill or that appellees directly caused the victim’s death.
In response to Daniels, the Commonwealth stresses that counsel argued that appellees never intended to kill the victim and that the conspiracy extended only to stealing his keys and burglarizing his parents’ homes. The Commonwealth further highlights that counsel argued that Daniels lacked the specific intent to kill because the victim died before the shooting, and urged the jury to reject Pelzer’s statement that he only shot the victim because Daniels held a gun to his head. The Commonwealth contends that Daniels’s counsel cogently discussed several theories of innocence and emphasized his client’s credibility (since he had been willing to take the stand in his own defense). Moreover, to the extent that counsel misstated the law regarding reasonable doubt, the Commonwealth argues that any misstatements actually favored Daniels, since counsel exaggerated the Commonwealth’s burden of
Daniels briefly responds to the Commonwealth’s arguments by noting that the fact that counsel may have argued some points to the jury that were helpful to him does not render his summation adequate. Daniels acknowledges that his counsel argued that the victim may have been dead when he was shot, but according to Daniels, this argument was undermined by a concession that the victim may have been alive.
The PCRA court very briefly stated that the issues of appellees’ specific intent and the manner of the victim’s death were previously litigated and dismissed. Moreover, the court indicated that the reasonable doubt instruction issued by the trial court was correct. Accordingly, the court determined that this ineffectiveness issue failed.
In Commonwealth v. Bryant, 579 Pa. 119, 855 A.2d 726 (2004), the Court summarized the deference required in reviewing an attorney’s summation as follows:
The right to effective assistance extends to closing arguments. Nonetheless, counsel has wide latitude in deciding how best to represent a client, and deference to counsel’s tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage. Closing arguments should “sharpen and clarify the issues for resolution by the trier of fact,” but which issues to sharpen and how best to clarify them are questions with many reasonable answers. Indeed, it might sometimes make sense to forgo closing argument altogether. Judicial review of a defense attorney’s summation is therefore highly deferential.
Id. at 742 (quoting Yarborough v. Gentry, 540 U.S. 1, 5-6, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003)). Additionally, the Bryant Court stressed that review must be based on the entirety of the summation and not mere snippets or arguments taken out of context. Id. at 743.
Thus, Pelzer’s counsel first reviewed the law guiding the jury’s deliberations, emphasizing the presumption of innocence and the nature of reasonable doubt. Counsel then sought to blunt the harmful effect of Pelzer’s statement to the police, arguing that it was unreliable because of the circumstances surrounding the interview. He also addressed Daniels’s damaging trial testimony that attempted to shift the blame for the shooting to Pelzer and to distance himself from any conspiracy to kill the victim, and asked the jury to compare Pelzer’s statement against Daniels’s trial testimony. Counsel then asked the jury to consider Daniels’s prior history and the physical evidence that was found in Daniels’s possession, and then reject Daniels’s trial testimony. N.T., 11/8/89, at 41-44, 45, 46-50, 50-52.
Following Pelzer’s counsel, Daniels’s counsel reminded the jurors of the important function they served as judges of the facts. He emphasized that the alleged conspiracy was not well organized and was based on a “loosely arranged” agreement. His main contention — logical in light of the evidence that Pelzer fired the shots the Commonwealth argued were fatal— was that the conspiracy extended only to the robbery and burglary, but never included a murder. Additionally, counsel argued that Daniels withdrew from the conspiracy prior to the shooting, a theory that was based on Daniels’s own trial
Counsel then turned to the concepts of the presumption of innocence and reasonable doubt. Related to reasonable doubt, counsel confusingly stated that “there is no reason, reasonable reason that we can assign that he’s innocent or that this fact may not be so.” In a rhetorical flourish, counsel then stated that he had coined the term “assumption of innocence” rather than “presumption of innocence,” explaining to the jury that he “preferred” that term. Counsel later addressed the concept of reasonable doubt in a similarly idiosyncratic fashion, explaining that,
I mean you have a whole avalanche of evidence [from the Commonwealth]. But what [reasonable doubt] is, you have to look on the other side and say okay ... there is evidence that this has transpired but over here is a candle that says look at me, can you dismiss me, can you dismiss me. As long as you cannot blow out the candle by a reasonable doubt, then the law says you have to find for the Defendant. ... That’s been our principle of law since man remembers to the contrary. Man doesn’t remember to the contrary. That’s why when a person says they have a criminal record or that they have been found guilty of something, it*236 carries such a stigma, that is because a jury of your peers has found that there was no evidence of your innocence.
You see, they didn’t find that they believed that you were innocent or they believed that they were guilty, that’s not the test. That’s not the test. The test is that the Jury has deliberated and they find that there is no fact, reasonable fact establishing your innocence. That’s an entirely different situation, not finding a reasonable fact to establish an innocence than to say we feel that you’re guilty. You say this is done, this is not a test. We didn’t bring you hear [sic] to determine how you feel or what, you know, your basic assumptions or what your basic notions are. Your role is to determine the facts based on that standard of reasonable doubt.
Id. at 95, 98, 99-100, 103,108,110.
It was no easy task for either defense lawyer in this case given appellees’ extended detention of the teenaged victim in horrifically confined circumstances, and the task no doubt was particularly difficult for Pelzer’s counsel because of the evidence that his client had delivered the four-shot coup de grace. (The point is that even if the jury were to believe that the victim was already dead, at appellees’ hands, the act of shooting made the road that much harder for counsel.) The main thrust of Pelzer’s counsel’s argument was aimed at blunting the two most damning sources of evidence against his client: Pelzer’s own incriminating statement to police and Daniels’s trial testimony, in which Daniels’ claimed, for first time, that he intended to let the victim go. Counsel argued that Pelzer’s police statement was not reliable and that Daniels should not be believed. Counsel also touched upon the issue related to the cause of death. These were among the very few arguments to be made given the facts and circumstances surrounding the crime and Daniels’s trial decisions.
Daniels’s counsel stressed those aspects of the case distinguishing his client from Pelzer in a fashion that might warrant a lesser verdict, in particular the slant that could be derived from the fact that he was not the shooter. In addition, counsel argued that his client had withdrawn from the conspir
We do not suggest that either closing argument was a paragon of clarity. But, considering the purpose and potential effect of summation — which remains merely argument — neither are we prepared to hold that the presentations here were so lacking as be constitutionally deficient under Strickland. Moreover, to the extent the arguments by either or both lawyers can be deemed deficient, we are satisfied that appellees have not proven Strickland prejudice. Again, a central part of appellees’ argument turns on the pervasive complaint that counsel did not more aggressively or directly pursue a cause of death-based defense. We have already addressed the considerations weighing against the notion that that course offered a reasonable probability of a better outcome, given the damning evidence counsel had to contend with and could not explain away.
Accordingly, we hold that appellees’ claims respecting their lawyers’ guilt phase closing arguments fail. The layered claims related to appellate counsel ineffectiveness necessarily fail as well.
D.
Co-defendants Stacey Torrance and Eugene McClure were tried together with appellees. Each of the four defendants had made a statement to the police and each statement
Pelzer contends that the statements were “interlocking,” that the admission of the statements violated his constitutional rights to confrontation and due process under Bruton, and that the trial court’s instructions did not cure the error. Moreover, according to Pelzer, redaction alone does not avoid the reach of Bruton when the redacted statement is powerfully incriminating. Additionally, Pelzer argues that the redactions were insufficient because the jury could infer to whom the statements referred in light of their interlocking nature. Pelzer declares that “there are also numerous specific ways in which the statements interlock ...,” Brief of Appellee Pelzer, at 70, but he fails to identify any of these alleged “specific ways.”
Daniels also emphasizes the interlocking nature of the statements. Daniels argues that the redactions were inadequate and alerted the jury to the fact that names were removed, making the redactions especially suspect. Brief of Appellee Daniels, at 42-43 (citing U.S. v. Tutino, 883 F.2d 1125 (2d Cir.1989) and U.S. v. Long, 900 F.2d 1270 (8th Cir.1990)). Like Pelzer, Daniels contends that the statements were “powerfully incriminating” and lent substantial weight to the prosecution’s case in violation of Bruton. Daniels then goes the next step and specifically summarizes the statements to demonstrate how he believes they incriminated him. Finally, Daniels alleges that appellate counsel was ineffective for failing to raise the preserved Bruton issue on direct appeal.
The Commonwealth responds that in order to violate Bruton, the non-testifying co-defendant’s statement must be incriminating on its face without linkage to other evidence. Where the statement is redacted and the jury is properly instructed, the Commonwealth contends, no Bruton violation
Pelzer responds that the Commonwealth’s argument fails to address the interlocking nature of the statements under Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987). Pelzer also cites Vazquez v. Wilson, 550 F.3d 270 (3d Cir.2008), for the proposition that contextual implication can violate a defendant’s rights under the Confrontation Clause.
The PCRA court concluded that the statements were all properly redacted by replacing references to the co-defendants’ names with neutral pronouns, such as “he,” “him,” or “the other guy.” The PCRA court also detailed the trial court’s instruction, concluding that the trial court properly instructed the jury.
