*1 ORDER PER CURIAM. November, 2014, the of Order NOW, day 19th of this
AND AFFIRMED. hereby Court the Commonwealth 104A.3d 267 Pennsylvania, Appellant of COMMONWEALTH
v. DANIELS, Appellee. Henry Appellee Pennsylvania, Commonwealth v. Daniels, Appellant.
Henry Appellant Pennsylvania, Commonwealth v. Pelzer, Appellee.
Kevin Pennsylvania, Appellee Commonwealth
v. Pelzer, Appellant. Kevin Pennsylvania. Court of Supreme 12, 2013. Feb. Submitted 30, 2014. Oct. Decided *12 Kaufman, Jr., Max Hugh Esq., Cooper Esq., J. Burns Office, PA Zapp, Esq., Philadelphia Attorney’s Amy District General, of Pennsyl- for Commonwealth Attorney Office vania. Guilds, D. McKinney Ryan
Paul M. & George, Esq., George, LLP, Rosenfeld, Arnold Porter for Esq., & Esq., Sionne C. Henry Daniels. Community Defender Lawry,
Matthew Federal Esq., C. Lev, PA, Brian Defender Esq., Dist. of Ofc. East. Stuart Philadelphia, Association for Kevin Pelzer. EAKIN, BAER, TODD, C.J., SAYLOR,
CASTILLE, STEVENS, JJ.
OPINION Chief Justice CASTILLE. Hen-
These involve co-defendants capital cross-appeals twin (“Daniels” “Pelzer,” or Daniels and Kevin Pelzer ry *13 208
collectively “appellees”) and
a continuation of their
represent
challenges
first collateral
to their convictions
the Post
under
(“PCRA”),
§§
Relief
By
Conviction
Act
Pa.C.S.
9541-9546.
23, 2009,
filed on
Opinion
January
this Court vacated the
25,
order,
PCRA court’s March
which had granted appel-
lees a new trial. The
reviewed three
of trial
Court
claims
ineffectiveness,
claims,
counsel
denied
all
relief on
three
remanded the case to the
preparation
PCRA court for the
of
an
opinion addressing
appellees’
remainder of
claims.
Pelzer,
1,
Commonwealth v. Daniels and
600 Pa.
The Commonwealth appeals grant penalty from the phase case, relief in each while in appellees, separate cross-appeals, seek review of additional issues which the upon PCRA denied relief. For the below, reasons set forth we affirm the Pelzer, order of the PCRA court as it relates to Kevin but Thus, reverse the order as it relates Henry Daniels. Pelzer guilt relief, is denied phase but the award of a penalty new affirmed, phase hearing to him is and Daniels’s petition PCRA is dismissed in its entirety.
The facts and procedural history are not
at length
recounted
that a full
given
history of the case was set forth in our initial
Pelzer,
review of these collateral
in
proceedings Daniels and
and in the direct appeal opinions reported at Commonwealth
Daniels,
(1992)
v.
531 Pa.
Following hearing, jury a found capital penalty mitigating and two circum- aggravating four circumstances further regard appellee with to each and found stances the cir- aggravating outweighed mitigating circumstances cumstances; at jury fixed the murder accordingly, penalty 9711(c)(l)(iv). § 42 The for each See Pa.C.S. appellee. death of death on Novem- sentences formally imposed trial 23,1990, each 14,1989. trial court sentenced On April ber twenty-five an term of to to consecutive appellee aggregate, Supreme crimes. The prison remaining fifty years Dan- appeal. sentences of death on direct affirmed the Court Pelzer, Daniels iels, 397-98; 612 A.2d 410. 612 A.2d at reconsideration, granted. Subsequently, which was filed for sentence, this time judgment again the Court affirmed Daniels, v. 537 Pa. 4-3 Commonwealth majority vote. by curiam). (1994) 464, (per A.2d and new timely pro petitions se filed PCRA Appellees peti- and filed amended appearances entered their counsel tions, by many supplemental petitions. which were followed A. the Honorable petitions assigned were James The PCRA longer sitting trial was no Lineberger, judge because the bench, togeth- cases Lineberger considered Judge er.
The PCRA court held a hearing at which it
reviewed
twenty-one collective claims
submitted
appellees.
court granted
evidentiary
an
hearing on seven claims and
granted the Commonwealth’s Motion to Dismiss the remaining
claims. The seven issues to be considered at
evidentiary
(1)
were:
trial
hearing
counsel ineffectiveness for
failing
object to
(2)
the trial court’s instruction on accomplice liability,
trial counsel ineffectiveness for
failing
adequately investi
(3)
gate
present
death,
evidence on the cause of
challenge
79, 106
selection
under Batson Kentucky,
v.
476 U.S.
(4)
1712,
(1986),
S.Ct.
After holding hearings
on these
claims December of
*15
May
and January of
the PCRA court granted
new trials based on the guilt phase claims that trial counsel
(1)
were ineffective
object
for
failing
to the trial court’s
(2)
instruction on accomplice liability, and
failing to present
evidence disputing the cause of death. The PCRA court also
claim,
addressed the
relief;
Batson
but denied
the court did
provide
a reasoned analysis of the myriad other claims.
The parties filed cross-appeals after the
court
PCRA
ruled
its order was final and appealable. See Daniels and
Pelzer,
Finally, appellees court, addressed were not by dismissed the PCRA though or opinion merits either in its court on the the PCRA example, opinion, For in its on record. elsewhere raised other appellees acknowledged court PCRA of the penalty phase in connection with the claims of error were rendered moot trial, stated that those claims but trial, and thus a new grant of its decision because review, the prospect appellate dismissed them. Given review, cases capital PCRA courts piecemeal and to avoid In light address all issues. thorough should be and should existing grant court’s disagreement of our with PCRA for court to relief, is to remand the PCRA proper course claims. these address addition, basis for court failed explain
In PCRA affecting many other claims appellees’ its determination the PCRA were meritless. Because of phase the guilt failure, the denial of supporting we no rationale court’s meaningful cannot remaining claims and conduct appellees’ circumstances, re- we will review. Under such appellate opinion an matter to the to -write mand the PCRA ... Accord- of the claims. addressing petitioner’s all PCRA furnish to the PCRA court to we remand this matter ingly, by appel- claims raised remaining opinion written relief, including petitions post-conviction in their for lees hearing. it dismissed previously claims that without those material of disputed claims resolution any requiring As to findings factual facts, specific court should include credibility judgments. express omitted). (citations Appellees’ Applications
Id. *16 were denied. Reargument Carolyn remand, case Honorable assigned
On was serv- Lineberger longer was no Judge Temin because Engel December hearings Temin between ing. Judge held several 10, 26, 2011, issues to determine which August 2010 and whether parties disputed The remained to be addressed. on the re- Judge Lineberger had dismissed merits four maining encompassed grant evidentiary claims of an The that the hearing. Commonwealth asserted claims were meritless, dismissed as appellees while asserted that dismissal premised upon Judge ultimately mootness. Temin con- that Judge Lineberger’s opinion “definitely cluded June 2004 moot,” states that the issues were as remaining dismissed thus she reconsidered the claims “ab initio.” PCRA court 11/22/11, Slip Op., ultimately at 4. The court addressed seven claims, claims, guilt phase seven and a cumula- penalty phase claim, tive prejudice concluding that trial counsel for each appellee were ineffective for failing investigate present client, mitigation additional evidence to their but specific that appellees were not entitled to relief on their remaining claims. Accordingly, the each appellee PCRA awarded a new penalty phase hearing. These twin followed. cross-appeals
I. PRELIMINARY PROCEDURAL ISSUE
The
first
parties
dispute
propriety
of the succes
sor PCRA court’s decision to consider claims on remand anew.
argues
Commonwealth
Temin
Judge
had no authori
ty to vacate the death sentences because in
so she
doing
action,
overruled Judge Lineberger’s prior dismissal. That
alleges,
Commonwealth
violated Pa.R.A.P.
which
provides that the lower court
proceed
must
in accordance with
judgment
remand,
or order
appellate
of the
court on
as
jurisdiction rule,
well as the coordinate
which
provides
judges
sitting
the same court in the same case should not
overrule each other’s decisions. The Commonwealth contends
narrow,
this Court’s remand order was
merely directing
the PCRA court to produce a written
on the
opinion
remaining
dismissed,
issues it had
Judge
Temin exceeded that
mandate when
granted
she
penalty phase relief. Respecting
jurisdiction,
coordinate
the Commonwealth
posits
Judge
Lineberger
specifically rejected appellees’ mitigation-based
claim
ineffectiveness
on the merits
during March
PCRA
and then
hearing
memorialized the decision in an order
Commonwealth,
dated the same day. According to the
*17
Temin
over-
jurisdiction
Judge
rule
from
precluded
coordinate
judge.
merits
a fellow
the
determination of
PCRA
ruling
argues
Judge Lineberger’s
further
that
The Commonwealth
the
he
which
that
claims
did
June 2004 written
stated
opinion,
“moot,”
in
were
of
part
not address
the opinion
Temin should not have
appeal,
Judge
and therefore
record
its
whether she could
determining
considered
contents
the merits “ab initio.” The Commonwealth
concludes
address
to
authority
go
“because the
court lacked
that
PCRA
and
this
narrow remand order
overrule
beyond
Court’s
jurisdiction, the
judge
of a
of coordinate
prior binding decision
court’s ultra vires award
phase hearing
of a
penalty
new
Commonwealth, at 26.
Principal
should be reversed.”
Brief of
Line-
responds
opinion, Judge
Pelzer
the June 2004
issues
appellees’ penalty phase
stated that he deemed
berger
a
because
his determination that
new trial
“moot”
of
6/29/2004,
warranted. See
12. Pel-
Slip Op.,
at
PCRA
recognized
the claims were
zer adds
this Court
above).
(quoted
in our
dismissed as moot
remand directive
Pelzer,
According
specifically
the Court remanded
case
by
certain
remained unaddressed
the PCRA
because
claims
follows,
jurisdiction
coordinate
says,
court.
It
Pelzer
that the
Line-
by Judge
Judge
was not violated
Temin because
rule
claims.
remaining
did not
the merits of the
berger
decide
further
that the cases cited
the Common-
Pelzer
contends
opin-
support
argument
Judge Lineberger’s
wealth to
its
they
record
because
part
inapplicable
ion is not
of the
are
in an
cannot
opinion
that facts stated
proposition
stand for
the existence
support
the lack of record evidence
overcome
facts,
here. Daniels’s
of those
a
not at issue
proposition
largely echo those
Pelzer.
arguments
here are not
even aside from
optimal,
The circumstances
original
judge
conduct
unavailability
PCRA
capital
too often seen
This Court has
proceeding.
remand
below,
with multitude
matters
the court
faced
where
PCRA
two,
amendments,
or
addresses
claim
prolix
of claims
relief,
duty
fails to
its
to address
grants
discharge
then
claims,
all,
a circumstance
fully,
remaining
to address
or
review,
piecemeal
multiple
that can lead to
appeals
this
Court,
See,
accompanying delay.
e.g.,
Commonwealth v.
(2006)
Sneed,
(reversing
587 Pa.
In the original judge this PCRA conflict gave signals, claims, as he ing actually appellees’ dismissed other a signaling disposition appealable merits that allowed for orders, here, and further as suggested, relevant that he was by not necessarily convinced the ineffectiveness respecting claim, mitigation suggested but then in his opinion that the dismissal was on mootness The of grounds. suggestion moot was plainly misguided light ness of this repeated Court’s insistence on a comprehensive approach petitions. to PCRA A capital petitioner’s PCRA claims should not be deemed by “moot” the upon trial court based a determination merit; claim or two possesses any finding of mootness would depend upon this Court’s of any ensuing determination Com matter, monwealth’s appeal. As an institutional and as a judicial of matter economy, mootness is more properly this to Court determine in capital proceedings. PCRA If a single (as here) collateral both issue is contested of deemed such importance as to warrant immediate interlocutory review in context, the PCRA court the PCRA court can avail itself of the issue certification process, Pa.R.A.P. 312 (interlocutory But, appeals permission). a PCRA trial court should not invoke “mootness” avoid the task of deciding the entire case before it so ready, as to make for a comprehensive, timely appeal. This single imperative just a matter sparing of the parties and this Court of burden multiple, “ping- appeals prospect happened it also avoids ponging” but —as longer no available to judge being preside here —of the PCRA remand. any over interpretation Judge over the of parties’ dispute proper ultimately claims is of
Lineberger’s handling remaining if of this Court. Even appellate little moment task it clear he was Lineberger had made Judge perfectly claim, fact every conclusion as to rendering merits remand. The hardly purpose imped- advance the of our would meaningful any review was absence appellate iment claim re- why any particular being expression reasoned claims jected. appellees’ denied most of Judge Lineberger N.T., 2/2/2000, 80-89. evidentiary hearing. without an See claims, hearings specific He then held related multiple subject claims that were including guilt phase both the and the claim which prior appeal penalty phase upon collateral Line- ultimately granted Judge Temin relief. When Judge claims, guilt phase relief on two berger granted stated he “would assume all other claims prosecutor Lineberger saying “No. What I’m Judge replied, are denied.” *19 this. I down the list of claims on there.... you, go to is didn’t at were not trouble me Some of those issues that raised did all____” N.T., 1/29/03, But, identify 11. the court did not at they or the he believed were these claims articulate reasons 5, Line- hearing, Judge a March troubling. During not rule merits of penalty reluctant to on the the berger appeared fully he had not considered them. See phase issues because 3/5/03, 5, (“See, at moment position at I’m in a this 12-15 the concerning I the issues raised really give where did not they might the penalty phase probably consideration ”). March the Ultimately, deserved.... on legally mitigating relief on the evidence appeared deny merits, kind again any on the but of reasoned claims without manner tied to equivocal hope in an expression, “academic” his would be rendered penalty phase issues this, I what I’m is guess saying of new granting “[S]o trials: of the the conduct gentlemen, opinion in this Court’s Bailey type presentation were not an F. Lee lawyers Houston, but in it does not warrant another part my opinion penalty phase should the Commonwealth overcome the thresh- appeal old on its of this Court’s decision on the new trial. 3/25/03, N.T., Hopefully question will be academic.” at 14. The court’s reference to in its subsequent opinion mootness seems to continue its equivocation. equivocal
What is not is that the initial PCRA memo- judge findings rialized no of facts or conclusions of law as to specific dismissed, the various he claims and he offered no reasoned claims; explanation any as to of the an offhand reference to F. Lee Attorney Bailey helpful meaningful appellate review. left nothing We are with of substance from Judge review, Lineberger to of whether the in- irrespective judge circumstances, to engage tended the merits. In these Judge Temin, tasked with this providing Court with reasoned claims, analysis myriad of the can remaining hardly be faulted for proceeding analyze the claims de novo: there was nothing to, material for Judge Temin to defer and she was no Court, before, better off than this when appeal was here (or try to fathom the grounds Judge Lineberger’s decisions nondecisions). Our remand order did not cir- contemplate a cumstance where judge who had failed to fully discharge duty the first instance would be complete unavailable to Hence, upon task remand. least these admittedly circumstances, unique we see no error in the judge to whom anew, case was reassigned examining the merits so as to this provide Court with the explication necessary for us to Thus, our discharge appellate task. we will proceed to the merits.
II. REVIEW STANDARDS court, In reviewing rulings of a PCRA we examine whether the PCRA court’s determination “is supported by *20 record and free of legal error.” Commonwealth v. Rainey, 67, (2007). 215, 593 Pa. 928 A.2d 223 In order to be eligible relief, for PCRA a must petitioner by establish a preponder ance of the evidence that the conviction or sentence resulted from one or more of the enumerated circumstances found in
217
9543(a)(2),
of error has
allegation
§
and that
42 Pa.C.S.
9543(a)(3). A
Id.
§
waived.
previously litigated
not been
or
court in
litigated
highest appellate
is
if the
previously
claim
have had review as a matter of
which the
could
petitioner
9544(a)(2).
Id.
§
has
on the merits of the issue.
right
ruled
“if the
could have raised it
allegation
petitioner
An
is waived
trial,
trial,
or in a prior
failed
so before
at
on appeal
but
to do
9544(b).
Id.
§
postconviction proceeding.”
state
majority
The
claims sound
ineffec
appellees’
tive assistance of counsel under
Sixth Amendment.
has
is a
Supreme
strong
Court
stressed
there
U.S.
effective,
that counsel was
and the burden of
presumption
See
with
defendant.
overcoming
presumption
rests
—
Titlow,
17,
Burt v.
U.S. —,
10,
187
134 S.Ct.
L.Ed.2d
v.
(2013);
668, 690,
Strickland
104
Washington,
348
466 U.S.
2052,
(1984).
relief,
wealth v.
624 Pa.
84 A.3d
312
—
omitted);
Alabama,
see
—,
also Hinton v.
U.S.
134
1081,
(2014) (“When
1089,
S.Ct.
Both Daniels and Pelzer were represented by new lawyers
on direct appeal, and those direct appeals were litigated
before this
Grant,
Court’s decision in Commonwealth v.
572
48,
(2002),
Pa.
denied,
Recognizing
dynamism that has continued to be evident
in this
area of the law since
McGill,2
Grant
this
Court
2002,
1. Until
required
this Court
new
previ-
counsel to raise claims of
ous
opportunity
counsel’s ineffectiveness at the first
after new counsel
appointed,
which was often
appeal.
on direct
Commonwealth v.
Hubbard,
259,
(1977).
472 Pa.
Thus, case, any in secure relief on appellees this for to claim, as must elements they establish Strickland’s particular To the extent that this trial and counsel. appellate both claims of trial underlying alleged discusses Opinion appellees’ ineffectiveness, we do purely error or trial counsel so and cognizable of derivative assessing appellees’ purposes ineffectiveness, in particular, claims of counsel appellate Walker-style required. whether a remand assess III. GUILT PHASE ISSUES subject that are phase first claims guilt We address since offer the of they prospect appellees’ cross-appeals, of relief. greatest McGill, addressing layered claims in the circumstance
2. addition ineffectiveness, in spoke prospect to the of associated remands also appeals appellate These were not pending then in the courts. cases pronouncement in pending, to the more recent then and we look Walker, discussed infra.
A. that the Appellees allege Commonwealth failed disclose in exculpatory evidence violation of v. Brady Maryland, 373 1194, 10 (1963), U.S. 83 S.Ct. L.Ed.2d 215 three identifying items of exculpatory evidence they say were withheld from First, them. cite a they “body receiving prepared by record” examiner, the medical which indicated that Alexander Porter had died or nine “eight hours the gunshots were fired.” before Brief of Daniels at 30 (original emphasis). aver Appellees this document supports theory that Porter in died the trunk Second, of the car while they were sleeping. appellees cite witnesses’ statements that they heard in gunshots park area where the body victim’s was found between 11 p.m. and 1 a.m. on the night Third, the murder. appellees cite a forensic report stating that no bloodstains were found their vehicle; appellees say this report was exculpatory because it proved falsity of a police officer’s statement at trial that blood was found the vehicle.
According to appellees, collective import of this withheld information was significant because it refuted the Common- *23 wealth’s trial theory, which was that the victim was shot and killed at park. Appellees say the evidence tended to support Judge belief, Lineberger’s in granting guilt phase relief, that the victim was by dead the time he 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 by dead the time they arrived at the park. Proof that the victim was already dead when Pelzer him, aver, shot appellees would undermine the Common- proof wealth’s 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 objection defense to the trial court’s instruction that specific a intent to kill could be inferred from the use of a deadly a weapon upon part vital of the victim’s body. their acknowledge appeals initial collateral
Appellees trial alleged a central issue related to counsels’ ineffec- posed to contest the cause of death. Court failing tiveness rejected appellees the issue on the basis that could demon- surrounding because the entire circumstances prejudice strate victim, then holding of the kidnapping binding prolonged period, appellees’ him in the trunk for a established Pelzer, intent to kill. See Daniels A.2d at 428 specific (“To suggest the victim’s death was the result of an less something or was the result of than ‘accidental act’ may he of asphyxia- intentional conduct because have died than by appellees by strangulation tion—caused or —rather by appellees wounds—also to acknowl- gunshot inflicted —fails surrounding controlled the circumstances edge appellees his death and that those circumstances every step way to a supported finding beyond a of an intent kill reason- fully doubt.”). able attempt relitigate ap next the initial PCRA
Appellees
They
collaterally
argue
this Court’s decision.
peals,
attacking
reasoning
that the Court’s
was flawed because the Common
caused the
theory
gunshots
wealth’s
at trial was that
thus,
believe,
death;
they
a
of first-degree
victim’s
verdict
of a
that the victim
only
way
finding
murder was
possible by
note that the
multiple
was killed
gunshots. Appellees
cause of death
jury
trial court declined to instruct
on a
shooting,
strangulation
than
as
or suffocation.
other
such
contend that this Court’s
what
Appellees
explication
then
had
theory
if a different
been
jury might
found
Strickland
first
discussing
prejudice
on the
collat
pursued —in
right
Amendment
appeals
eral
their Sixth
—violated
trial. A Strickland prejudice
analysis, according
appellees,
only
the trial
by requirement
contemplate
is constrained
*24
proceed
“speculative”
occurred and cannot
on a
actually
theory of the case not
the Commonwealth.
actually pursued
v.
33-35,
Smith
See
discussing
Brief of
Daniels at
Appellee
—
Cain,
(2012);
U.S. —,
627, 181
571
L.Ed.2d
S.Ct.
U.S.,
222, 100
Chiarella v.
445 U.S.
S.Ct.
The Commonwealth responds that the witnesses’s state- ments about hearing gunshots were not favorable to appellees in Brady sense and appellees cannot establish that they prejudiced. were argues Commonwealth the evi- dence at merely best corroborated the Commonwealth’s alle- gation that shot appellees the victim. The Commonwealth notes that this aural evidence certainly does not address whether the victim died at appellees’ hands prior arriving at the park, which is the point relevant to appellees’ contention. The Commonwealth also avers that appellees did not establish withheld, that the evidence was since Pelzer’s trial counsel’s testimony on the point equivocal Finally, best. Commonwealth argues that any prejudice argument is fore- closed by the Court’s 2009 decision relief denying on the cause claim, of death which theory is the this evidence was relevant to.
The Commonwealth then argues that the remaining two Brady respecting body receiving record and the claims— forensic report waived because were not they raised until —are after this Court remanded the appeals for the PCRA already address existing claims. Alternatively, the Common- wealth contends that the issues are baseless. The Common- wealth 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 Com- monwealth then argues the forensic report no (showing blood) only related to the passenger compartment of the vehicle and did not test items the trunk. For all of these reasons, the Commonwealth concludes that appellees’ Brady claims fail.
In further responses, appellees largely reiterate al- points made, ready but two points First, bear further mention. regarding witnesses’ statements concerning hearing gun- shots, appellees say the evidence was exculpatory because it was relevant to whether the victim was alive when appellees Second, shot him. waiver, related to the question
223 report that forensic at- Daniels contends the was appellee petition, to his amended and further tached 2000 PCRA body that the record respecting receiving the claim argues Reply claim. Brief of “existing” Brady was of his part 9. Daniels at Appellee Brady
The found that the issue from deriving PCRA court in fact not raised the initial body receiving the record was The added petitions. or PCRA PCRA court supplemental Brady claims were without merit because the issues that death, and to the manner of the victim’s arguments related death, relating previously to the manner of were addressed rejected appeals. this on the first collateral by and Court claim,
To on a the defendant must Brady succeed (1) by prosecution; that: was suppressed show evidence (2) evidence, or was impeaching, whether exculpatory (3) defendant; A and resulted. prejudice favorable violation evidence is Brady only suppressed exists where i.e., there is guilt material to or where a reason punishment, disclosed, that, been had the evidence probability able different. proceeding result of the would have been Common (2008). Tedford, v. Pa. A.2d 30 wealth 960 Taking concerning gunshots the witnesses’ statements first, appellees that agree we with the Commonwealth materiality, not demonstrated or even statements The at trial theory favorable to them. Commonwealth’s were by after appellees being was that the victim was shot bound car, confined in the trunk of the which was gagged the stand (appellee admitted either on appellees fact Daniels) Brady police. alleged or their statements to does undermine the position evidence Commonwealth’s by gunshots. Additionally, appel victim killed that the was trial claim the notion that Brady depends upon accepting lees’ obliged theory was constitutionally pursue counsel shot him. That victim was at the time appellees dead rejected, raised argument prejudice Strickland Pelzer, Daniels and on the initial PCRA grounds, appeals. issue, which is an A.2d at 428. will not reconsider We indispensable to the predicate Brady current claim related to the witnesses’ statements.
Second, the
court correctly
PCRA
determined that
the Brady claim related to the body receiving record was
waived, as it was
prior
not raised
to the remand. This Court
explicitly
subject
limited the
matter of the remand to the
remaining issues already
raised
we
appellees;
neither
invited nor authorized appellees to raise additional collateral
*26
claims years after
expiration
the PCRA time-bar. Daniels
Pelzer,
Thus,
However, the Commonwealth is incorrect Brady issue related to the forensic report was not raised prior to the remand. Supplemental See Motion for Post-Conviction Relief, 12/22/00, Collateral at 6-10. The claim nonetheless fails for the same reason as the claim related to the wit nesses’s statements: the materiality of the report depends upon pursued as an ineffectiveness claim on the claim— initial collateral appeals counsel were obliged argue —that that the victim was dead at the time appellees shot him. That predicate theory rejected Court, was by this on grounds that appellees failed to show Strickland prejudice. Further evi dence supporting the same theory does not alter the Strick land prejudice assessment.