Under governing precedent, the underlying Bruton claim is without merit, and thus the collateral claim focusing upon appellate counsel lacks merit. We need not engage the parties’ reliance upon decisional law from other jurisdictions, including the Third Circuit U.S. Court of Appeals, because those cases do not control, see, e.g., Stone Crushed Partnership v. Kassab Archbold Jackson & O’Brien, 589 Pa. 296, 908 A.2d 875, 884 (2006), and there is ample decisional case law from this Court following and applying Bruton.
The general rule in a joint trial of co-defendants is that the law presumes that the jury can follow an appropriate instruction, which explains that evidence introduced with respect to only one defendant cannot be considered against other defendants. Bruton departed from this salutary general rule only by concluding that where there are “powerfully incriminating statements” admitted against a non-testifying
Applying these settled principles, appellate counsel cannot be deemed ineffective for failing to pursue the Bruton claim on appeal. The co-defendants’ statements here were redacted by using neutral pronouns, blunting the concern that they could be deemed incriminating (as to the other co-defendants) on their face. Indeed, appellees point to no specific redaction that reflects an obvious method of deletion that would have invited the jury to substitute one or another co-defendant’s name. Additionally, the trial court gave an appropriate limiting instruction at the time the statements were admitted, and again at the conclusion of trial, directing the jury that “a statement made before trial may be considered only as evidence against the one who made the statement.” N.T., 11/9/89, at 24. Appellees’ current arguments largely ignore the specifics of the redactions. The Cruz case that Pelzer cites stands for the proposition that unredacted interlocking confessions cannot be presumed to be admissible. That did not happen here. The U.S. Supreme Court and this Court have specifically approved of the method of redaction em
E.
Finally, Daniels raises two guilt phase claims not raised by Pelzer. First, Daniels alleges that the trial court’s reasonable doubt instruction employing the language “restrain” was in error and trial counsel was ineffective for failing to object to the charge. Daniels focuses upon the trial court instructing the jury that “[a] reasonable doubt is a doubt that would cause a reasonably careful and sensible person to restrain before acting upon a matter of importance in his own affairs.” N.T., 11/9/89, at 14-15. The Commonwealth responds that the trial court has broad discretion in phrasing jury instructions and that this Court has rejected the very same challenge in many prior cases. The PCRA court’s reasoning follows the precedent-based argument forwarded by the Commonwealth.
While the more commonly used instruction respecting reasonable doubt employs the term “hesitate” rather than “restrain,” this Court has repeatedly rejected the argument Daniels forwards, finding the distinction between the two terms to be de minimis. See Commonwealth v. Simpson, 620 Pa. 60, 66 A.3d 253, 274-75 (2013) (collecting cases); Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 264 (2008) (collecting cases). Trial counsel was not ineffective for failing to raise a claim repeatedly rejected; the layered claim of appellate counsel ineffectiveness necessarily fails.
Second, Daniels raises a layered claim of ineffectiveness arising from the trial court’s use of the court crier to communicate instructions to the jury outside of his presence. Daniels avers that the trial court told the crier to relay instructions to avoid the press and to avoid discussions of the
The PCRA court concluded that the statements were communicated to the crier in the presence of all counsel. Furthermore, the PCRA court noted that the instructions did not involve legal matters, but were administrative in nature. Accordingly, the court concluded that the claim lacked merit.
As a claim sounding in ineffectiveness, this issue is frivolous. Two of the three interactions referenced by Daniels involved instances when the jury was discharged for the day. In the first instance, the court told the crier to let the jury go home and “tell them I caution them not to discuss the case.” N.T., 11/3/89 at 182. The second instance occurred when the judge released the jury for the weekend, instructing the court crier to inform the jury that they could go home and that “they [were] not to read any articles in the newspaper about this case or anything dealing with this case.” N.T., 11/10/89, at 79. The third instance occurred after the jury asked to be reinstructed on accomplice liability and murder. The court told the crier to tell the jury to “save [the request] for tomorrow morning.” N.T., 11/9/89, at 123.
The notion that the outcome of the trial would have been different if only trial counsel had objected to the above three administrative directives is ludicrous. Lawyers are not constitutionally obliged to be obstreperous or to make objections just to make them. Pennsylvania law generally requires a showing that ex parte communications with a jury resulted in prejudice in order to warrant relief. See Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 313 (2010) (“Nothing in the truncated explanation of the court crier, or in appellant’s proffer, suggests that the court crier’s communication with the jury, concerning the mere logistics of recording the verdict on
Daniels has not established that the substance of the crier’s communications with the jury was anything other than what the court directed in open court in the presence of the parties. The crier’s communications were administrative in nature and did not touch upon substantive matters. Moreover, the directive regarding discussions of the case when the jurors were sent home were consistent with the law governing jury deliberations, and mere reminders of directives the judge issued to the jury in open court at other times. This layered claim is frivolous.
IV. PENALTY PHASE ISSUES
Having concluded that appellees raise no guilt phase issues warranting relief, we now turn to the penalty phase. The PCRA court granted appellees penalty phase relief with regard to their claims that trial counsel were ineffective for failing to investigate and present evidence in mitigation. We address this issue first.
A.
It is well-settled that “judicial scrutiny of counsel’s performance must be highly deferential.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Few tenets are more settled than the strong presumption that counsel is effective. Id. at 690, 104 S.Ct. 2052; Burt, — U.S. at —, 134 S.Ct. at 17. “Generally, where matters of strategy and tactics are concerned, counsel’s assistance is deemed constitutionally effective if he chose a particular course that had some reasonable basis designed to effectuate his client’s interests.” Commonwealth v. Puksar, 597 Pa. 240, 951 A.2d 267, 277 (2008) (quoting Commonwealth v. Miller, 572 Pa. 623, 819 A.2d 504, 517 (2002)).
The Strickland test for prejudice requires a showing of a reasonable probability that the outcome of the penalty proceeding — here, the unanimous verdict of death — would have been different. Obviously, a penalty verdict only sufficiently supported by the record is more likely to have been affected by a deficiency in counsel than one with overwhelming record support. Ultimately, a reviewing court must ask whether “the result of the particular proceeding [was] unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.” Lesko, 15 A.3d at 383. In this case, as the jury found four aggravating circumstances and two mitigating circumstances related to each appellee, the prejudice inquiry considers whether there is a reasonable probability that, had the PCRA evidence been adduced at the penalty phase at least one juror would have concluded that the mitigating circumstances collectively outweighed the aggravating ones. Commonwealth v. Gibson, 610 Pa. 332, 19 A.3d 512, 526 (2011) (“Gibson II ”).
Pelzer testified that he did not have a prior criminal record, that he moved in with his father at some point and that he eventually lived with Foy when he was sixteen or seventeen. He listed the number of sports teams he played on in high school, stating that he did not complete high school. He also explained that he participated in, but did not complete, the Reserve Officers’ Training Corps (“ROTC”) program. Pelzer testified that he began using drugs and alcohol when he was fifteen and that he had been using cocaine and drinking at the time of the crime. N.T., 11/13/89, 25, 28, 30-31.
Foy briefly testified as to Pelzer’s background, noting that he was a “slow learner but he was gifted with his hands.” She further testified that Pelzer lived with her for “awhile” off and on, and that he was always respectful to her and her family. N.T., 11/13/89, at 46. Ultimately, members of the jury found two mitigating circumstances: (1) the jury unanimously found the no significant criminal history mitigator, 42 Pa.C.S. § 9711(e)(1), and (2) one juror found the catchall mitigator under subsection 9711(e)(8).
Based upon Pelzer’s PCRA presentation, the PCRA court found that trial counsel could have presented additional and more pointed evidence from Foy, as well as testimony from Pelzer’s uncle, Hilderbrand Pelzer, and his aunt Gloria (Hilderbrand’s wife), about Pelzer’s childhood circumstances. The court further found that trial counsel could have presented expert testimony in support of two additional mitigating circumstances.
Foy testified at the PCRA hearing, offering what was indeed more pointed testimony of Pelzer’s life history. Specif
Foy also testified that the men in Pelzer’s mother’s life abused the children. In particular, she testified that one man, Tony Barnes, raped Pelzer’s sister and beat Pelzer and his brother with two-by-four pieces of wood. Foy said that she witnessed Barnes hitting Pelzer with an ironing cord until his skin split open and that Barnes would threaten the children “with special little weapons, like metal things tied with knots and nails.” Foy claimed that she tried to intervene, but Pelzer’s mother was not receptive. Foy stated that she informed trial counsel of Pelzer’s childhood circumstances, but she was not asked any questions regarding the information when she testified at the penalty phase.
Gloria and Hilderbrand Pelzer testified at the PCRA hearing that Pelzer was designated as socially/emotionally disturbed in school. Hilderbrand and Gloria stated that they would have testified at the penalty phase hearing had they been asked.