Finally, we address Daniels’s attack upon the Court’s assessment of Strickland prejudice on the prior ap peal, 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 decision, our prior and is not an available issue on this appeal, involving event, distinct claims. In any because ver sions of this subargument are raised by Daniels respecting issues, with the why disagree we will we multiple explain assessment is so narrow. notion that the Strickland prejudice of counsel ineffectiveness be requires claims Strickland a that counsel effec- strong presumption with approached tive, assessment prejudice requires and the Strickland make the rea- judgments essentially predictions — —about have the fact finder would decid- probabilities sonable what course had not been trial particular pursued by ed if a had or differently. counsel, i.e., tried if the case had been Under Strickland, burden to show a reasonable the defendant has the proceeding of the would have outcome probability here, respecting guilt been more favorable to defense— of something Daniels would have been convicted phase —that neces- first-degree less than murder. Such determination whole, the trial as a sarily requires an assessment of evidence on collateral attack. along proffered measured with what is in such engages This Court often Strickland assess so, doing our In we part ments as review. jurisprudential the task not to various identify hindsight appreciate ie., this, could have done or he scenarios: counsel “gotcha” Indeed, Supreme done Court should that. U.S. *27 right to counsel emphasized has Amendment Sixth trial, fair vacuum, not in a exists ensure a a does exist but Fretwell, whose is Lockhart v. 506 trial result reliable. U.S. 838, 122 (1993); Strickland, 364, 368-69, 113 L.Ed.2d 180 S.Ct. Cronic, 2052; v. 466 U.S. 104 S.Ct. see also U.S. (1984) (“[T]he 648, 658, 104 S.Ct. 80 L.Ed.2d U.S. to the of counsel is not for recognized effective assistance right it sake, ability own but because of the effect has on the its a trial. some effect of the accused to receive fair Absent reliability on the trial challenged process, conduct implicated.”). not guarantee generally Sixth Amendment attack at a The fact that the defendant on collateral looks trial can produces theory by fixed record and a which counsel assailed for made Common failing parry point be have not mean the Commonwealth would wealth does recourse, left the available evidence. Our been without under totality reviewed the of the prior appeals examination on trial evidence produced respecting appellees’ manifested inten- kill, tion to properly assessed that evidence in determining whether there was a reasonable probability appellees’ new, collateral theory theory subject itself to Common- —a rebuttal, wealth response important it is to remember —if pursued, would led to a different verdict. appel- Given lees’ extended course of conduct reflected in the trial record here, concluded, we the course proposed by appellees collateral attack not taken by counsel did not offer a reason- able probability of result other than a verdict of first-degree murder. The fairness of the focus proceeding required under Strickland works two ways; and final are judgments upset by courts employing artificially blinkered views of the fairness of the initial trial. reasons,
For the foregoing appellees’ Brady claims do not entitle either to relief.
B. In another claim relating their core complaint that their trial counsel were ineffective for failing to better dispute death, the cause of appellees next layered raise a ineffective ness claim from deriving object counsels’ failure to to the court’s guilt phase jury instructions. Appellees say that those instructions fostered an presentation unbalanced of the specif ic intent issue and encouraged jury to presume they had an intent to kill from their act of shooting the victim. Related claim, to this appellees separately aver that trial counsel were ineffective for failing request a mistake of fact jury instruc tion.
Thus, complains Pelzer the trial court focused the jury’s attention on the fact that the victim had been shot without also directing that it had to believe that the victim was alive at the time he was shot 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 *28 the inference arising from the use of a deadly weapon on a vital of the part victim’s Pelzer body. adds that the trial did not make any reference to the evidence of strangulation as or the defense claim that cause of death reference possible a was dead at the time he was shot. Pelzer already victim the objected to these continues that trial counsel should which, to the says, present he failed “unbalanced” instructions he was to the He also contends that jury. prejudiced defense was as was at question, the of death in there because cause believed the victim was appellees least some evidence him to they before shot make sure. dead have requested then that trial counsel should argues Pelzer i.e., instruction, of instruction that a mistake a mistake fact an fide exists if defendant had a reasonable and bona of fact him, he already that the victim was dead when shot belief of an intent to may negate a mistake the inference that such was sufficient evidence to such says require kill. Pelzer there instruction, as citing police proof an statement to Brief was dead to the prior shooting. he believed victim (defense § citing of Appellee of Pelzer at 18 Pa.C.S. fact). says or that counsel’s mistake Pelzer ignorance in was because the cause of death was prejudicial failure See Initial Brief Pelzer, at Appellee 61. question. essentially argument. According Daniels the same makes Daniels, to court’s shifted burden to trial instructions on the fact that the by focusing jury’s attention appellees shot, suggesting shooting had been that the was victim (that death, he testimony which made Daniels’s cause shot) he was appear believed the victim was dead the time trial deci- immaterial. Daniels then contends that counsel’s Pelzer’s join objections raised counsel sion was ineffective appellate He adds that counsel inadequate. issue on failing appeal. raise the direct to an Daniels also defendant is entitled contends defense, long sup- on so as it is any recognized instruction Daniels, suffi- According the record. there was ported by instruction, fact cient evidence to mistake of require the intent to kill because the victim that he lacked grounds personally pull before shot and he did not being was dead our Again seeking collaterally attack decision trigger. Daniels his view that this PCRA reiterates prior appeals, *29 in that intent appellees’ Court erred to kill was determining throughout kidnapping. demonstrated the course of the Dan- that the jury iels claims that issue is reserved for to make actually based on the trial that occurred. Like findings Pelzer, argues Daniels he was a prejudiced that because mistake of fact instruction would have advanced his prospects first-degree a murder verdict. avoiding
The that the evidence responds Commonwealth did and, event, support any a mistake of fact defense the First, appellees. absence of the instruction not prejudice did only the Commonwealth notes that a mistake of fact defense is available when there is that the defendant proof harbored bona that fide and reasonable belief a fact the negates intent to the crime. The commit Commonwealth notes that in case, testimony this Daniels’s appellees showed that were the unsure whether victim was dead and that he was shot in Thus, order to make certain he dead. the was evidence did appellees not show that a bona that had fide belief the victim was dead at the time of if shooting. Additionally, even belief, they had such the Commonwealth asserts that the overwhelmingly evidence demonstrated in- appellees’ specific Thus, tent to kill the victim before long they shot him. Commonwealth, according appellees cannot establish an entitlement to relief.
Second, appellees the Commonwealth that argues cannot they establish that were prejudiced by counsels’ failure to trial, request charge. Given the evidence presented Commonwealth argues, jury rationally could not appellees concluded that specific lacked the intent to kill even if the both jury believed victim in fact was dead at the shot, time he was appellees believed he was dead. points Commonwealth to this Court’s on the opinion prior appeals prejudice argument. to buttress its
In Pelzer reply, argues that his statement to the police victim showed that he believed the was dead when he was Additionally, Daniels, shot. says Pelzer echoing prejudice Commonwealth’s argument misses the mark because the trial jury court’s instructions denied the the option he was murder if the guilty first-degree whether consider means than shooting. some other killing accomplished confuses the Daniels the Commonwealth responds an to be entitled to instruction necessary evidence quantum on a mistake of fact quantum necessary prevail with the Daniels, cannot According Commonwealth defense. ultimately what would have regarding speculate decided. *30 claim, Brady to its assessment of the the PCRA
Similar effectively previously that this issue was court concluded appeals, on the collateral since this Court litigated prior were appellees they did establish concluded the of by disputing counsels’ failures manner prejudiced death. his argument we note that Daniels
Preliminarily, reprises precluded regarding are from what “speculating” that we if had a pursued have decided counsel jury ultimately would that erroneous already different course. We addressed supra, A, of in terms of disposing prior notion in claim both and in terms of a proper on the earlier litigation appeals, under Strickland by prejudice of the assessment appreciation reviewing court. merits, neither appellee it is notable that Turning raised trial objections actually by adequately accounts counsel, of a similar issue on direct or this Court’s discussion fact, to the trial point objected In of Pelzer’s counsel appeal. jury instruction to the that the cause death was only court’s to kill could be specific and that intent gunshots of a a vital deadly weapon upon part inferred from the use N.T., 11/9/89, joined counsel body. 58-61. Daniels’s Id. for both lengthy objection. appellees at 61. Counsel court’s specifically charge also asked that cause death caused stran- possibility death address the objected that the court’s further gulation; appellees theory trial had happened, reflected the court’s of what charge that evidence alternative theories supporting notwithstanding also be jury, had to the which should presented of death been accounted for in the court’s The trial court charge. repeatedly the objections, denied that the emphasizing evidence respect- ing strangulation only would “show more” respecting appel- lees’ intent. Id. at 60. direct appeal, appellee
On Pelzer argued that the trial court improperly expressed opinion its to the the victim gunshot died of thereby wounds compromising fact-finding function of the jury. rejected The Court the claim on the basis that the trial court’s comported instructions with the evidence. We specifically held that the charge did not under- defense, mine appellees’ which was that malice was lacking because they believed the victim to be dead at the time he was Pelzer, shot. See Commonwealth v. 612 A.2d at Appel- 413. lees now present claim, similar underlying with a Sixth Amendment gloss ineffectiveness, in trial sounding counsel but fully without accounting for counsel’s actual conduct or the claim raised on direct appeal. Although the Sixth Amendment framing may prevent the rejected claim from being outright on previous litigation grounds, Collins, see Commonwealth v. (2005), 585 Pa. 888 A.2d the fact that prior counsel pursued closely related arguments, fail, only have them *31 obviously undermines appellees’ present Sixth Amendment claims. Notably, appellees do not adequately address the objection actual counsel, forwarded by Pelzer’s which was joined by counsel, Daniels’s nor do they even acknowledge, address, much less this Court’s discussion of the related issue counsel then raised on direct appeal. appellees Because fail to (and account for the actual trial direct appeal) by actions 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
our prior decision on
the initial
appeals,
PCRA
where we noted that
specific
cause of the victim’s death said “little about appellees’ inten-
tion—which was a very different question.” Pelzer and Dan-
iels,
C. that guilt next trial counsels’ Appellees complain that ineffective. Pelzer avers phase closing arguments were defense, but closing his failed to offer coherent lawyer’s general legal principles, of a instead consisted discussion “factually in a presented which never focused on the issues theory respecting case. Again reprising complex” death, that never argued Pelzer counsel complains cause of kill he intent to the victim lacked the because him, a dead already shooting dead when he shot murder, kill no inference of intent to person is not and that can from if there was a reasonable shooting be drawn dead him. already the victim was when he shot doubt whether abdication closing Pelzer concludes counsel’s was an responsibility. lawyer’s that his summa complains
Daniels likewise worse, and, lay argued tion out a coherent defense failed that the jury. Daniels contends legal precepts incorrect clouded, clarified, the cause of death argument rather than Pelzer, Daniels jury. intent Like issues for specific not have counsel he could argued avers that should dead already kill if the victim was specific harbored a intent to coun standby him. also notes that when Pelzer shot Daniels (co-defendant Bello, Stacey Tor sel Thomas Esquire counsel) *32 trial hearing the PCRA that rance’s testified at status) (retained pro hoc vice granted counsel Daniels and help arguing instead of was to divine intervention looking 12/12/01, N.T., the case. the as relevant the facts of law Drost); N.T., 5/7/02, at Bel- (Attorney 29-30 45-51 (Attorney lo). Daniels concludes that he was because coun- prejudiced closing only sel’s abandoned the viable defense.
The responds Commonwealth that counsels’ performance was more adequate: they than forwarded theories of inno- evidence, cence, prosecution’s attacked the emphasized and the innocence presumption of and the Commonwealth’s burden proof. Pelzer,
In specific argues the Commonwealth response that counsel that emphasized Pelzer was innocent until proven and that the Commonwealth the guilty proving had burden of that fact guilt. Commonwealth also notes counsel in argued that, that the he victim was dead before was shot and therefore, Pelzer did have the intent to kill. The specific Commonwealth that counsel that argued inculpa- adds Pelzer’s tory police statements to were Dan- unreliable and that testimony iels’s trial implicating Pelzer should be discounted merely because he blame trying to shift for the crimes to Alternatively, Pelzer. the Commonwealth offers that Daniels if cannot establish since even prejudice, jury believed shot, victim was dead at the time he was this fact did not undermine proof intent to kill specific or appellees directly caused the victim’s death. Daniels,
In response to the Commonwealth stresses counsel argued appellees never intended to kill the victim that the and extended conspiracy only stealing keys his burglarizing parents’ his homes. The Commonwealth further highlights that argued counsel that Daniels lacked the specific intent to kill because the victim died before shooting, reject urged jury to Pelzer’s statement that he shot only victim because Daniels gun held a his head. The Commonwealth contends that Daniels’s counsel dis- cogently cussed several theories of innocence emphasized (since client’s credibility willing he had been to take the stand defense). Moreover, in his own to the extent that counsel doubt, misstated the law regarding reasonable the Common- wealth argues any actually misstatements favored Dan- iels, since exaggerated counsel Commonwealth’s burden *33 same, the alterna- The concludes with Commonwealth proof. that it prejudice Strickland forwards argument respecting tive Pelzer. respect with to arguments the Commonwealth’s briefly responds
Daniels to argued have may that the fact that counsel some by noting to him does render his helpful were points his counsel adequate. acknowledges summation Daniels shot, was been dead when he may that the victim argued Daniels, undermined a argument by this was according but victim have been may concession that the alive. very stated that the issues of briefly
The PCRA court victim’s intent and the manner of the death appellees’ specific Moreover, the dismissed. previously litigated were issued doubt instruction indicated that reasonable Accordingly, the court determined trial court was correct. failed. that this ineffectiveness issue 119, 855 In v. 579 Pa. A.2d Bryant, Commonwealth (2004), required the deference in re- summarized Court an summation as follows: viewing attorney’s closing argu- to effective assistance extends right Nonetheless, in deciding has wide latitude ments. counsel client, to counsel’s how a and deference represent best to is closing presentation particularly tactical decisions range legitimate of broad of defense important because arguments “sharpen should strategy stage. Closing fact,” by the trier of the issues for resolution but clarify are clarify and how best to them sharpen which issues to Indeed, it might questions many with reasonable answers. altogether. forgo closing argument make sense sometimes attorney’s of a defense summation there- Judicial review highly fore deferential. 1, 5-6, 124 Gentry, at 742 v. 540 U.S. Yarborough
Id. (quoting (2003)). 1, 157 Additionally, Bryant L.Ed.2d 1 Court S.Ct. entirety review be based on the of stressed that must taken not mere or out snippets arguments summation and 743. context. Id. at of the appropriate
Mindful review standard —and mindful of issue, this case not at trying identity realities where appellees gagged and where held bound and in the teenager time, trunk of car for an extended while committing deriva- tive that appellees’ crimes of find opportunity Strickland —we sure, attorney’s claim To be neither fails. summation was the height clarity both summations advocacy certain- —and —or ly jury’s could have focused the better attention Nevertheless, relating defense to the cause of death. viewed *34 in entirety, jury their the summations reminded the of the innocence, of Commonwealth’s burden and the presumption evidence, the argued weaknesses in Commonwealth’s and for- the theory, warded defense primary comparatively weak the though defense was.
Thus, Pelzer’s counsel first reviewed the guiding law the deliberations, jury’s the of emphasizing presumption innocence nature the of reasonable doubt. Counsel sought then to blunt the of harmful effect Pelzer’s statement to the police, that it arguing was unreliable because the circumstances surrounding the interview. He also addressed Daniels’s dam- trial aging testimony attempted that to shift the blame for the to shooting any Pelzer and to distance himself from conspiracy victim, to kill jury the and asked the Pelzer’s compare against statement 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 reject N.T., 11/8/89, then 41-44, Daniels’s trial testimony. 45, 46-50, 50-52. counsel,
Following Pelzer’s Daniels’s counsel reminded the jurors the they important judges function served as of the facts. He emphasized that the alleged conspiracy was not well organized and “loosely was based on a arranged” agreement. His logical light main of the evidence that contention— Pelzer fired the the shots Commonwealth argued were fatal— was that the conspiracy only extended to the robbery but burglary, never included a murder. Additionally, counsel argued the Daniels withdrew from conspiracy prior to the shooting, theory that was based on Daniels’s own trial then that if the victim testimony. specifically argued Counsel shot, ie., “if you at the he was find from was dead time him,” dead took then they that the deceased was before facts can’t premed- no premeditation “[y]ou there was because person already by when a dead.” Counsel continued itation theory, an which assumed that the victim offering alternative (consistent expert’s opin- alive with Commonwealth’s was ion), conspiracy that Daniels’s arguing participation urged also shooting. ended Counsel prior was the defendant to take the only consider that client stand, asserting given that his should therefore be testimony statement, argued police Counsel Daniels’s weight. testimony with trial comport which did Daniels’s the victim dead time of conspirators knew was victim, kill the and that he never shooting conspired police unreliable based on the circumstances surrounding interview. then to the of the concepts presumption
Counsel turned doubt, innocence and reasonable doubt. Related to reasonable reason, stated that “there is no reasonable confusingly counsel we innocent or that this fact assign reason that can he’s flourish, *35 be so.” In a rhetorical counsel then stated may not he had the term of innocence” rather “assumption coined innocence,” jury to the “presumption explaining than later the con- “preferred” he that term. Counsel addressed fashion, idiosyncratic in a similarly of reasonable doubt cept that, explaining you
I mean a whole of evidence [from have avalanche is, you [reasonable doubt] But what Commonwealth]. ... there is evidence say okay to look on other side says has but here is a candle that transpired that this over me, me, me. As you look at can dismiss can dismiss you blow out candle a reasonable long you as cannot doubt, then have to find for the Defen- says you the law remem- ... our of law since man principle dant. That’s been con- Man remember to the contrary. bers to doesn’t they have a criminal why person says That’s when trary. it guilty something, or that have been found they record stigma, your carries such a that is because a peers has that there your found was no evidence of innocence. see, they
You didn’t that they you find believed that were innocent or were they they guilty, believed that’s not the test. That’s not the test. The test is that the Jury has they fact, deliberated and that there is find no reasonable fact establishing your entirely innocence. That’s an differ- situation, ent finding reasonable fact to establish an innocence than to say you’re we feel that You guilty. say done, this is this is not a test. bring you We didn’t hear what, know, to determine how feel or you you your [sic] basic or what assumptions your basic notions are. Your role is to determine the facts based on that standard of reasonable doubt. 95, 98, 99-100, 103,108,110.
Id. at easy It was no task for either lawyer defense in this case given appellees’ extended detention of the victim in teenaged circumstances, horrifically confined no task doubt was difficult particularly for Pelzer’s counsel because of the evi- dence that his client had delivered the four-shot de coup grace. (The point is that even if the jury were to believe that the dead, victim was already hands, appellees’ act of counsel.) shooting made the road that much harder for main thrust of Pelzer’s counsel’s argument was aimed at the two most blunting damning sources of against evidence client: Pelzer’s own incriminating statement police claimed, Daniels’s trial testimony, which Daniels’ for first time, that he intended to let go. the victim argued Counsel police Pelzer’s statement was not reliable and that Dan- iels should not be believed. Counsel also upon touched issue related cause of death. These were among very few arguments to be made given the facts and circum- stances surrounding the crime and Daniels’s trial decisions.
Daniels’s counsel stressed those of the case aspects distin- guishing his client from Pelzer in a fashion that warrant might *36 verdict, a lesser in particular the slant that could be derived from the fact that he addition, was not the shooter. In argued counsel that his client had withdrawn from the conspir- cause and specific and he addressed the of death acy, directly an alternative gave argu- intent issue. counsel then While alive ment, that the victim was at the premised upon assuming shot, necessarily do not arguments time he was alternative case; defense it is undermine the Commonwealth Thus, frankly addressed the most bears burden. counsel client, so albeit he did in an damning against evidence although fashion. counsel’s idiosyncratic Finally, description comport doubt did not with the of the reasonable standard law, accurately observes that Commonwealth governing objected the Commonwealth—would argument —not It is the Commonwealth’s burden. difficult heightened misstatement, the circum- particular to see how this under stances, constitutionally rendered counsel ineffective. a closing argument do that either suggest
We But, considering potential clarity. purpose paragon merely argument of summation—which remains effect —nei- here presentations ther are we hold that were prepared deficient under Strickland. lacking constitutionally so as be Moreover, arguments by the extent either or both deficient, are that appel- can deemed we satisfied lawyers be a central prejudice. Again, lees have not Strickland proven appellees’ argument pervasive complaint turns part directly pursue that counsel did not more or aggressively have already cause of addressed the death-based defense. We that that weighing the notion course against considerations outcome, given of a probability offered reasonable better counsel with and could not damning evidence had contend explain away. their respecting we hold that claims
Accordingly, appellees’ fail. lawyers’ guilt phase closing arguments layered necessarily appellate claims related to counsel ineffectiveness fail as well.
D. Eugene Torrance and McClure Stacey Co-defendants the four were tried with Each of defen together appellees. police to the and each statement dants had made a statement *37 238 trial, objection, redacted and then admitted at over but
only against statement, the defendant making pursuant U.S., Bruton v. 1620, 391 U.S. S.Ct. L.Ed.2d 476 (1968). now Appellees allege that the trial court erroneously admitted the statements appellate and counsel were ineffective failing pursue a claim of trial court error under Bruton on direct appeal.
Pelzer contends that the statements were “interlocking,” that the admission of the statements violated his constitutional Bruton, rights to confrontation process and due under the trial court’s instructions did not cure the error. Moreover, Pelzer, according to redaction alone does not avoid the reach of Bruton when the redacted powerful- statement is ly incriminating. Additionally, argues Pelzer that the redac- tions were insufficient because the jury could infer to whom the statements referred in of their light interlocking nature. Pelzer declares that “there are also specific ways numerous which ...,” the statements Pelzer, interlock Brief of Appellee at but he fails to identify any of these alleged “specific ways.”
Daniels also emphasizes the interlocking nature of the state-
ments. Daniels argues that the redactions were inadequate
and alerted the jury to the fact that
removed,
names were
making the redactions especially suspect. Brief of Appellee
Tutino,
Daniels,
at
42-43 (citing U.S. v.
(2d
The Commonwealth that in order to violate Bru- responds ton, the non-testifying co-defendant’s statement must be in- criminating on its face without linkage to other evidence. Where the statement is redacted and the jury is properly instructed, contends, Commonwealth no Bruton violation *38 fails argument Pelzer the Commonwealth’s responds nature of the statements under Cruz interlocking address the York, 186, 1714, 162 v. 481 107 95 L.Ed.2d New U.S. S.Ct. (3d (1987). Wilson, 270 also v. 550 F.3d Vazquez Pelzer cites Cir.2008), can proposition implication for the that contextual Clause. violate a defendant’s under Confrontation rights all court the statements were The PCRA concluded by to the co-defen- replacing redacted references properly “him,” “he,” or with such as pronouns, dants’ names neutral The also the trial detailed guy.” “the other PCRA instruction, properly the trial court concluding court’s jury. instructed the is Bruton claim precedent, underlying governing
Under merit, focusing upon without and thus the collateral claim par- lacks need appellate engage counsel merit. We jurisdictions, ties’ decisional law from other upon reliance because Appeals, the Third Circuit Court including U.S. see, control, Partner- e.g., cases do not Stone Crushed those 296, O’Brien, 908 & 589 Pa. v. Kassab Archbold Jackson ship (2006), case law 875, ample there is decisional A.2d 884 Bruton. following applying from this Court joint in a trial of co-defendants general rule appropriate can an presumes that the law that the follow re instruction, with explains which that evidence introduced against be one defendant cannot considered spect only salutary general from Bruton this departed other defendants. are “powerfully that where there only by concluding rule non-testifying against statements” admitted incriminating 240 accused,
co-defendant who stands side
side with the
such
inherently
statements can be
as well as
devastating
suspect
when
shift
they
the blame to the accused. Commonwealth v.
(2003).
McCrae,
594,
1026,
574 Pa.
Following
A.2d
Bruton, the
Supreme
approved
U.S.
Court has
redaction and a
instruction as a means of
limiting
eliminating
possible
from the
of a
spillover prejudice arising
non-testify-
admission
ing
against
co-defendant’s confession
that co-defendant at a
Marsh,
200,
joint
1702,
trial. Richardson v.
481 U.S.
107 S.Ct.
(1987).
241 here, not mounted appellees by the trial ployed that, appellate if only that shows any persuasive argument issue, prospect there of any had the was pursued counsel A.3d at See 79 624. existing Roney, success under law. pursue are not claims lack a obliged appeal Counsel claim Accordingly, appellees’ reasonable success. prospect fails. counsel ineffectiveness appellate
E. phase by raises claims not raised Finally, guilt Daniels two First, court’s reasonable Pelzer. Daniels trial alleges in “restrain” was employing language doubt instruction object failing counsel ineffective for error trial instructing the trial court charge. upon Daniels focuses would reasonable doubt is doubt that cause that “[a] person to restrain before reasonably careful sensible N.T., affairs.” a matter of his own acting upon importance 11/9/89, that the trial responds at 14-15. The Commonwealth instructions and phrasing jury court has broad discretion in rejected very challenge many this has same Court the prece- follows reasoning cases. The PCRA court’s prior forwarded Commonwealth. argument dent-based rea- commonly respecting the more used instruction While “hesitate” rather than “re- employs sonable doubt the term strain,” rejected argument has repeatedly this Court forwards, the two Daniels the distinction between finding Simpson, v. terms to be de minimis. See Commonwealth 60, (2013) cases); Common- (collecting Pa. A.3d 274-75 (2008) Collins, 237, 264 v. wealth 598 Pa. A.2d cases). (collecting failing Trial counsel was ineffective rejected; claim of layered raise a claim repeatedly necessarily fails. appellate counsel ineffectiveness Second, of ineffective layered Daniels raises a claim use the court crier to ness from trial court’s arising *40 presence. of his jury communicate instructions to the outside to relay court told the crier Daniels avers trial press avoid the avoid discussions of instructions to case with outside parties. He then claims that this unobject- ed-to process violated his due process right present to be right to a fair and impartial jury. The Commonwealth responds any by statements the court crier fleeting, were were entirely consistent with the law governing jury delibera- tions, and that Daniels cannot establish prejudice any from these interactions.