Pelzer also presented expert testimony from two psychologists with Ph.D.s, Dr. Harry Krop and Dr. Barry Crown, at the PCRA hearing. Dr. Krop testified that school records indicated that Pelzer had a learning disability and that he suffered from “social, emotional problems, impulsivity, depression, insecurity, feelings of inadequacy relative to social situation, and considerable inner tension.” Dr. Krop admitted that there was no evidence of a “diagnosable mental disorder,” and diagnosed Pelzer as suffering from polysubstance abuse. He further testified to an opinion that the interactive effect of Pelzer’s background, his learning disability, and his drug dependence resulted in certain personality characteristics and coping strategies that combined to cause him to have an
Dr. Crown testified that Pelzer’s IQ test results were in the normal range and that he “matured out of some of these problems with age.” Dr. Crown noted that the school records reflected that there was a referral to a child psychiatrist and evidence of depression, feelings of inadequacy and anxiety. Like Dr. Krop, Dr. Crown testified to a “cumulative” effect of circumstances. In his opinion, Pelzer’s background of abuse, dysfunction, learning problems, and drug abuse caused Pelzer to suffer from an extreme mental or emotional disturbance at the timé of the offense which impaired his capability to appreciate the criminality of his conduct and to conform his actions to the requirements of the law, evidence in support of the same § 9711(e)(2) and (e)(3) mitigators cited by Dr. Krop. N.T. 12/13/01, at 21, 27, 30-31, 41-42.
Mr. Padova, Pelzer’s trial counsel, also testified at the PCRA hearing, offering that it would have been his practice to obtain Pelzer’s school records, but admitting that he did not have notes indicating that he requested the records and he did not recollect reviewing the records. N.T., 5/10/02, at 47. Padova admitted that he did not retain a mental health expert, but indicated he may have done so if he had the school records. Id. at 49-50. (The PCRA court noted in its opinion that the school records reflected that a psychological examination was performed on Pelzer at age 14 and found him to be socially and emotionally disturbed; he was placed in a special class. The record supports the PCRA court’s notation.)
Padova, testifying over twelve years after the trial, did not recall much of his investigation and the interviews that he
The Commonwealth presented rebuttal expert testimony from Dr. John O’Brien (M.D. Psychiatry) and Dr. John Gordon (Ph.D. Psychology). Dr. O’Brien testified that he disagreed with the diagnosis of a mixed personality disorder found in the presentence investigation prepared after the trial. In any event, Dr. O’Brien further stated that a mixed personality disorder does not amount to an extreme mental or emotional disturbance. He agreed that Pelzer suffered from a history of alcohol and mixed substance abuse, but stated that such abuse likewise is not an extreme mental or emotional disturbance. Dr. O’Brien specifically disagreed with Dr. Krop and Dr. Crown’s opinions that there was evidence establishing the (e)(2) or (e)(3) mitigator. Dr. O’Brien also did not agree that there was evidence of a learning disability, noting that the school records reflected that Pelzer’s intelligence was “normal,” and that his problems were “emotional.” N.T., 5/9/02, at 30-32, 122-24, 207-09.
Dr. Gordon testified that he did not agree that Pelzer suffered from a learning disability. Instead, like Dr. O’Brien, he testified that Pelzer’s school problems “were directly related to his social and emotional difficulties.” Thus, Dr. Gordon specifically discounted Pelzer’s experts’ notion of cumulating
The PCRA court concluded that there was no reasonable or strategic reason for trial counsel’s failure to contact and present testimony from Gloria and Hilderbrand. Furthermore, the court faulted trial counsel for failing to thoroughly question Foy while she was on the stand, noting that her testimony at trial was four pages long as compared to the forty-six pages of testimony at the PCRA hearing. The PCRA court further found that trial counsel failed to adequately review Pelzer’s school records, “as a cursory examination would have revealed [his] long-standing psychological issues.” Furthermore, according to the court, a reasonable attorney would then have hired a mental health expert given the information in the school records. The court also noted that “the pre-sentence investigation reported that Pelzer had been diagnosed with mixed personality disorder. This was not presented to the jury during the penalty phase.”
The PCRA court did not separately discuss Strickland prejudice for each appellee, summarily concluding instead only that, had the jury known of the troubled lives and psychological issues afflicting each appellee from multiple sources, at least one juror would likely have considered the mitigation
On its present appeal, the Commonwealth argues that trial counsel was effective. The Commonwealth notes that trial counsel spoke with Pelzer about his background, asking him for the names of anyone who could testify on his behalf. The Commonwealth stresses that trial counsel interviewed Pelzer’s mother, Foy, Hilderbrand, Pelzer’s girlfriend, and a friend named Angel. The Commonwealth notes that Foy was called and testified that Pelzer was a “slow learner.” Related to information in the school records, the Commonwealth avers that no one had indicated to counsel that there could be possible mitigation evidence in those records. Instead, the only information that counsel received from Pelzer and his family was that he was disrespectful in school and was expelled. The Commonwealth further contends that this sort of negative information also was incompatible with counsel’s penalty phase strategy of casting Pelzer in a positive light. Thus, the Commonwealth concludes that counsel cannot be faulted for failing to uncover any mental health mitigation evidence, as he never received any information that would cause him to thoroughly investigate the school records and, in any event, the information identified at the PCRA hearing was contrary to his strategy.
Respecting Foy, the Commonwealth stresses that trial counsel asked Foy open-ended questions, which provided an opening for discussing the trauma and abuse Pelzer allegedly suffered as a child. For example, trial counsel asked Foy why
The Commonwealth also addresses trial counsel’s failure to present at trial the pre-sentence investigation report (despite its non-existence at the time of trial) that diagnosed Pelzer as suffering from a mixed personality disorder. The Commonwealth argues that such a diagnosis is a catch-all and does not constitute an extreme mental or emotional disturbance. Moreover, the Commonwealth notes that its expert disputed that diagnosis.
In any event, according to the Commonwealth, the evidence produced at the PCRA proceeding would not have changed the outcome of the trial, as the evidence may have suggested that abuse occurred, but also would have demonstrated that Pelzer “enjoyed the love and support of numerous concerned adult relatives to help him overcome these obstacles.” Brief of Commonwealth at 42. The Commonwealth further argues that the school records did not shed light on any of Pelzer’s problems. The Commonwealth again emphasizes that its own experts did not diagnose Pelzer with any serious mental health issues and did not even find that he had a learning disability. For these reasons, the Commonwealth concludes that Pelzer cannot establish that he was prejudiced by any alleged penalty phase ineffectiveness of counsel.
Pelzer responds that the PCRA court’s findings are supported by the record. Specifically, Pelzer contends that counsel conducted a very limited investigation into mitigation evidence, relying on only a narrow set of sources. Pelzer also reiterates his view that counsel failed to adequately and thoroughly question Foy when she was on the stand. Pelzer argues that counsel met with Foy for fifteen minutes prior to
Pelzer then turns to his school records and expert testimony, arguing that even a cursory examination of the records would have revealed his longstanding psychological issues. Furthermore, such records, according to Pelzer, would have revealed (1) that he had been placed in classes for social and emotionally disturbed children and (2) his unstable home environment (given his frequent changes of address). Pelzer extends this argument by alleging that the school records would have prompted a reasonably effective attorney to consult with a mental health expert, which, he says, would have led to mitigation evidence of the type he presented during the PCRA hearing.
Pelzer further argues that the lack of a proper investigation prejudiced him as his experts opined that the evidence supported two different statutory mental health-related mitigating circumstances, and also provided additional information relevant to the catch-all mitigator one juror found. Prejudice is established, he says, given the amount of information that was available, but not discovered, and the dearth of information that was actually presented. Accordingly, Pelzer concludes that the PCRA court’s determination that a new penalty phase is warranted should stand.
Having reviewed the testimony presented at the penalty phase, the additional evidence that allegedly could have been discovered and presented, and the parties’ arguments, we conclude that the PCRA court did not err in holding that Pelzer established the performance prong of Strickland, i.e., that trial counsel’s penalty phase performance in ascertaining and presenting mitigation evidence was deficient.
More importantly, this information would have prompted reasonably competent counsel to at least consult with a mental health expert and consider whether further psychological examination was warranted to determine if there was something in his client’s background that could have supported a stronger case in mitigation. Notably, the nearly contemporaneous diagnosis found in the pre-sentence report, although it was not nearly so specific or favorable as the PCRA testimony of the experts Pelzer retained for PCRA purposes (who adverted to specific statutory mitigators) offers some measure of corroboration that evidence pertinent to a mitigation presentation sounding in mental health could have been obtained for trial if counsel had pursued the course suggested by the school records.
Again fully mindful that any case in mitigation sounding in the specific (e)(2) and (e)(3) mental health mitigators was
Although the issue is close, and reasonable judicial minds might disagree, we also believe that Pelzer has demonstrated Strickland prejudice. The jury unanimously found four aggravating circumstances: (1) the victim was a prosecution witness to a murder or other felony; (2) the victim was being held for ransom or reward; (3) the offense was committed by means of torture; and (4) Pelzer and his cohorts
Given the relative paucity of the mitigation presentation by counsel at trial, it is significant that jurors were still receptive enough to find two mitigators, one unanimously; and that finding also suggests that the jury did not view the aggravators established by the Commonwealth as being of such a quality — as, for example, in a case of multiple murders — as to make the jury unreceptive to a comparative case in mitigation. Compare Lesko, 15 A.3d at 383-85 (multiple murders case). When analyzing Strickland prejudice in the context of the penalty phase of a capital trial, we must also keep in mind how tailored death penalty proceedings are toward life sentences, largely under the command of the U.S. Supreme Court, not only in the channeling of aggravators and the differing burdens of proof governing aggravators and mitigators, but also in the fact that a single juror can effectively negate the prospect of a death sentence. See Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d 1110, 1149-50 (2008) (Castille, C.J., concurring, joined by McCaffery, J.) (“Gibson I ”); 42 Pa.C.S. § 9711(e)(l)(iv).