The PCRA court concluded that the statements were com- municated to the in crier the presence of all counsel. Further- more, the PCRA court noted that the instructions did not matters, involve legal but were administrative in nature. Ac- cordingly, the court concluded that the claim lacked merit.
As a claim ineffectiveness, in sounding this issue is frivolous. Two of the three interactions referenced Daniels involved instances when the jury was discharged day. for the In the instance, first the court told the crier to let the jury go home and “tell them I caution N.T., them not to discuss the case.” at 182. The second instance occurred when the judge 11/3/89 weekend, released the instructing the court crier to inform the jury they could go home and that “they not to read any [were] articles in the newspaper about this case or anything N.T., with dealing 11/10/89, this case.” at 79. The third instance occurred after the jury asked to be rein- structed on accomplice liability and murder. The court told the crier to tell the jury to “save request] for [the tomorrow N.T., morning.” 11/9/89,at 123.
The notion that the outcome of the trial would have been different if only trial objected counsel had 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 generally law requires a showing ex parte communications with jury resulted in prejudice order to warrant relief. See Common Ali, (2010) wealth v. 608 Pa. 10 A.3d (“Nothing the truncated explanation crier, of the inor appellant’s proffer, suggests that the court crier’s communication with the jury, the mere concerning logistics the verdict recording
243 court’s or the actual deliberative charge affected the slip, could not establish actual jury” appellant of the process 25, v. 501 Pa. 459 A.2d Bradley, Commonwealth prejudice); (1983). 733, 739 of has the substance the crier’s
Daniels not established that other than what jury anything communications with the parties. in court in the open presence the court directed in were administrative nature The crier’s communications Moreover, the di- did not touch substantive matters. upon jurors when the were rective discussions the case regarding delib- governing jury home consistent with the law sent were erations, judge issued to and mere reminders directives layered in at other times. This claim is open court frivolous.
IV. PENALTY PHASE ISSUES phase no Having appellees guilt concluded that raise issues relief, phase. The warranting penalty we now turn to the granted phase relief with re- appellees penalty PCRA were for to their claims that trial counsel ineffective gard in mitigation. evidence We failing investigate present this address issue first.
A. scrutiny It of counsel’s “judicial is well-settled Strickland, 466 highly be deferential.” performance must 689, Few are more than at 104 2052. tenets settled U.S. S.Ct. 690, is effective. Id. at strong that counsel presumption —Burt, —, 2052; 134 at 17. 104 U.S. at S.Ct. S.Ct. con “Generally, strategy matters of and tactics are where cerned, constitutionally effec counsel’s assistance deemed if he that had some reasonable particular tive chose a course his client’s interests.” Common designed basis to effectuate (2008) 267, Puksar, 240, A.2d v. 597 Pa. 951 277 wealth 504, Miller, 623, Pa. 819 A.2d v. 572 (quoting Commonwealth (2002)). 517
244 stewardship
Specifically respecting capital case, it is under the Amendment well-settled Sixth that coun reasonably sel has an to conduct a obligation thorough investi gation evidence or reasonable mitigation to make decisions that make investigation unnecessary. E.g. further Common Sattazahn, (2008); wealth v. 597 Pa. 952 A.2d Strickland, 691-92, evaluating 2052. In U.S. S.Ct. claima of constitutional deficiency investigating and pre evidence, factors, senting mitigation we number of consider *42 including the reasonableness of counsel’s the investigation, mitigation trial, evidence was at actually presented the mitigation additional or different the evidence PCRA petitioner proves could have been and the presented, counter vailing evidence in strength Commonwealth’s aggrava tion, rebuttal of the new including defense evidence. None of is, itself, by these factors dispositive, because even if the investigation by unreasonable, conducted counsel was this fact alone will a require grant not of relief if the defendant cannot Lesko, demonstrate prejudice. Strickland v. Commonwealth (2011). 128, 15 609 Pa. 380 A.3d test prejudice requires Strickland for a show ing of a probability reasonable that the outcome of penalty proceeding here, unanimous verdict death—would — have been different. Obviously, penalty only a verdict suffi ciently by the supported likely record is more have been deficiency affected a in counsel than one with overwhelm ing record a support. Ultimately, reviewing must ask whether “the result of the particular proceeding [was] unrelia ble because of a breakdown in the process adversarial that our system Lesko, produce just counts on to results.” 15 A.3d at case, 383. In as the jury this aggravating found four circum stances and two mitigating circumstances related to each appellee, prejudice inquiry whether considers there is that, reasonable probability had the PCRA evidence been adduced at the penalty phase juror at one least would have concluded that mitigating circumstances collectively out weighed Gibson, the aggravating ones. Commonwealth v. (2011) ”). 332, 19 (“Gibson Pa. II A.3d evidence issue as mitigation court addressed The PCRA so because appellee separately, properly each and trial, and additional at presented evidence mitigation level; at particu- evidence forwarded the PCRA was mitigation Pelzer, Related to the court appellee. appellee to each lar only at trial consisted mitigation that Pelzer’s evidence noted aunt, himself from his Christine testimony from Pelzer and Foy. “Perstine” record, not criminal prior
Pelzer testified that he did he father some and that point he moved in with his or Foy lived when he was sixteen seventeen. eventually with high he sports played the number of teams He listed also school, high not school. He stating complete that he did in, but did participated complete, that he explained (“ROTC”) Pelzer Training Corps program. Reserve Officers’ alcohol he was using he when began drugs testified that at the using drinking and that he had been cocaine fifteen 11/13/89, N.T., 25, 28, crime. 30-31. time of the briefly background, noting testified as to Pelzer’s Foy his hands.” “slow but he was with She gifted he was a learner Pelzer lived with her “awhile” off further testified that family. her on, respectful he and her always and that *43 11/13/89, N.T., Ultimately, at members of the found 46. (1) found jury unanimously mitigating two circumstances: history mitigator, criminal 42 Pa.C.S. significant the no (2) 9711(e)(1), mitigator juror § one found catchall 9711(e)(8). under subsection court presentation, upon
Based Pelzer’s PCRA PCRA could additional and presented that trial counsel have found Foy, testimony as from evidence from as well pointed more (Hil- uncle, Pelzer, and his aunt Pelzer’s Gloria Hilderbrand wife), circumstances. The about Pelzer’s childhood derbrand’s could presented further that trial counsel found cir- testimony mitigating of two additional support expert cumstances. what hearing, offering testified at the PCRA
Foy Specif- life pointed testimony history. more Pelzer’s indeed ically, Foy claimed that Pelzer’s mother was a compulsive gambler, who could not keep stable of residence place her home permitted to be taken over by drug Foy dealers. also testified that Pelzer attended five different elementary schools and three different middle schools due to frequent of residence. changes Foy stated that Pelzer’s mother al- drug lowed dealers to move bedrooms, into the children’s forcing the children to sleep on the floor.
Foy also testified that the men in Pelzer’s mother’s life abused the children. In particular, man, she testified that one Barnes, Tony raped Pelzer’s sister and beat Pelzer and his brother with two-by-four pieces of Foy wood. said that she witnessed hitting Barnes Pelzer with ironing an 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 intervene, she tried to but Pelzer’s mother was not receptive. Foy stated that she informed trial counsel of circumstances, Pelzer’s childhood but she was not asked any questions regarding information when she testified at the penalty phase.
Gloria and Hilderbrand Pelzer testified at the PCRA hear- ing Pelzer was designated as socially/emotionally dis- turbed in school. Hilderbrand and Gloria stated that they would have testified at the penalty phase hearing had they been asked.
Pelzer presented also expert from testimony two psycholo- Ph.D.s, with gists Dr. Harry Crown, and Dr. Krop Barry hearing. PCRA Dr. Krop testified that school records indicated that Pelzer had a learning disability and that he “social, suffered from emotional problems, impulsivity, depres- sion, insecurity, feelings of inadequacy relative to social situa- tion, and considerable inner tension.” Dr. Krop admitted that there was no evidence of a “diagnosable disorder,” mental diagnosed Pelzer as suffering polysubstance from abuse. He further testified to an opinion that the interactive effect of *44 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 the time of mental or emotional disturbance at extreme at 42 offense, recognized which is circumstance mitigating 9711(e)(2). those stated an that opinion § He then Pa.C.S. impair ability Pelzer’s significantly same factors combined to it to conduct to conform criminality to of his or appreciate statutory adverting of the another requirements law— 9711(e)(3). Dr. circumstance. See § 42 Pa.C.S. mitigating red that Pelzer’s school records Krop presented also asserted flags, that was warranted. indicating psychological testing 63-64, 80-81, /01, 74-75, N.T., at 85. 12/11 test in the IQ testified that Pelzer’s results were Dr. Crown out of these normal and he “matured of some range records problems age.” with Dr. noted the school Crown and there was a referral to a psychiatrist reflected that child anxiety. feelings evidence of of and depression, inadequacy Like to a effect of Dr. Dr. Crown testified “cumulative” Krop, abuse, In his Pelzer’s opinion, background circumstances. Pelzer dysfunction, learning problems, drug and abuse caused at an extreme mental or emotional disturbance suffer from impaired capability of the offense which his timé his conduct conform his appreciate criminality and to law, support of the evidence in requirements actions to the 9711(e)(2) (e)(3) mitigators Krop. Dr. § the same cited 12/13/01, 21, 27, 30-31, N.T. 41-42. at counsel, Padova, at Mr. Pelzer’s trial also testified offering it would have hearing, practice PCRA been records, but that he did admitting obtain Pelzer’s school the records and he did indicating requested *45 conducted in preparation penalty phase, for the but he stated that his overall was “to plan present some idea as to Mr. him, Pelzer’s background, people cared for cared about him, from, where he was of that things sort.” Id. at 48. note Padova had a that indicated that he the information “got” that he wanted from Perstine Foy’s testimony during the Furthermore, phase. Id. at 68. penalty his notes indicated that he had learned that Pelzer was and was disrespectful school; thrown out of he may testified that he have considered painting Pelzer in a positive light jury, for the which is hewhy may any have avoided discussion of Pelzer’s time in school. (We stress, however, Id. at 74. that much of Padova’s testi- or mony vague speculative; his central claim was that he remember; did not even with regard to Pelzer’s school histo- ry, Padova only jotted stated: “That’s the I I thing down. anyone don’t recall whether or not else told me anything.”) The Commonwealth presented expert testimony rebuttal (M.D. from Dr. John Psychiatry) O’Brien and Dr. John Gor- (Ph.D. don Psychology). Dr. O’Brien testified that he disa- greed diagnosis with the of a mixed personality disorder found in the presentence investigation prepared after the trial. In event, any Dr. O’Brien further that a stated mixed personality disorder does not amount to an extreme mental or emotional disturbance. He agreed Pelzer suffered from a history of abuse, alcohol and mixed substance but stated that such abuse likewise is not an extreme mental or emotional disturbance. Dr. O’Brien specifically with disagreed Dr. and Dr. Krop Crown’s opinions that there was evidence establishing (e)(2) (e)(3) or mitigator. Dr. O’Brien also did not agree that there was evidence of a learning disability, noting that the school records reflected that intelligence Pelzer’s was “nor- mal,” and that his problems N.T., 5/9/02, were “emotional.” at 30-32, 122-24, 207-09.