Thus, for purposes of assessing Strickland prejudice, the question is whether the defendant has shown a reasonable probability that, had the mitigation evidence adduced at the PCRA hearing (and rebutted by the Commonwealth) also been presented at the penalty phase, the outcome of the proceedings would have been different because at least one juror would have found that the mitigating circumstances collectively outweighed (or were as weighty as) the aggravating circumstances, or to convince a juror to find that the overall quality of the case in mitigation warranted a sentence of life in prison. See, e.g., Gibson II, 19 A.3d at 526. Parenthetically, we note that the Court has previously held that where the jury has found a mitigating circumstance, including the catchall miti
The task of reweighing is not an exact science: we must evaluate the relative strength of the evidence in aggravation and mitigation, as well as the parties’ arguments in light of the full hybrid record produced at trial and upon collateral attack. Id. Here, much of the evidence that Pelzer offered on collateral attack, in addition to arguably supporting the mental health mitigating circumstances outlined in Section 9711(e)(2) and (3), would also tend to strengthen the case in support of the (e)(8) catchall mitigator, lending more weight to that mitigator. At the PCRA hearing, Drs. Krop and Crown testified that the information provided to them supported conclusions that Pelzer suffered from an extreme mental or emotional disturbance at the time of the offense which impaired his capability to appreciate the criminality of his conduct (the (e)(2) mitigator), and that he was unable to conform his conduct to the requirements of the law (the (e)(3) mitigator). The experts based their opinions on a combination of factors, including Pelzer’s learning disability, his troubled childhood, and his drug and alcohol abuse. To be sure, the Commonwealth presented
Meanwhile, the evidence in aggravation established that appellees and their cohorts kidnapped a 16-year-old youth and held him for ransom before deciding to kill him. Although there was some division on the Court in resolving the direct appeal, concerning the sufficiency of the evidence to prove the torture aggravator and the aggravator involving a killing to eliminate a witness, the other two aggravators — that the victim was being held for ransom and that he died while appellees were committing the felony of kidnapping — were strongly supported by the evidence. Moreover, in assessing Strickland prejudice, although some members of the direct appeal Court may have been unconvinced respecting certain aggravators, the fact remains that the jury unanimously found all four circumstances beyond a reasonable doubt; contrary to the view of the PCRA court, there is no reason to believe that the jury harbored the same doubts about those aggravators
This is a strange business, assessing the relative heinousness of murders as against evidence in mitigation. Obviously, a murder can be committed without first subjecting a young victim to the terrorization inherent in confining the youth in the trunk of a car for a mercilessly long period of time, with a sock stuck into his mouth in a manner that could easily cause asphyxiation; there is, to be sure, an extra measure of depravity beyond “mere” murder here. Nonetheless, particularly given the weakness of the case presented in mitigation at trial, and the dictated standard of Sixth Amendment review, we conclude that there is a reasonable probability that at least one juror would view both the mitigation case differently, and the overall penalty judgment differently, and would have decided against the imposition of the death penalty. In our view, there is at least a sufficient prospect of that result as to call into question the basic fairness of the proceeding, in light of counsel’s ineptitude. Accordingly, we affirm the PCRA court’s award of a new penalty phase hearing as to appellee Pelzer.
B.
We turn now to the Commonwealth’s appeal challenging the grant of penalty phase relief to Daniels, on grounds that trial counsel was ineffective in his presentation of mitiga
In his closing argument to the jury, counsel admitted that this was a “cruel” crime, but he then argued for mercy. Counsel explained that Daniels would have to spend every day for the duration of his life in prison, which is a serious penalty. He then asked the jury what legal authority it had to take a life and argued that extending mercy was consistent with a mind of goodness and fairness. Finally, he focused on the value to society if Daniels was not put to death, since he would be an example of positive change for the other inmates. N.T., 11/13/89, at 138-48. Ultimately, members of the jury found two mitigating circumstances: (1) six jurors found the no significant criminal history mitigator, 42 Pa.C.S. § 9711(e)(1), and (2) the jury unanimously found the catchall mitigator under subsection 9711(e)(8).
At the PCRA hearing, Daniels’s mother, Jacqueline Daniels, testified concerning various negative or traumatic events in
Daniels also presented expert testimony from Dr. Allen Tepper (Ph.D. in psychology), who testified — based upon school records, his interview with Jacqueline Daniels (who provided him with the information relayed above), and a mental health evaluation — to an opinion that Daniels suffered from a mixed personality disorder and was dependent upon drugs and alcohol. Dr. Tepper further stated that this diagnosis was supported by the diagnosis in the pre-sentence investigation report, as well as the opinion of the Commonwealth’s PCRA expert, Dr. O’Brien, who had diagnosed Daniels as suffering from alcohol and drug abuse.
On cross-examination, Dr. Tepper noted that Daniels had achieved fairly good grades during 7th and 8th grade and in 10th grade, and he specifically testified that he did not believe that Daniels met the criteria for the (e)(3) mitigator (regarding the ability to conform one’s conduct to the requirements of the law). However, Dr. Tepper reiterated his opinion that,
Attorney Houston, an out-of-state practitioner hired by Daniels’s family, did not appear at the PCRA hearing; there is no explanation in the record for appellee’s failure to call him. Instead, Daniels called Attorney Drost. Drost testified that he reviewed the available discovery and hired an investigator prior to Houston’s involvement in the case. Drost also recalled that his private investigator contacted Dr. Tepper, explaining that it was part of his normal routine in capital cases. He further testified that Dr. Tepper did not always issue an expert report. Drost recalled interviewing Jacqueline Daniels, but did not recall whether he had obtained Daniels’s school records. Drost recalled discussing both the guilt and the penalty phase with Houston, and specifically remembered discussing Daniels’s upbringing with Houston and offering that “bringing out testimony of these types of things would be mitigation.” He did not recall that Houston ever provided him a reason why he did not present that evidence, but Drost opined that “Mr. Houston’s approach was to rely upon the Almighty____” Drost also testified to his own preferences, i.e., that he would have presented mitigation evidence of Daniels’s upbringing, childhood abuse, numerous relocations, and the death of his two siblings during the penalty phase. Drost further explained that he provided all of his notes and relevant information to direct appeal counsel, adding that he also conveyed to appeal counsel his opinion that “this was perhaps the worst single job of lawyering that I had ever seen.” N.T., 12/12/01, at 8-9, 12, 23-24, 50-51, and 70 (redirect).
Daniels testified at the PCRA hearing, discussing that he had been “saved” since the time of his crime and explaining how his prison activities furthered his religious conversion.
The PCRA court opined that trial counsel’s penalty presentation focused on Daniels’s religious conversion after he was arrested, while presenting very little evidence respecting his
On appeal, the Commonwealth argues that Attorney Drost conducted a thorough investigation of possible mitigation evidence concerning Daniels’s background by interviewing family members. The Commonwealth further notes that Drost knew of the deaths of Daniels’s sister and brother, that Daniels had moved numerous times, and that he lacked a male role model. The Commonwealth further notes that Drost hired a forensic clinical psychologist prior to trial (Dr. Tepper), who evaluated Daniels in preparation for the penalty phase.
The Commonwealth avers that counsel then presented an adequate case in mitigation at trial. The Commonwealth emphasizes that Drost “was just as much Daniels’[s’] trial
The Commonwealth also contends that producing “more” background testimony of the same basic life history carried a “substantial risk of alienating the jury” as it could have led the jury to believe that Daniels was irredeemable. Instead, the Commonwealth claims, counsel struck a balance by presenting evidence of Daniels’s background without repeating the negative information “ad nauseum.”
In any event, according to the Commonwealth, Daniels was not prejudiced by counsel’s alleged ineffectiveness. The Commonwealth argues that Dr. Tepper’s diagnosis of mixed personality disorder and drug dependency would not have changed the outcome of the penalty phase. Furthermore, the Commonwealth notes that Dr. Tepper testified at the PCRA hearing that Daniels did not have a mental illness or organic brain damage, and that he had the capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of the law. Additionally, the Commonwealth argues that the testimony of Jacqueline Daniels was not particularly persuasive, and supported a determination that Daniels was a “normal” child — indeed, he was the first of her children to graduate from high school, he did not give her any trouble or cause trouble in school, and he attended college. For these reasons, the Commonwealth concludes that testimo
Daniels responds that trial counsel whitewashed his history of childhood abuse and trauma, events which shaped his psychological functioning at the time of the murder. Daniels argues that his parents failed to furnish life’s basic necessities, such as shelter, sustenance, love, and emotional support. Instead, he suffered mental and physical abuse at the hands of his father and witnessed similar abuse directed at his brother and mother. Daniels adds that the suicide of his older brother had a “stunning” impact on him and that everything fell apart thereafter. Brief of Appellee Daniels, at 17.
Daniels further notes that some of this information was gathered by Mr. Drost, yet Mr. Houston never presented the information. Furthermore, counsel failed to perform any type of psychological profiling, but instead, Daniels says, chose to rely on “divine intervention,” an ineffective strategy.
Daniels further argues that counsel’s decision to rely on post-incarceration achievements when there was readily available life history evidence was inadequate. Daniels then avers that the PCRA court correctly concluded that trial counsel did not fully investigate the available mitigation evidence and then make a reasoned strategic decision. Instead, counsel failed to properly prepare for the penalty phase.
Finally, Daniels turns to Strickland, prejudice, arguing that his traumatic life experiences resulted in lasting psychological effects. He notes that the prosecutor argued to the jury that there was no mitigation evidence offered at trial other than the “possibility that he may have gotten religion.” N.T., 11/13/89, at 122. Echoing the PCRA court, Daniels asserts that the evidence he produced at the PCRA hearing would have altered the sentencing profile presented to the jury. Daniels also contends that the fact that the jury unanimously found the catchall mitigator does not disprove that he was prejudiced, since the jury may have accorded the mitigating circumstances much greater weight had it been exposed to the
For purposes of decision, we will assume that counsel’s performance was deficient (although the point is debatable); however, we are not persuaded that Daniels has established that he was prejudiced by counsel’s failure to produce additional mitigation evidence along the lines of what was produced at the PCRA hearing. Counsel presented a modicum of evidence to the jury of Daniels’s troubled background, but mixed it with an evidence on some of his successes in life, combined with an acceptance of responsibility, an apology, and evidence of Daniels’s religious conversion — a point no doubt resonant with many jurors, and a point understandably important enough to Daniels himself that he repeated it at the PCRA hearing. The jury still returned a unanimous verdict of death. By way of immediate comparison, the additional mitigation evidence adduced at the PCRA hearing was not so different or significant as that proffered by co-defendant Pelzer in his own collateral presentation. Thus, Dr. Tepper opined that Daniels suffered from a mixed personality disorder and substance abuse, testimony that was not as precise or certain as the testimony of Dr. Crown or Dr. Krop, and it is difficult to see how it could have altered the outcome of the penalty proceeding. For example, although Dr. Tepper initially testified that there was evidence to support the Section (e)(3) mitigator, he retracted that view on cross-examination. Similarly, there was no evidence in Daniels’s school records to suggest any significant mental health history that warranted, or required, further investigation. Instead, Daniels appeared to be a good student both academically and emotionally: he was a high school graduate and he attended a year of college. We are not persuaded that there is a reasonable probability that the jury, or any one juror, would have concluded that the evidence produced for the PCRA hearing, combined -with the mitigation already made available to the jury, warranted a finding that the (e)(2) mental health mitigator existed and,
Additionally, although Jacqueline Daniels’s testimony at the PCRA hearing offered greater insight into Daniels’s troubled childhood, the fact remains that similar evidence was already presented to the jury: Daniels’s great-grandmother testified that Daniels’s father was cruel and beat him. Of course, it is theoretically possible that a juror or two would have given the catchall mitigator some additional weight if Ms. Daniels had testified, but the question the Court must answer is whether the additional testimony by Jacqueline Daniels and Dr. Tepper was weighty enough to the point where there is a reasonable probability that one juror may have decided against the imposition of the death penalty.
Based on the record of the PCRA proceedings and the trial, we simply cannot conclude that such a reasonable probability existed. The aggravating circumstances demonstrated that Daniels was actively involved in a plan to kidnap a young man, not yet an adult, for ransom. The victim died as a result of the conduct of Daniels and his cohorts, but only after having been cruelly confined in the trunk of a car for twenty-four hours, tied up and with a sock stuffed in his mouth. Given the case in mitigation already presented to the jury emphasizing both Daniels’s troubled childhood as well as positive attributes and his religious conversion, and the substantial evidence in aggravation, we do not believe that the marginal additional mitigation evidence produced at the PCRA hearing was sufficient to establish a reasonable probability that the result of the penalty phase would have been different. Under these circumstances, we cannot conclude that the additional mitigating evidence undermines confidence in the jury’s verdict. The PCRA court’s summary conclusion respecting Strickland prejudice to the contrary cannot stand, and it is hereby reversed.
Y. DANIELS’S ADDITIONAL PENALTY PHASE ISSUES
Having concluded that the PCRA court’s award of a new penalty phase to Daniels on the mitigation evidence issue must
A.
In his cross-appeal penalty phase briefing, Daniels first argues that trial counsel should have objected to the trial court’s unconstitutionally vague torture instruction. Daniels argues that the Court has recognized that the torture aggravating circumstance is unconstitutionally vague absent an appropriate limiting instruction. According to Daniels, the definition of torture given by the trial court could apply to virtually any murder case and failed to narrow the class of persons eligible for the death penalty, in violation of the Eighth Amendment. Brief of Appellee Daniels at 62 (citing Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988)). Daniels contends that trial counsel had no reason for failing to object to the instruction and he further contends that he was prejudiced by the failure as the jury found the torture aggravator.
The Commonwealth briefly responds that the Court has repeatedly approved of materially identical torture instructions in other cases and rejected the argument that similar instructions are unconstitutionally vague. Thus, the Commonwealth concludes that trial counsel was not ineffective for failing to make a baseless challenge to the torture instruction.
The PCRA court held that prior case law established that a trial court must give a limiting instruction separating the intent to kill from the intent to torture. It then concluded that the instruction by the trial court in this case informed the jury that the infliction of pain must be more than simply the pain associated with murder when it stated that the infliction of pain must be “unnecessarily heinous, atrocious, or cruel.” Furthermore, the PCRA court believed that the trial court addressed the principle of separate intent by immediately explaining intent after giving the torture instruction.
Now, as to torture, torture is the intentional infliction of a considerable amount of pain and suffering on the victim which is unnecessarily heinous, atrocious or cruel manifesting exceptional depravity. Now, by “intent” is meant, a person intends a certain matter if he consciously does or intends to do a certain object, bring about a certain object. Now, intent may be shown by words or by acts or conduct of the parties involved.
N.T., 11/13/89, at 150. The trial court also instructed the jury that the Commonwealth had the burden of proving the aggravating circumstances beyond a reasonable doubt. Id. at 152.
In Pennsylvania, we have indeed generally defined torture as “the infliction of a considerable amount of pain and suffering on a victim which is unnecessarily heinous, atrocious, or cruel manifesting exceptional depravity.” Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728, 737 (1987). We further require a trial court to define torture for the jury when the torture aggravator is at issue “in order to channel the sentencer’s discretion by clear and objective standards that provide specific and detailed guidance that make the process for imposing a sentence of death rationally reviewable”; a jury cannot simply be directed to determine whether the victim was tortured without a definition of the concept. Commonwealth v. Stevens, 559 Pa. 171, 739 A.2d 507, 524 (1999); see also Nelson, 523 A.2d at 737; Commonwealth v. Wharton, 530 Pa. 127, 607 A.2d 710, 723 (1992).
The focus of Daniels’s argument is that the trial court supposedly provided part of the relevant instruction, but not all, since it failed to specifically inform the jury that in order to find the aggravator a defendant must have the specific intent to torture, which is distinct from the intent to kill. See Stevens, 739 A.2d at 524 (Commonwealth must show beyond reasonable doubt that defendant possessed an intent, separate from intent to kill, to inflict pain and suffering). Daniels cites Nelson for the proposition, a case which pre-dated his trial and which was cited with approval in Stevens.
The Court defined torture to the jury as follows: “One of them is the model Penal Code in which they say that the offense or murder committed by means of torture is designed for the defendant who causes a considerable amount of pain and that the language used for this particularly aggravating circumstance is the murder was especially heinous, atrocious, or cruel manifesting exceptional depravity. Also, another place that I felt may be appropriate in trying to define for you torture was in the American Law Reports. These reports stated that since murder is an intentional act, that many courts have determined, regarding murder by torture, a specific intention that the torture murderer has in committing the homicide. It has been held that this is an intention to inflict pain, suffering or both pain and suffering.”
495 A.2d at 197 n. 13. As against Daniels’s present argument, the instruction issued in this case was materially indistinguishable from the one given in Pursell. Furthermore, we have indicated more recently that the type of instruction given here was a proper statement of the law when it was given. See Commonwealth v. Brown, 567 Pa. 272, 786 A.2d 961, 966 (2001) (citing with approval instruction in Commonwealth v. Thomas, 522 Pa. 256, 561 A.2d 699, 709 (1989), which was similar to instruction given here). Viewed in its entirety and
B.