Dr. Gordon testified that he did not agree that Pelzer suffered Instead, O’Brien, from a learning disability. like Dr. he testified that Pelzer’s school problems “were relat- directly Thus, ed to his social and emotional difficulties.” Dr. Gordon specifically discounted Pelzer’s experts’ notion of cumulating factors, learning disability compo- included a necessarily which nent. Id. at 234-35. no or that there was reasonable
The PCRA concluded reason trial counsel’s failure contact strategic Further- testimony from Gloria and Hilderbrand. present more, failing thoroughly the court faulted trial counsel for stand, her was on the question Foy noting while she to the compared at four as testimony pages long trial was testimony hearing. the PCRA forty-six pages counsel failed to ade- *46 court further found trial PCRA records, a examina- cursory review Pelzer’s school “as quately psychological long-standing [his] tion would revealed court, Furthermore, according the a reasonable issues.” to given have hired mental health attorney expert would then The court also noted the information in the school records. had investigation that Pelzer pre-sentence reported that “the disorder. This was not diagnosed personality with mixed been PCRA presented jury during penalty phase.”3 to 11/22/11, The further Op., at 33-34. PCRA court Slip diagnosis that Dr. for of the PCRA Krop’s purposes stressed report, mental health pre-sentence was consistent with the as from a “mixed diagnosed suffering personality which Pelzer features, disorder, sociopathic paranoid schizoid reactive history abuse.” Id. at 32. long drug and a discuss The PCRA court did not Strickland separately only summarily concluding for each instead prejudice appellee, that, psychologi- had the known of the troubled lives and sources, at appellee multiple issues each from afflicting cal mitigation juror likely one would have considered least failing obviously fault 3. The PCRA court was mistaken to counsel investigation pre-sentence report jury, to the since the “present” the pre- report did not existence until after the verdict. come into report prepared by Martell and was Decem- Dennis dated sentence 1989, prepared pre-sentence mental health evaluation ber while the M.Ed., Byrne, Presum- by was dated November 1989. Lawrence pre-sentence report as ably, PCRA its to the court intended citation something in a health that there was to be found mental corroboration trial, contemporaneous in the diagnosis to the and that evidence triggered along those inquiry counsel records should have an school lines. evidence to be sufficient to favor a life sentence. The PCRA court further reasoned that this Court’s direct appeal opinion was relevant in assessing prejudice, noting “three Su- preme Court Justices did not believe there was sufficient evidence support the torture aggravating circumstance and the opinion of two Justices who did not believe there was sufficient evidence to support aggravating circumstance of killing prosecution witness to prevent testimony. It is possible jurors that one of the would have given less weight these aggravators and that the additional mitigation evidence would have convinced them [sic] find that the mitigators were not outweighed by aggravators.” Id. at 36. present
On its appeal, Commonwealth argues that trial counsel was effective. The Commonwealth notes that trial counsel with spoke Pelzer about his background, him asking for the names of anyone who could testify 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 records, information in the school the Commonwealth avers that no one had indicated to counsel that there could be possible evidence in mitigation Instead, those records. *47 only information that counsel received from Pelzer and his family was that he disrespectful in school and was ex- pelled. 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 any uncover mental health mitigation evidence, as he never any received information that would cause him to thoroughly and, investigate school records event, any the information identified at the PCRA hearing was contrary to his strategy.
Respecting Foy, the Commonwealth stresses that trial coun- sel asked Foy open-ended questions, which provided an open- ing for discussing the trauma and abuse Pelzer allegedly suffered as a child. For trial example, counsel asked Foy why child; answered that both of his Foy Pelzer lived with her as Yet, question when asked a similar parents moving. were claiming hearing, Foy responded differently, the PCRA during living her of a difficult Pelzer moved in with because that situation, that The difficulty. and she then elaborated on testimony Foy changed avers that her simply Commonwealth death, in her after Pelzer was sentenced differences to do with the of trial nothing account have reasonableness conduct. counsel’s also addresses trial counsel’s failure
The Commonwealth present pre-sentence investigation report (despite at trial the trial) as diagnosed its at the time of that Pelzer non-existence personality from a mixed disorder. The Common- suffering not diagnosis that such a is a catch-all and does argues wealth an mental or emotional disturbance. constitute extreme Moreover, its expert disputed the Commonwealth notes that diagnosis. event, Commonwealth, to the the evidence any according
In not produced proceeding changed would have PCRA trial, may as the suggested the outcome evidence occurred, but also would have that abuse demonstrated concerned “enjoyed support Pelzer the love numerous Brief adult relatives to him overcome these obstacles.” help argues 42. The Commonwealth further Commonwealth at on of Pelzer’s light any that the school records did shed that its own problems. again emphasizes Commonwealth Pelzer serious mental health any did not with experts diagnose disability. a learning and did not even find he had issues reasons, concludes that Pelzer For these the Commonwealth any prejudiced by alleged penalty establish that he was cannot phase ineffectiveness of counsel. sup- the PCRA court’s are responds findings
Pelzer that coun- Pelzer contends ported by Specifically, record. mitigation limited into very investigation sel conducted evidence, Pelzer also relying only a narrow set of sources. counsel failed to adequately reiterates view that *48 Pelzer Foy when she was on stand. thoroughly question fifteen Foy prior that met with minutes argues counsel be testimony, telling only her her that she would called as a witness.” avers that the mere fact that “character Pelzer testimony Foy change counsel elicited some from does not fact he could have much more helpful testimony, that elicited testimony as demonstrated her at the broader PCRA proceeding. expert
Pelzer then turns to his school records and testimo- that ny, arguing cursory even a examination the records revealed longstanding psychological would have his issues. Pelzer, Furthermore, records, such according would have (1) placed that he had for social and revealed been classes (2) emotionally disturbed children and his unstable home address). (given changes environment Pelzer frequent argument this by alleging extends that the school records prompted reasonably attorney would have effective to con- which, sult with a mental says, health he would have expert, mitigation led to evidence of the he type presented during hearing. PCRA
Pelzer further the lack of a argues proper investigation him prejudiced opined as his evidence experts sup- different ported statutory two mental health-related mitigat- circumstances, ing provided and also additional information relevant the catch-all juror Prejudice one found. mitigator established, he says, amount of information that given available, discovered, was but not and the dearth of informa- tion that was actually presented. Pelzer con- Accordingly, cludes that PCRA a new penal- court’s determination that ty phase is warranted stand. should
Having testimony reviewed the at the presented pen alty phase, additional that allegedly evidence could have been discovered and and the presented, parties’ arguments, we conclude court did not holding PCRA err in Strickland, i.e., Pelzer established the performance prong that trial counsel’s penalty performance phase ascertaining and presenting mitigation evidence was deficient.4 The ques- evidentiary hearing 4. We that the Judge stress before conducted Lineberger, Judge Judge opinion and not Temin. Temin's makes clear *49 in alleged deficiency be if the consisted might only tion close and Pelzer and to failure call Hilderbrand Gloria to fully concerning hardships various in Foy more Pel- question But, that was unexplained lapse heightened zer’s childhood.5 the leads in the school records pursue counsel’s failure to by records). The even reviewed those records (assuming counsel in eventually that had school and struggled Pelzer revealed emotionally and socially in classes for disturbed placed was fourteen; sup- these facts would have children when he was family accounts. corroborated the ported this have importantly, prompted information would More to at least consult with a mental reasonably competent counsel ex- psychological and consider whether further expert health something if was warranted to determine there amination was supported strong- client’s that could have background in his contemporaneous in mitigation. Notably, nearly er case it not although was pre-sentence report, found in the diagnosis testimony or as the nearly specific so favorable PCRA (who purposes Pelzer for adverted retained PCRA experts offers some measure corrobo- statutory mitigators) specific mitigation presentation to a pertinent ration that evidence have trial if in mental health could been obtained for sounding suggested by had the course the school pursued counsel records. in fully mitigation sounding that case
Again
any
mindful
(e)(2)
(e)(3)
mitigators
mental
was
health
specific
upon
new
purport
did
her award of a
trial
that she
basé
determinations,
seriously
credibility
does not
and the Commonwealth
as,
matters,
example,
dispute core
such
the school
factual
provided
fodder for further
records were available to counsel and
some
not,
investigation.
appellee’s
note
evidence was
We also
not, challenged
grounds
experts
unqualified to render
that his
were
thus,
assessing
opinions.
evidence for Strickland
such
And
this
(1)
we
it would
been both
admissi-
purposes,
remain mindful that
have
(2)
by
impeachment
the Common-
subject
ble and
and contradiction
wealth.
by
that he contacted a man
the name
5. Trial counsel’s notes reflected
Pelzer,"
Hilderbrand,
may
while
been
Hilderbrand
"Mr.
who
being
by
any
counsel.
In
that he did not remember
contacted
testified
event,
why
call
there
indication
counsel did not
Hilderbrand
was no
contacted).
(assuming
Pelzer"
counsel
trial
that he was the "Mr.
subject
Commonwealth,
rebuttal
in assessing coun-
sel’s
we
performance,
weigh
abject
must also
counsel’s
failure
to conduct a reasonable investigation against
the relative
paucity of the
actually
case
counsel
mustered in mitiga-
minimal,
tion.
presentation
Counsel’s
consisting of testi-
mony from Pelzer himself and brief testimony
Foy.
from
Counsel’s failure to
present
history
fuller life
and to consult
with a
expert
mental health
and uncover and place before the
jury information of Pelzer’s childhood circumstances and men-
tal health issues was deficient performance. The failure is
*50
noteworthy
that counsel
given
asked the trial court to instruct
(e)(2)
(i.e.,
on the
jury
mitigator
that Pelzer was acting
under the influence of an extreme mental or emotional distur-
bance) by
on the
relying
sole fact that Pelzer allegedly shot
the victim under the direction of Daniels. The fact that this
theory occurred to counsel
should
some
prompted
meas-
ure of supporting investigation. Equally
in
perplexing,
con-
text,
knew,
is the fact that
minimum,
counsel
at a
that Pelzer
learner,”
had been a “slow
since Foy testified to that fact at
the penalty phase.
apparently
Counsel
did nothing to investi-
gate and
Foy’s
corroborate
description of his client’s limita-
tions.
Considering
evidence that reasonably competent
counsel could have uncovered and offered along with the
minimal evidence that counsel actually presented to the jury—
and in light of the
Supreme
U.S.
Court’s emphasis on the
importance of mitigation
nature,
evidence of this
Wiggins v.
Smith,
510, 522-23, 534,
539
2527,
U.S.
123 S.Ct.
156 L.Ed.2d
(2003);
471
362, 396-98,
Williams v. Taylor, 529 U.S.
120
1495,
(2000)
S.Ct.
Although the issue is
judicial
and reasonable
minds might
we
disagree,
also believe that Pelzer has demon
strated
prejudice.
Strickland
The jury unanimously found
(1)
four aggravating circumstances:
the victim was a prosecu
(2)
tion witness to a murder or other felony;
the victim was
(3)
being
reward;
held for ransom or
the offense was commit
(4)
ted by
torture;
means of
Pelzer and his cohorts
in
felony.
while
a
killing
perpetration
committed
found,
lack of a
unanimously,
significant
also
jury
circumstance,
as a
history
mitigating
criminal
prior
mitigator.6
found the catchall
juror
single
independently
presentation by
paucity
mitigation
the relative
Given
trial,
jurors were still
significant
receptive
it is
counsel
unanimously;
one
and that
enough
mitigators,
to find two
view the aggrava-
also
that the
did not
finding
suggests
jury
being
as
of such
by
tors established
Commonwealth
multiple
a case of
murders —as
example,
quality as,—
to a
case in
comparative
mitigation.
make the
unreceptive
case).
Lesko,
(multiple
Thus,
the
prejudice,
of
Strickland
purposes
assessing
a
the defendant has shown
reasonable
question whether
that,
the
evidence adduced at the
mitigation
had
probability
Commonwealth)
(and
been
hearing
by
rebutted
the
also
PCRA
outcome of the
phase,
proceed-
presented
penalty
juror
at least one
would have been different because
ings
circumstances collective-
mitigating
would have found that
as)
(or
circum-
weighty
aggravating
were as
ly outweighed
stances,
juror
quality
to find that the overall
or
convince
life
in
sentence of
in prison.
of the case
warranted a
mitigation
II,
See,
Parenthetically,
A.3d at
we note
e.g.,
19
526.
Gibson
where
has
jury
held that
previously
Court has
circumstance,
the catchall miti-
including
found a mitigating
mitigating
factor or
specifically
enumerate
6.
did not
juror
comprise
the catchall circumstance.
factors that this
considered
circumstance,
gating
the defendant cannot demonstrate
prejudice
Strickland
based on additional evidence supporting
Rios,
that same mitigator.
583,
Commonwealth v.
591 Pa.
790,
(2007);
A.2d
812-13
Marshall,
Commonwealth v.