Daniels next contends that trial counsel was ineffective for failing to object to the trial court’s instruction regarding the witness elimination aggravator, per Section 9711(d)(5). Daniels contends that, on its face, the (d)(5) aggravator is applicable only to the killing of a prosecution witness in a pending proceeding. He finds support for this proposition in Commonwealth v. Crawley, 514 Pa. 539, 526 A.2d 334 (1987) and Commonwealth v. Caldwell, 516 Pa. 441, 532 A.2d 813 (1987). He acknowledges that the Court expanded its understanding of the aggravator in Commonwealth v. Appel, 517 Pa. 529, 539 A.2d 780 (1988), which was decided prior to his trial.
In Appel, the Court held that the (d)(5) aggravator could be applied to circumstances involving future criminal proceedings if there was direct evidence that the killing occurred to eliminate a potential witness. Nevertheless, according to Daniels, the (d)(5) aggravator has not been applied with consistency in Pennsylvania. See Brief of Appellee Daniels, at 65-66, citing to Commonwealth v. Marshall, 523 Pa. 556, 568 A.2d 590 (1989). Furthermore, Daniels argues that he lacked fair warning that this aggravator could be deemed applicable. Additionally, he contends that the trial court failed to provide the jury with the definition of “direct evidence” and also failed to instruct the jury that the aggravator must be found by proof beyond a reasonable doubt. Daniels notes that trial counsel could have objected to the instruction, pointing out that counsel for one of the co-defendants had raised the issue during the guilt phase. Furthermore, Daniels explains that appellate counsel challenged the evidence in support of the aggravator on direct appeal, but failed to raise a challenge to
The Commonwealth responds that the language of the statute is not so limiting, but applies to “any” grand jury or criminal proceeding. Furthermore, the Commonwealth argues that the Court’s Appel decision put Daniels on notice that the (d)(5) aggravator could apply to potential witnesses in future criminal proceedings, as long as it was supported by direct evidence. The Commonwealth also accurately notes that the trial court made clear that the aggravating circumstances had to be established by the Commonwealth beyond a reasonable doubt (citing N.T., 11/13/89, at 152). Additionally, the Commonwealth argues that the jury had been given the definitions of “direct evidence” and “circumstantial evidence” during the guilt phase jury instructions. Finally, the Commonwealth argues that the Court has consistently held that the (d)(5) aggravator can apply to potential witnesses since Appel, and stresses that the sole case cited by Daniels in fact applied the aggravator consistently with Appel.
The PCRA court concluded that this issue was barred because it was already litigated on direct appeal.
The trial court instructed the jury as to the killing of a prosecution witness aggravator as follows:
Now, whether or not under number five — the victim was a prosecution witness — it would depend on whether you find by direct evidence that the Defendant in effect, either/or both Defendants in effect brought about the death of Alexander Porter with the intent to prevent his being a witness against them in this case. They must do this by direct evidence and not circumstantial evidence.
N.T., 11/13/89, at 150.
The Appel Court explained the distinction between the circumstances in Crawley and Caldwell and Appel, stating that the Court had earlier “superimposed” a pending proceeding requirement onto the (d)(5) aggravator in order to limit the application of the aggravator to circumstances where the “requisite animus,” i.e., the intent to remove the victim as a
In this case, our analysis is limited to the propriety of the trial court’s instruction, as the sufficiency of the evidence supporting the aggravator was already finally litigated on direct appeal. See Daniels, 612 A.2d at 399-400. The trial court properly followed the holding in Appel by instructing the jury that the (d)(5) aggravator could only be found if it was supported by direct evidence, as opposed to circumstantial evidence. The instruction was a clear iteration of the recently decided Appel decision. Daniels’s argument that he lacked fair notice that the aggravator could be applied to him is meritless, as Appel was decided six months before the September 1988 murder of Alexander Porter. Additionally, as the Commonwealth notes, the jury was earlier instructed as to the definition of direct evidence, and was told that it was the Commonwealth’s burden to establish the aggravating circumstances beyond a reasonable doubt. In sum, Daniels has not proven counsel ineffective for failing to pursue this claim, and his derivative, layered claim of appellate counsel necessarily fails.
C.
Daniels next forwards a claim based on Commonwealth v. Lassiter, 554 Pa. 586, 722 A.2d 657 (1998) (plurality), a case decided nearly ten years after the trial in this case. Daniels argues that “all parties agree” that he did not personally inflict any gunshot wounds upon the victim. He explains that Lassiter was clear that the killing in the perpetration of a felony aggravator under Section 9711(d)(6) does not apply to
Daniels also contends that even if Lassiter reflected a change in the law, such a rule would not bar relief here because Attorney Drost testified that he discussed with Attorney Houston a theory that the (d)(6) aggravator could not apply to an accomplice, and yet Houston failed to object. Thus, Daniels says, trial counsel was put on notice of the viability of a challenge to the (d)(6) aggravator. Daniels then maintains that the prejudice arising from the failure to object to and negate the aggravator is self-evident. Finally, Daniels contends that appellate counsel was ineffective for failing to raise the record-based issue on direct appeal.
The Commonwealth forwards two primary arguments in response. First, the Commonwealth contends that there was evidence that Daniels was a principal in the murder and not merely an accomplice, citing as proof this Court’s opinion in the first collateral appeal, where we stated that “the jury could have found that both actors were principals based upon the evidence presented ... the evidence inculpated both men depending on whose version of the shooting the jury believed.” Daniels and Pelzer, 963 A.2d at 432, n. 17. Second, the Commonwealth notes that counsel’s effectiveness must be evaluated using the standards in effect at the time of trial. At the time of trial here, Lassiter had yet to be decided, and trial counsel may have concluded that any Lossiier-type objection
The PCRA court concluded that the ruling in Lassiter constituted a change in the law and that counsel cannot be ineffective for failing to predict that change. PCRA court opinion, at 21 (citing Spotz, 896 A.2d at 1238-39). Accordingly, the court determined that trial counsel was not ineffective for failing to object to the (d)(6) aggravator.
Although the members of the Court have not all been of one view on the issue, the PCRA court’s conclusion was consistent with this Court’s prevailing case law, concluding that Lassiter reflected a change in the law. See Commonwealth v. Cox, 603 Pa. 223, 983 A.2d 666, 702 (2009). However, the wrinkle here is the fact that Attorney Drost testified that he had a conversation with trial counsel in which he outlined a possible challenge to the (d)(6) aggravator. Nevertheless, even assuming that Drost’s conversation could be construed as enough to trigger an obligation on counsel’s part, the instruction that was actually given in this case raises no concern under Lassiter.
The Court has explained that Lassiter involved jury instructions related to the (d)(6) aggravator that were given in the passive voice, i.e., that the “killing was committed in the perpetration of a felony.” Commonwealth v. Rega, 620 Pa. 640, 70 A.3d 777, 793 (2013) (citation omitted). Such concerns are not raised, however, when the instruction tracks the language of the statute and advises the jury that the aggravator applies when the “defendant committed a killing while in the perpetration of a felony,” as the court has “conveyed the essential information in an understandable form.” Id.
In this case, the trial court quoted the language of the statute when instructing the jury with regard to the (d)(6) aggravator, stating that the aggravator applied when “[t]he
The Commonwealth, however, proffered its own version of the facts, providing the jury with its own theory of the case in which Daniels was a principal. As in Rega, the Commonwealth was entitled to rely on the strength of its own case in pursuing this aggravator. Additionally, the fact that the trial court gave the appropriate jury charge, requiring the jury to find that “the Defendant,” ie., Daniels, minimized any uncertainty. Id. at 794. The issue of trial counsel ineffectiveness is without merit and the layered claim of appellate counsel ineffectiveness necessarily fails.
D.
Daniels next contends that appellate counsel was ineffective for failing to raise a claim that he was entitled to a “life means life” instruction pursuant to Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) (plurality), a case decided after his trial. Daniels avers that the Commonwealth injected future dangerousness into the proceedings when it questioned him on cross-examination as to whether “you said on direct testimony something about wanting to go back out on the street. You still hope that you are going to go back out there on the street and you will do everything that you can to make sure you do, right?” N.T., 11/13/89, at 68. According to Daniels, this line of questioning implied that he would impose a threat upon release. Daniels
The Commonwealth responds that the brief exchange cited by Daniels did not amount to placing Daniels’s future dangerousness at issue. In any event, according to the Commonwealth, Simmons is inapplicable to this case, as it was decided nearly five years after the trial, it announced a new rule of law, and trial counsel cannot be held ineffective for failing to anticipate a change in the law.
The PCRA court concluded that the Commonwealth did not invoke Daniels’s future dangerousness by this brief exchange.
This Court has been clear that an ineffectiveness claim premised on Simmons will not be available to defendants whose trial was completed prior to the decision. Commonwealth v. Fletcher, 604 Pa. 493, 986 A.2d 759, 801 (2009); Commonwealth v. Ly, 602 Pa. 268, 980 A.2d 61, 97 (2009). Daniels attempts to avoid application of this principle by placing the ineffectiveness at the feet of appellate counsel, arguing that Simmons was decided and available during the pendency of his direct appeal. Even assuming that appellate counsel could have secured review of the issue via relaxed waiver, the claim would have failed because we agree with the Commonwealth and the PCRA court that the brief exchange did not implicate Daniels’s future dangerousness. Instead, when read in context, the question merely suggested that Daniels’s guilt phase testimony was inconsistent with his police statement, intimating that he would lie, i.e., “do everything” that he could to get back on the streets. Appellate counsel was not obliged to read the exchange out of context, or to torture the language of the exchange in order to manufacture an appellate issue. Accordingly, this claim of appellate counsel ineffectiveness fails.
E.
Daniels next argues that trial counsel was ineffective for failing to object to the joint penalty phase proceeding.
The Commonwealth responds that “individualized sentencing” does not mean that Daniels was entitled to a separate penalty phase proceeding. Instead, the term merely means that Daniels was entitled to a determination of his sentence based on his individual characteristics and the circumstances of the crime. In this case, Daniels and Pelzer presented separate penalty phase evidence and arguments. Additionally, appellees argued for the application of different mitigating circumstances and the trial court specifically instructed the jury that they had to make two distinct findings. The Commonwealth also asserts that alleged hostility between co-defendants does not require severance. Indeed, the Commonwealth argues that this Court has indicated that the fact that defendants have conflicting versions of the facts is a reason for, rather than against, a joint trial.
The PCRA court held that appellees were sentenced individually and both presented separate arguments and evidence. The court also indicated that different mitigation evidence was produced in each case and the trial court specifically instructed the jury to consider the sentence of each appellee separately.
We see no error in the PCRA court’s determination. The U.S. Supreme Court has broadly held that individualized sentencing is required in all capital cases in order to satisfy the Eighth Amendment. Lockett v. Ohio, 438 U.S. 586, 602, 605, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). The Court has further explained that individualized sentencing is satisfied when the jury is permitted to consider all of the relevant
In this case, appellees offered individual mitigating evidence. Daniels pursued four mitigating circumstances to the jury: his lack of prior criminal history, his mental capacity, his age at the time of the crime, and the catchall mitigating circumstance. Pelzer pursued four mitigating circumstances as well: his lack of prior criminal history, the fact that he was acting under extreme duress at the time of the crime, his age, and the catchall mitigator. Additionally, the trial court presented the jury with two separate sentencing forms and instructed the jury that it was obliged to “make two findings.” N.T., 11/13/89, at 156. Daniels’s preference for a separate sentencing proceeding is not the same as a right to such a process. In this case, he was accorded the individualized sentencing process that is required by the Eighth Amendment, and thus counsel cannot be deemed ineffective in failing to object to the joint proceeding. Moreover, and for similar reasons, Daniels has not demonstrated Strickland prejudice. Accordingly, this claim of trial counsel ineffectiveness fails, as does the derivative claim related to appellate counsel.
F.
Daniels next contends that trial counsel was ineffective for failing to object to the prosecutor’s inflammatory closing argu
The Commonwealth responds that a prosecutor in a capital murder case can be an advocate and may urge the jury to reject a defendant’s mitigation evidence in favor of imposing the death penalty. Furthermore, the Commonwealth contends that this Court has consistently rejected claims challenging the propriety of the prosecutor asking the jury to show a capital defendant the same mercy that he showed to his victim. The Commonwealth also contends that the prosecutor’s comment on Daniels’s “jailhouse conversion” was entirely appropriate given that the evidence suggested that the conversion occurred only after he was arrested and incarcerated for the instant murder.
The PCRA court concluded that the prosecutor was “within reasonable bounds,” as it is was within the scope of a prosecutor’s closing argument to question the applicability of mitigating circumstances. Similarly, the court concluded that the prosecutor’s mercy comment was merely oratorical flair and did not entitle Daniels to relief. See PCRA court Slip Op., at 16 (citing Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385, 415 (2003)).
The Court has reviewed the prosecutor’s closing argument in its entirety, and then focused on the select portions of the argument that Daniels specifically complains about. The argument directed the jury’s attention to the aggravating circumstances and argued why the mitigating circumstances should be rejected. The prosecutor urged the jury to view Daniels’s mitigation evidence with disfavor. This line of argument was entirely within the range of argument we have previously permitted.
The prosecutor then argued that the jury should not show appellees mercy, by stating that “this [was] not a case in which mercy should be shown____Why don’t you show them the same mercy that they showed Alexander Porter.” N.T., 11/13/89, at 123. The prosecutor continued by noting that appellees had taken everything important from the victim, “then when they are done with him they take him to the park,
In any event, Pelzer’s counsel objected and Daniels’s counsel later joined the objection. The trial court overruled the objection, stating that counsel would have the opportunity to respond. Daniels’s counsel in fact did respond to the prosecutor’s argument, urging the jury to exercise mercy because Daniels would be incarcerated for the remainder of his life, and Daniels’s religious conversion was of value to society. Id. at 141-14. On this record, Daniels’s claim of trial counsel ineffectiveness plainly fails and his derivative claim of appellate counsel necessarily fails.
VI. CUMULATION CLAIM
Finally, Daniels argues that the cumulative nature of the ineffectiveness claims he has raised prejudiced him, warranting a new trial.
This Court has recognized that if multiple instances of deficient performance are found, the assessment of Strickland prejudice may be properly premised upon cumulation. See Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523, 532 (2009). We have rejected two guilt phase claims on grounds of “no prejudice.” Notably, the Brady claim thus rejected
VII. MANDATE
For the foregoing reasons, the PCRA court’s order awarding Kevin Pelzer a new penalty phase hearing, but denying him guilt phase relief, is affirmed. The PCRA court’s order awarding Henry Daniels a new penalty phase hearing is reversed and his PCRA petition is hereby dismissed.
Jurisdiction in all four appeals is relinquished.
. Until 2002, this Court required new counsel to raise claims of previous counsel’s ineffectiveness at the first opportunity after new counsel was appointed, which was often on direct appeal. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). This rule was subsequently abrogated in Grant, which held that claims of ineffective assistance of counsel generally should be deferred until collateral review. 813 A.2d at 738 (overruling Hubbard); see also Commonwealth v. Pagan, 597 Pa. 69, 950 A.2d 270, 287 (2008). Thus, in direct appeals decided prior to Grant, such as these, new counsel on appeal would have been obligated to raise claims of trial counsel ineffectiveness or risk having them later be deemed waived for purposes of collateral review.
. McGill, in addition to addressing the circumstance of layered claims of ineffectiveness, also spoke to the prospect of associated remands in cases then pending in the appellate courts. These appeals were not then pending, and we look to the more recent pronouncement in Walker, discussed infra.
. The PCRA court obviously was mistaken to fault counsel for failing to “present” the pre-sentence investigation report to the jury, since the report did not come into existence until after the verdict. The presentence report was prepared by Dennis Martell and was dated December 11, 1989, while the pre-sentence mental health evaluation prepared by Lawrence Byrne, M.Ed., was dated November 20, 1989. Presumably, the PCRA court intended its citation to the pre-sentence report as corroboration that there was something to be found in a mental health diagnosis contemporaneous to the trial, and that the evidence in the school records should have triggered an inquiry by counsel along those lines.
. We stress that the evidentiary hearing was conducted before Judge Lineberger, and not Judge Temin. Judge Temin's opinion makes clear
. Trial counsel’s notes reflected that he contacted a man by the name of "Mr. Pelzer," who may have been Hilderbrand, while Hilderbrand testified that he did not remember being contacted by counsel. In any event, there was no indication why counsel did not call Hilderbrand at trial (assuming that he was the "Mr. Pelzer" that counsel contacted).
. The jury did not specifically enumerate the mitigating factor or factors that this juror considered to comprise the catchall circumstance.
. The issue concerning the sufficiency for the aggravators, on this record, was definitively resolved on the direct appeal reargument in Daniels by a 4-3 vote.
. There is no need to examine at length appellate counsel's performance on direct appeal in not raising this claim. The Commonwealth argues that this claim is defaulted because trial counsel's ineffectiveness could have been raised on direct appeal by new counsel. However, Pelzer’s appellate counsel testified at the PCRA hearing that he believed that he was limited to raising issues preserved on post-verdict motions. N.T., 5/9/02, at 57-59. At the time this direct capital appeal was litigated, this simply was not so. See, e.g., Commonwealth v. Grant; see also supra n. 1 (discussing Grant and prior law). In this circumstance, it is appropriate to examine the underlying claim of ineffectiveness on collateral review. Walker, 36 A.3d at 7-8 & n. 8; Commonwealth v. Ly, 602 Pa. 268, 980 A.2d 61, 101-02 (2009) (Castille, C.J., concurring).
. Dr. O'Brien testified on behalf of the Commonwealth at the PCRA hearing in both cases.
. Dr. Tepper diagnosed Daniels with mixed personality disorder and drug and alcohol dependency. As noted, there was no report from Dr. Tepper produced for trial and he did not testify at the penalty phase.
. We recognize that Mr. Justice Saylor has expressed a contrary view on this point. See Freeman, 827 A.2d at 418 (Saylor, J., concurring and dissenting).
. Pelzer raises a similar claim of cumulation, which would be relevant to assessing only guilt phase prejudice since we have affirmed the award of a new penalty phase. However, only Pelzer’s Brady claim related to the forensic report was resolved solely on grounds of an absence of prejudice, and thus, there are no claims to cumulate related to Pelzer.