571 Pa.
289,
(2002). However,
The task of reweighing is not an exact science: we must evaluate the relative strength of the evidence in aggravation as mitigation, well as the parties’ arguments light full hybrid record produced at trial and upon collateral attack. Here, Id. much of the evidence that Pelzer offered on collater- attack, al in addition to arguably supporting the mental health mitigating 9711(e)(2) circumstances (3), outlined Section would also tend to strengthen (e)(8) the case in support of the catchall mitigator, lending more weight to that mitigator. At the PCRA hearing, Krop Drs. and Crown testified that the information provided to them supported conclusions that Pel- zer suffered from an extreme mental or emotional disturbance at the time of the offense which impaired his capability to appreciate (the (e)(2) criminality his conduct mitigator), and that he was unable to conform his conduct to the require- (the (e)(3) ments of the law mitigator). The experts based their opinions on a factors, combination including Pelzer’s *52 learning disability, childhood, his troubled drug sure, alcohol abuse. To be the Commonwealth presented rebuttal, their that Pelzer opinions in who testified to experts he disability not learning not suffer from a did did course, in the mental health Of mitigators. establish either of to which set of project of it is difficult dueling experts, a case have any juror the or would chosen experts jury single believe, receptive have to the jury or even if the would been here, the presented, evidence opinions notion the known, be the What can mitigators. made out properly however, opinions those would have been admissible consideration; and, jury’s the the and become of mix for part if the the health jury mitigators even did find mental the additional information was still available specifically, the and in the mitigator, jury’s consideration under catchall the comparative Noting again assessment. relative overall trial, mitigation actually of in forwarded at we the case paucity that, minimum, probability there is a reasonable believe at a stronger case for juror that at least one would have found a if mitigator. Similarly, the counsel mitigation under catchall history, fuller life there presented appellee’s had a account have juror reasonable that a reasonable would probability is a history more life factors assess- given weight appellee’s the mitigator. catchall ing
Meanwhile, aggravation the evidence in established kidnapped 16-year-old youth their cohorts a appellees and ransom to kill him. Al- deciding and held him for before there though resolving was some division on Court the evidence to concerning sufficiency appeal, direct involving and the aggravator aggravator torture prove witness, aggravators the other two killing eliminate —that he while victim held for ransom and that died being felony kidnapping were appellees committing —were Moreover, in assessing strongly supported evidence. of the direct prejudice, although some members Strickland respecting unconvinced certain appeal may Court been found jury unanimously the fact remains that aggravators, doubt; beyond contrary a reasonable all four circumstances court, is no reason to believe that the view of the there PCRA aggravators those the same doubts about harbored *53 articulated, matter, legal were as Justices in the on those issues.7 ultimately minority business, a strange assessing This is the relative heinous- as in against mitigation. Obviously, ness of murders evidence can subjecting a murder be committed without first a young victim the inherent in confining youth terrorization in time, mercilessly the trunk of a car for a of with long period sock into his a manner easily stuck mouth in that could cause sure, is, there an asphyxiation; to be extra measure of deprav- Nonetheless, ity “mere” here. beyond murder particularly trial, given presented mitigation the weakness of the case in at review, and the dictated of Sixth standard Amendment we probability conclude that there is a reasonable that at least juror one would mitigation view both the case differently, and penalty overall judgment differently, and would have decided of the against imposition death In our penalty. view, is at there least a sufficient of that result prospect as to call question into the basic fairness of the in proceeding, light of ineptitude. Accordingly, counsel’s we affirm the PCRA phase court’s award a new as to penalty hearing appellee Pelzer.8
B. turn now to appeal We the Commonwealth’s challeng ing Daniels, relief grant penalty phase on grounds that trial counsel was in presentation ineffective of mitiga- concerning 7. sufficiency aggravators, The issue for the on this record, definitively appeal reargument was on the resolved direct aby Daniels 4-3 vote. length 8. appellate perform- There no need to examine counsel's appeal raising ance on direct in not this claim. The Commonwealth argues that this claim is defaulted because trial counsel's ineffectiveness However, appeal by could been raised on direct new counsel. appellate hearing Pelzer’s counsel at the testified PCRA that he believed raising preserved that he limited post-verdict was issues motions. N.T., 5/9/02, capital appeal at 57-59. At time this direct was See, Grant; litigated, simply e.g., this was not so. v. Commonwealth see law). circumstance, supra (discussing prior also n. 1 Grant In this appropriate underlying it is to examine the claim of ineffectiveness on Walker, 8; Ly, collateral review. at 7-8 & A.3d n. Commonwealth v. (2009) C.J., (Castille, 602 Pa. 980 A.2d concurring). 101-02 mitigation a case counsel forwarded Trial tion evidence. in Daniels’s and difficulties disruptions both that stressed charac- his life and aspects as positive as well upbringing, Thus, his conviction. following ter, his conduct including Bertha Evangelist great-grandmother, Daniels’s counsel called her at lived with Daniels had Williams, testified that who Ms. noted childhood. Williams during his points different also testified deceased. She siblings were Daniels’s two of him, him, and did beat very cruel Daniels’s father Daniels explained She family financially. support ten, and that when he was to live with her moved to California *54 but school, college of year attended in high he was successful also She college. books for buy afford to then could not had murder, her great-grandson this following testified that on his own Daniels testified Christian. a devout become that he and he had become Christian behalf, confirming apologized He also for the victim’s death. felt remorse testimony from counsel offered Finally, trial mother. victim’s Ruffin, prison director of a who was the Moses the Reverend had attended all that Daniels Ruffin testified Rev. ministry. at the ministry by and classes offered the services life. changed his having spoke Daniels often and that prison admitted that counsel jury, to the closing argument In his mercy. for crime, argued he then but a “cruel” this was every day spend have to Daniels would explained Counsel penalty. is a serious in which prison, of his life for the duration take a it had to authority legal what jury then asked He with a was consistent mercy extending argued and life on the he focused Finally, and fairness. of goodness mind death, would since he put if Daniels was society value N.T., inmates. the other change example positive be an found jury of the members 11/13/89, Ultimately, at 138-48. (1) the no found jurors six circumstances: mitigating two 9711(e)(1), § 42 Pa.C.S. mitigator, history criminal significant mitigator the catchall (2) found unanimously and 9711(e)(8). under subsection Daniels, mother, Jacqueline Daniels’s hearing,
At the PCRA in events or traumatic negative various concerning testified history, including by her son’s life his sister was killed an twelve, when he automobile his brother committed sui- cide, the family was forced to relocate often because his alcohol, drugs father abused and could never gambled, the rent. Daniels attended ten different because pay schools family’s frequent of the moves. Ms. Daniels also stated that father, often with a belt by Daniels was beaten his once hospitalization, in his father him resulting forced to stand corner, night, “just every in a for the rest of the night” about wet the after Daniels bed. Ms. Daniels testified that she was and, not contacted about at the testifying penalty phase had contacted, N.T., she been would she have cooperated. 12/10/02, 140-52. presented expert
Daniels also testimony from Dr. Allen (Ph.D. Tepper psychology), who testified —based upon records, (who school with Jacqueline interview Daniels above), provided him with relayed the information and a opinion mental health an that Daniels evaluation—to suffered from a mixed personality dependent disorder and was upon alcohol. drugs and Dr. further that this Tepper diag- stated supported nosis was diagnosis pre-sentence investigation report, as well as the opinion of Common- O’Brien, PCRA expert, diagnosed wealth’s Dr. who had Dan- suffering iels as from and drug alcohol abuse.9 Dr. Tepper *55 also his view stated that the combination history of the life information and the alcohol drug and abuse were relevant to (e)(2) (e)(3) and health mitigators. mental Dr. Tepper he testified that did not ever being by recall contacted standby counsel, Drost, Mr. in preparation for trial and that he had no 5/7/02, indicating any N.T., *56 he religious tation focused on Daniels’s conversion after was arrested, very respecting little evidence presenting while
pre-crime background. The court further Attorney found that Drost had provided Attorney significant Houston with mitiga- tion evidence that Houston did not ultimately use. The court was persuaded that counsel could have presented more de- and, tailed evidence of Daniels’s background the court’s view, such evidence would not have been inconsistent with the ie., strategy that counsel actually pursued, focusing upon Daniels’s religious conversion and his poor relationship with view, his father. In the court’s such a strategy would have “presented a of a picture person who had a terrible childhood but some potential had when in a structured environment such as prison.” Furthermore, PCRA court Slip Op., at 27. court found that Houston’s failure to present any testimony from Jacqueline Daniels was unreasonable since Drost had performed the initial investigation and had alerted Houston to the existence potential of her testimony related to Daniels’s life history. The then determined that the evidence of Daniels’s abusive upbringing presented would have altered the sentencing profile presented to the jury. Respecting prejudice, earlier, Strickland as noted the PCRA court’s anal- ysis was the same for both appellees.
On appeal, the Commonwealth argues that Attorney Drost conducted a thorough investigation of possible mitigation evi- dence concerning Daniels’s background by interviewing family members. The Commonwealth further *57 Houston,” actively Mr. that Drost was involved attorney as case, “they co-counsel[ were to Daniels.” Brief ] the and that according at 31. to the important, of Commonwealth Most Commonwealth, is the Drost consulted Dr. Tepper fact that may that Mr. not have to trial and “while Houston prior via Dr. mental health investigated Tep- Daniels’[s] personally clearly Mr. Id. at 33. The his co-counsel Drost did.” per, Houston, once he assumed the argues that Commonwealth defense, take the redundant required step was not to Drost. contacting Dr. after he was contacted For Tepper reasons, that argues similar the Commonwealth Houston’s from Daniels was present testimony Jacqueline decision not to ineffective, through the counsel presented not as information content; similar in Jacque- Daniels’s was great-grandmother line account would have been redundant. Daniels’s contends that “more” producing
The Commonwealth also testimony history of the same basic life carried a background jury” it could have led the alienating “substantial risk as Instead, to that irredeemable. believe Daniels was claims, by presenting counsel struck balance Commonwealth the nega- of Daniels’s without background repeating evidence tive information “ad nauseum.” Commonwealth, event, any according
In Daniels was ineffectiveness. prejudiced by alleged not counsel’s Com- that of mixed argues Tepper’s diagnosis per- monwealth Dr. not sonality and would drug dependency disorder Furthermore, phase. the outcome of the changed penalty *58 the and mother. Daniels adds that suicide of his older brother “stunning” had a him and impact everything on that fell apart Daniels, Brief of Appellee thereafter. at 17.
Daniels further notes that some of information this was Drost, Mr. gathered by yet presented Mr. Houston never Furthermore, information. counsel failed perform any type to instead, of psychological profiling, says, but Daniels chose to intervention,” on an rely strategy. “divine ineffective Daniels further that argues rely counsel’s decision to post-incarceration achievements when there avail- readily was able life history evidence then inadequate. was Daniels avers that the court correctly PCRA concluded that trial counsel did not fully investigate the available mitigation evidence and then Instead, make a reasoned strategic decision. counsel failed to properly for the prepare penalty phase. Strickland, Daniels
Finally, turns to prejudice, arguing that his traumatic life experiences lasting resulted in psychological effects. He notes that the prosecutor argued jury that there was no mitigation evidence offered other at trial than that “possibility may N.T., he have gotten religion.” 11/13/89, court, at 122. Echoing the PCRA Daniels asserts that the evidence he produced at the hearing PCRA would have profile altered sentencing presented jury. Daniels contends jury also that the fact that the unanimously found the catchall mitigator does not disprove he was prejudiced, since the jury may the mitigating accorded weight circumstances much greater exposed had it been to the reasons, his life. For these circumstances of mitigating full was ineffective for failing Daniels that trial counsel concludes evidence, investigate present mitigation additional the proceedings. would have altered the outcome of which decision, of we will assume counsel’s purposes For debatable); (although point was deficient performance however, has we that Daniels established persuaded are addi- by produce he was counsel’s failure to prejudiced pro- the lines of what was mitigation along tional evidence of hearing. presented at the modicum duced PCRA Counsel background, to the of Daniels’s troubled but jury evidence life, mixed it with an evidence on some his successes an responsibility, apology, with an acceptance combined religious point conversion—a no doubt evidence Daniels’s understandably jurors, point impor- with and a many resonant repeated Daniels himself that he it at enough tant returned a unanimous verdict hearing. PCRA still By way comparison, of death. of immediate additional hearing at the PCRA was not so mitigation evidence adduced or co-defendant significant proffered different as that Thus, Dr. Tepper Pelzer in his own collateral presentation. personality that Daniels suffered from mixed disor- opined abuse, precise not as or testimony der and substance testimony Krop, as of Dr. Crown or Dr. and it is certain *59 to see it have altered the outcome of the difficult how could ini- For Dr. penalty proceeding. example, although Tepper there evidence the tially support testified that was Section (e)(3) he that view cross-examination. mitigator, retracted in school records to Similarly, there was no evidence Daniels’s warranted, any mental health that suggest significant history Instead, Daniels required, investigation. appeared or further academically emotionally: a he good to be student both year college. a he attended a of high graduate was school probability not there is a reasonable persuaded We are the jury, juror, the one would have concluded that any or combined the hearing, evidence for the PCRA -with produced a jury, made to the warranted mitigation already available (e)(2) and, mitigator mental health existed finding evidence, with considered the other relevant warrant- penalty prison. ed a verdict of life in
Additionally, although Jacqueline testimony Daniels’s at the hearing greater PCRA offered into Daniels’s insight troubled childhood, the fact was already remains similar evidence presented to the Daniels’s jury: great-grandmother testified course, that Daniels’s was cruel beat father him. it is Of theoretically possible juror that a or two would given mitigator weight catchall some additional if Ms. Daniels had testified, but the must question Court answer whether testimony by Jacqueline additional Daniels and Dr. Tepper weighty point was where there enough is a reasonable juror probability may against that one have decided of imposition penalty. the death trial, on the Based record the PCRA and the proceedings simply we cannot conclude that such a probability reasonable existed. The aggravating circumstances demonstrated that man, Daniels was involved in a actively plan young kidnap adult, not an yet for ransom. The victim died as result of cohorts, conduct Daniels and his but only after having been cruelly confined the trunk of a twenty-four car for hours, tied up and a sock with stuffed his mouth. Given the mitigation already case in presented the jury emphasizing both Daniels’s troubled well childhood as as positive attributes conversion, and his religious and the substantial evidence in aggravation, we do believe that marginal additional mitigation produced evidence at the PCRA hearing suffi- cient to establish a reasonable probability that the result of the penalty phase would have been different. Under these circumstances, we cannot conclude that the mitigat- additional ing evidence undermines confidence in the jury’s verdict. The summary PCRA court’s respecting conclusion prej- Strickland stand, udice to the cannot contrary and it is hereby reversed. Y. DANIELS’S PENALTY ADDITIONAL
PHASE ISSUES Having concluded that PCRA court’s award a new *60 penalty phase Daniels on the mitigation evidence issue must penalty- additional reversed, Daniels’s we now address be court rejected by the were all of which phase arguments, below.