. The Prothonotary of the Supreme Court is directed to transmit the complete record of Henry Daniels’ case to the Governor pursuant to 42 Pa.C.S. § 971 l(i).
Concurrence in Part
concurring and dissenting.
I join Parts I, II, and III of the majority opinion and, thus, in the affirmance of the denial of guilt-phase relief in both the Daniels and Pelzer appeals. I also join Part IV(A), which concerns the affirmance of penalty relief favorable to Pelzer, as well as Parts V(A) and (D). I respectfully dissent with regard to Part IV(B), which concerns the reversal of the PCRA court’s award of penalty relief to Daniels.
I have previously commented:
*284 The federal constitutional standard pertaining to claims of ineffective assistance of counsel places appellate courts in a difficult position where a trial attorney did not do his job. We are to essentially speculate whether each one (and every one) of twelve individuals, having twelve unique mindsets which we cannot know, would have supported a death sentence, had an appropriate presentation been made. See Wiggins v. Smith, 539 U.S. 510, 537, 123 S.Ct. 2527, 2543 [156 L.Ed.2d 471] (2003) (explaining that prejudice is assessed according to whether a single juror might have struck a different balance); accord 42 Pa.C.S. § 9711(c)(l)(iv). An appellate no-prejudice finding can mean that a capital defendant will never receive a single trial in which he is represented by competent counsel. Indeed, such a finding is tantamount to a determination that adequate representation is merely beside the point, since the defendant never stood a reasonable chance of avoiding a death verdict in any event. The decision is further complicated by the fact that juries do not return such verdicts in every capital case in which the defendant has committed a heinous murder, or even multiple killings.
I am most troubled by the speculativeness inherent in no-prejudice determinations, in view of the volume of cases in which we are being required to undertake them (due to a lack of preparedness on the part of members of the capital defense bar)----[Until the preparedness and other issues are addressed], I believe we should err on the side of providing defendants with one trial at which the defense is guided by a competent, prepared lawyer.
Commonwealth v. Koehler, 614 Pa. 159, 227-28, 36 A.3d 121, 162 (2012) (Saylor, J., concurring). I find that these remarks pertain equally here. Cf. Porter v. McCollum, 558 U.S. 30, 44, 130 S.Ct. 447, 455-56, 175 L.Ed.2d 398 (2009) (per curiam) (“We do not require a defendant to show ‘that counsel’s
Next, relative to Part V(B) of the majority opinion, while acknowledging that the Court has previously settled on an extension of the Section 9711(d)(5) aggravator to “potential” prosecution -witnesses, I have continuing reservations about construing aggravating circumstances more broadly than the plain language of the death-penalty statute will support. In this instance, the statute says “[t]he victim was a prosecution witness,” 42 Pa.C.S. § 9711(d)(5) (emphasis added), but the Court has extended these terms to “potential” -witnesses via an allusion to what was believed to be the underlying legislative intent. See Commonwealth v. Appel, 517 Pa. 529, 537 n. 2, 539 A.2d 780, 784 n. 2 (1988). This manner of analysis presents an example in which the Court simply has not applied the strict construction appropriate to penal statutes, see 1 Pa.C.S. § 1928(b)(1), or the narrowing construction to be implemented in relation to death-penalty statutes, see Commonwealth v. Stallworth, 566 Pa. 349, 373, 781 A.2d 110, 124 (2001) (“[I]n the context of a statute defining a category of persons against whom it is permissible to impose a sentence of death, such strict construction should militate in favor of the least inclusive interpretation.”) (citing Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983)). See generally Commonwealth v. Travaglia, 611 Pa. 481, 527, 28 A.3d 868, 896 (2011) (Saylor, J., concurring) (commenting on other instances in which a narrowing construction has not been maintained); Commonwealth v. Houser, 610 Pa. 264, 281-82, 18 A.3d 1128, 1138-39 (2011) (Saylor, J., concurring and dissenting) (same); Commonwealth v. Mitchell, 588 Pa. 19, 83-84, 902 A.2d 430, 469 (2006) (Saylor, J., concurring) (same); Commonwealth v. Robinson, 583 Pa. 358, 392-99, 877 A.2d 433, 453-57 (2005) (Saylor, J., concurring and dissenting).
Concerning Part V(E) of the majority opinion, I have reservations about the conduct of joint penalty proceedings because of the potential impact of antagonistic defenses and spillover prejudice to aggravators and mitigation. See, e.g., State v. Carr, 331 P.3d 544, 717-20 (Kan.2014) (disapproving the conduct of a joint penalty proceeding based on such concerns and awarding new, separate penalty hearings). In light of my conclusion that new penalty hearings are warranted for both appellees, I do not consider this question further here; however, as a supervisory matter, I would simply have required the conduct of separate, individualized proceedings on remand (had my position prevailed as to Daniels).
Finally, as to Part V(F), I appreciate the majority’s denotation of my continuing disapproval of the prosecutorial practice of urging sentencing jurors to show the same mercy to a capital defendant as was shown to the victim. See Majority Opinion, at 280 n. 11, 104 A.3d at 318 n. 11. My reasoning is based on the concern that such practice is fundamentally inconsistent with the plain terms of the governing statutory scheme, which is designed to permit the punishment of death only upon the rendering of reasoned moral judgments, not decisions made on the same lawless terms by which murders are committed. Accord Commonwealth v. Sneed, 616 Pa. 1, 38, 45 A.3d 1096, 1118 (2012) (Saylor, J., dissenting); cf. Commonwealth v. Spotz, 616 Pa. 164, 276, 47 A.3d 63, 131 (2012) (Saylor, J., concurring) (“In my view, justice would be better served, and protracted controversies more readily contained, if prosecutors would limit themselves more closely to the facts of the case in the context of the governing law.”) (citations omitted).
. In a responsive opinion in a previous case, I appended a ready example of the effective use of such evidence, developed upon the cross-examination of a Commonwealth mental-health expert. See Commonwealth v. Williams, 577 Pa. 473, 490-92, 846 A.2d 105, 116-17 (2004) (Saylor, J., concurring and dissenting). For instance, the forensic psychiatrist candidly acknowledged the profound psychological impact of childhood trauma and deprivation, in terms of fostering poor impulse control and lack of judgment, insight, and reasoning. See id. Although it may be observed that this sort of explanatory mitigation evidence may be viewed negatively by some jurors, it must also be borne in mind that the defense need only gain the support of one of twelve jurors to evade a death sentence. See Majority Opinion, at 254-57, 104 A.3d at 303-04; accord Wiggins v. Smith, 539 U.S. 510, 537, 123 S.Ct. 2527, 2543, 156 L.Ed.2d 471 (2003). It is thus my considered judgment that the use of this sort of explanatory mitigation evidence in capital sentencing proceedings merits careful consideration, particularly as an alternative to the sorts of generic arguments which Daniels’ counsel pursued as components of his presentation. See generally Commonwealth v. Sepulveda, 618 Pa. 262, 343, 55 A.3d 1108, 1156 (2012) (Saylor, J., concurring) ("As of the time of Appellant’s trial ..., it was well understood in the training readily available to capital defense attorneys that potential mental-health issues are essentially ubiquitous in capital cases, and that childhood abuse and deprivations may substantially impact personality, cognition, and behavior.”); Commonwealth v. Washington, 592 Pa. 698, 755 n. 4, 927 A.2d 586, 620 n. 4 (2007) (Saylor, J., dissenting) (addressing a "fairly widespread consensus that the sort of mental-health and explanatory-type life-history mitigation evidence presently proffered by Appellant [at the post-conviction stage] can serve as effective mitigation”); Commonwealth v. Brown, 582 Pa. 461, 521-22, 872 A.2d 1139, 1174 (2005) (Saylor, J., dissenting) (discussing the difference between mitigating evidence which is explanatory versus that which only attempts to humanize the defendant with jurors).
. As the appellee develops, counsel’s failures in the above respects facilitated the prosecutor’s argument, as follows:
Now, the last mitigating factor that the defense is going to argue to you is any other evidence of mitigation concerning the character and record of the Defendant and the circumstances of his offense....*284 What is there about Henry Daniel’s record that is in mitigation? Nothing. He's got a robbery conviction. What other evidence is there? The only other evidence you know anything about is the possibility that he may have gotten religion.
N.T., Nov. 13, 1989, at 122.
. I do not make these points to be obstreperous. My concern is that each accretion away from the plain language of a penal statute, ostensibly narrowly construed, creates another layer of uncertainty as to the actual parameters of the interpretive judicial review, in the death-
The same is true for aggravation when “[t]he victim was a prosecution witness.” 42 Pa.C.S. § 9711(d)(5). A strict or narrow interpretation of such terms obviously would require a relevant prosecution to have preceded the killing.
Under the sort of analysis employed in Balter and in Appel, the field appears to be wide open for judicial, policy-based extensions of the reach of the death-penalty statute. However, the governing federal constitutional overlay and rules of construction clearly delineated by the Legislature, as discussed above, forbid such extensions.
Accordingly, it is my considered perspective that retrenchment is needed, defining the reach of the death-penalty statute according to its own terms, narrowly construed.