A. Daniels briefing, phase cross-appeal penalty In his the trial objected should that trial counsel argues first Daniels instruction. torture unconstitutionally vague court’s aggra torture that the recognized has that the Court argues ap an absent unconstitutionally vague vating circumstance Daniels, the defi According to instruction. limiting propriate apply court could the trial by given nition of torture of narrow the class failed to murder case and any virtually of the in violation penalty, for the death eligible persons (citing at 62 Daniels Appellee Brief of Amendment. Eighth 108 S.Ct. Cartwright, 486 U.S. v. Maynard had counsel (1988)). that trial Daniels contends L.Ed.2d 372 he further object to the instruction failing for no reason jury as the the failure by prejudiced that he was contends aggravator. the torture found has the Court briefly responds
The Commonwealth instruc- torture materially identical approved repeatedly that similar argument rejected in other cases tions Thus, the Common- unconstitutionally vague. are instructions was not ineffective trial counsel wealth concludes instruction. to the torture challenge to make a baseless failing case law established that prior court held The PCRA separating instruction limiting give court must trial It then concluded to torture. kill from the intent intent to informed the in this case the trial court by instruction that the simply than must be more infliction of pain that the infliction that the it stated murder when associated with pain heinous, atrocious, cruel.” or “unnecessarily must be pain court that the trial Furthermore, believed PCRA immediately intent separate principle addressed instruction. the torture after giving intent explaining *61 268
The trial relevant jury regarding court’s instruction torture reads as follows: torture,
Now, a as to torture is the intentional infliction of amount of on the pain suffering considerable and victim heinous, unnecessarily which is atrocious or cruel manifest- Now, meant, a ing depravity. “intent” is exceptional by certain person intends a matter if he does or consciously object, about a object. intends to do a certain certain bring Now, be or may by by intent shown words acts or conduct of the parties involved.
N.T., 11/13/89,at 150. The trial jury court also instructed the that the of proving Commonwealth had the burden the aggra- vating beyond a circumstances reasonable doubt. Id. at 152.
In Pennsylvania, we have
defined
generally
indeed
torture as “the infliction of a
amount
pain
considerable
of
and
atrocious,
heinous,
on a
which
suffering
unnecessarily
victim
is
or cruel manifesting exceptional depravity.” Commonwealth
Nelson,
(1987).
262,
728,
v.
514 Pa.
523 A.2d
737
We further
require a trial
to define
for
jury
court
torture
when the
torture
is at
“in
aggravator
issue
order
channel the sentenc
objective
er’s discretion
clear and
provide
standards that
specific
guidance
and detailed
process
that make the
reviewable”;
a
of
imposing
rationally
sentence
death
a jury
cannot simply be directed to determine whether the victim
was
tortured without
definition
the concept.
of
Common
Stevens,
171,
507,
(1999);
wealth v.
559 Pa.
739 A.2d
524
see
Nelson,
737;
Wharton,
also
523 A.2d
v.
Commonwealth
530
710,
(1992).
Pa.
607
723
A.2d
The focus of Daniels’s
that
the trial
argument
supposedly
instruction,
provided part
the relevant
but not
all, since it failed
specifically
jury
inform
that in order
to find the
aggravator
defendant must have the specific
torture,
intent to
is distinct
the intent
which
from
to kill. See
Stevens,
(Commonwealth
269 Nelson, the torture explained aggravator In Court kill more than an intent to in order to necessarily require must “Implicit muster. in subsection 8 [torture constitutional pass intent to cause requirement pain is the an aggravator] Nelson, intent A.2d at in addition to the to kill.” suffering failing erred in Daniels trial court argues 737. an requirement to a additional instruct as But, in to inflict specific pain suffering. intent separate Daniels overlooks the Nelson forwarding argument, given cited the instruction approval then with Court Pursell, (1985), A.2d 508 Pa. in Commonwealth v. *62 is urges the distinction that Daniels now which did make instruc- Court described the trial court required. Pursell in that case: tion of defined torture to the as follows: “One
The Court they the Code in that the say them is model Penal which or committed means of torture is de- by offense murder amount for the defendant who causes a considerable signed language used for this pain particularly of that especially was hei- circumstance the murder aggravating nous, atrocious, manifesting exceptional depravity. or cruel Also, I felt in may appropriate trying another that be place in you Reports. for torture was the American Law to define act, These that since murder is an intentional reports stated determined, many regarding courts have murder torture, a intention that torture murderer has in specific It held this is an committing the homicide. has been pain intention to inflict or both and suffer- pain, suffering ing.” against present argument, A.2d at 197 n. 13. As Daniels’s
495 materially case indistinguish- the instruction issued in this was Furthermore, from the one in Pursell. we given able more that the instruction here recently given indicated of type it was See given. statement of law when proper was Brown, 272, 961, 567 786 A.2d 966 v. Pa. Commonwealth (2001) in v. (citing with instruction Commonwealth approval (1989), Thomas, 256, 699, A.2d was 522 Pa. 561 709 which here). in its entirety to given similar instruction Viewed 270 context,
in in case accurately explained instruction this what required support finding aggrava- to the torture tor, object be for failing and counsel cannot faulted to to it. As Daniels has not established that trial counsel was ineffec- failing object charge, tive in to the claim layered ineffectiveness also fails.
B.
trial
Daniels next contends that
counsel was ineffec
tive
failing
object
for
the trial court’s instruction regard
9711(d)(5).
witness
ing
aggravator, per
elimination
Section
that,
(d)(5)
face,
Daniels contends
on its
aggravator is
applicable only
killing
prosecution
to the
of a
witness in a
He
pending
finds
proceeding.
support
proposition
this
539,
(1987)
Crawley,
Commonwealth v.
Pa.
526 A.2d
Caldwell,
v.
and Commonwealth
Pa.
The Commonwealth “any” grand jury but or limiting, is not so applies statute Furthermore, ar- the Commonwealth proceeding. criminal that Daniels on notice gues Appel put that the Court’s decision (d)(5) in could witnesses aggravator apply potential the by as as it was proceedings, long supported criminal future *64 a animus,” i.e., remove the victim as the intent to “requisite witness, was further pending present. explained, Court however, that where the evidence that the suggested purpose witness, of the was to eliminate a future killing potential as (d)(5) was the case in then the Appel, aggravator could be that, properly invoked. The then while the explained Court aggravator supported by could be circumstantial evidence if the murder was of a in pending proceeding, witness a of a in killing potential witness a not-yet-pending proceeding required support by direct evidence. 539 A.2d at Appel, See 784 n. 2. case,
In this
our
is
to the
analysis
propriety
limited
of the
instruction,
trial court’s
as the
sufficiency of
evidence
supporting the aggravator
already finally litigated
was
Daniels,
direct appeal. See
C.
Daniels next
forwards
claim based on Common
Lassiter,
(1998)
wealth v.
Pa.
273 that clari- merely Daniels Lassiter accomplices. argues mere it, the discussion in change and did not as fied the statute on the sub- pronouncement was this Court’s first Lassiter (d)(6) that, then contends aggravator. of the Daniels stance in v. trial, the Court Enmund Supreme to U.S. prior 3368, (1982), Florida, 782, 102 73 1140 458 L.Ed.2d U.S. S.Ct. aggravator a perpetration felony that a in the killing held a only where the evidence demonstrated that apply could attempted either killed or to kill felony in a murder participant victim, killing take or that lethal place, the or intended that a Enmund, Daniels, under an According force be to employed. jury capital culpa- to inform the that required instruction was desire, i.e., must on the an bility accomplice’sproven be based intent to about the victim’s death. bring even if reflected a
Daniels also contends that Lassiter law, in such rule would not bar relief here change the he Drost that discussed with Attor- Attorney because testified (d)(6) not theory aggravator Houston a the could ney failed to yet object. to an Houston apply accomplice, Thus, trial on notice of the says, put Daniels counsel (d)(6) viability challenge aggravator. of a to the Daniels then arising object maintains from the failure prejudice that the Finally, negate aggravator to and is self-evident. Daniels for failing counsel was ineffective appellate contends that appeal. raise the record-based issue on direct in primary arguments The Commonwealth forwards two First, contends that there was response. the Commonwealth not Daniels was a in the murder and principal evidence that opinion in merely proof an as this Court’s accomplice, citing we that “the jury first where stated appeal, collateral based upon that both actors were principals could found evidence both men inculpated the evidence ... presented jury believed.” shooting on whose version of the depending Pelzer, Second, 963 A.2d at n. 17. Daniels and must be notes that counsel’s effectiveness Commonwealth in effect the time of trial. At evaluated the standards at using decided, here, had to be and trial yet the time trial Lassiter may any Lossiier-type objection counsel have concluded Indeed, been would have futile. the Commonwealth notes defendant, that the Court has of a upheld sentencing prior Lassiter, (d)(6) where the aggravator found based liability. Brief of accomplice See Commonwealth at 56 1191, 1239 (citing Spotz, Commonwealth v. Pa. 896 A.2d (2006)). ruling PCRA concluded Lassiter law change
constituted and that counsel cannot be failing ineffective for predict change. PCRA court 1238-39). opinion, (citing 896 A.2d at Spotz, According- ly, the court trial determined that counsel was ineffective *66 (d)(6) object to to the failing aggravator. the
Although members of the Court have not all been of one issue, view on the the PCRA court’s conclusion was consistent law, with this prevailing concluding Court’s case that Lassiter change Cox, reflected a in the law. See Commonwealth v. 603 (2009). 223, 666, Pa. However, 983 A.2d the wrinkle here is the Attorney fact that Drost testified that he had a conver- trial sation with counsel in which he outlined a possible (d)(6) Nevertheless, the challenge to aggravator. even assum- ing that Drost’s could be conversation construed as enough to obligation an on trigger part, counsel’s the instruction that given in actually this case raises no concern under Lassi- ter.
The has explained Court that Lassiter jury involved instruc- (d)(6) tions related the aggravator given that were in the voice, i.e., passive the “killing was committed in the perpetration of a felony.” Rega, Commonwealth v. 620 Pa. (2013) (citation omitted). 70 A.3d Such concerns raised, however, are not the when instruction tracks the the statute language of and advises the the jury that aggrava- tor when the applies “defendant committed a killing while in the of a as perpetration the court has felony,” “conveyed the essential in information an understandable form.” Id. case,
In this the trial quoted language court the of the (d)(6) statute instructing jury when the with regard the aggravator, stating aggravator that the when applied “[t]he of a while the killing perpetration committed Defendant N.T., 11/13/89, argument 150. Daniels’s current felony.” jury of the instruction acknowledge language does that the not and, instead, focuses language the of the statute tracked argu- the His pull trigger. he himself not the fact that did found jury only that the could necessarily ment assumes of Daniels him an because that fact. accomplice liable as the there was no indication that further contends that because “shooter,” this jury actually principal found him to be evidence, without analysis an trial perform Court cannot that it is jury’s function. Daniels concludes usurping to how review to as speculate this role on collateral Court’s have determined the facts. could jury Commonwealth, however, its own version proffered The case in facts, theory with its own of the providing jury As in the Common- Rega, which Daniels was principal. strength its own case was entitled on the rely wealth the trial Additionally, the fact that pursuing aggravator. this jury charge, requiring gave appropriate ie., Daniels, Defendant,” minimized uncer- any find “the trial counsel ineffectiveness Id. at 794. issue of tainty. claim of counsel appellate merit and layered without fails. necessarily ineffectiveness
D. *67 was inef appellate next contends that counsel Daniels “life he entitled to a to raise a claim that was failing fective for Car to Simmons v. South means life” instruction pursuant (1994) 154, 2187, 129 133 olina, L.Ed.2d 512 114 S.Ct. U.S. his trial. Daniels avers a case decided after (plurality), into the injected dangerousness future the Commonwealth as him on questioned when it cross-examination proceedings something about testimony to said direct “you whether you You hope back out on the street. still wanting go to will do you are back out there on street going go N.T., do, you right?” sure you can to make everything Daniels, this line of 11/13/89, questioning According at 68. Daniels upon threat release. implied that he would impose further argues that the Simmons claim became available because it was decided during direct appeal proceedings, thus, counsel appellate should have raised a claim of ineffectiveness related to trial counsel.
The Commonwealth responds that the brief exchange cited by Daniels did not amount to placing Daniels’s future danger- event, ousness at issue. In any according to the Common- wealth, case, Simmons is inapplicable to this as it was decided nearly years trial, five after the it announced a new rule of law, and trial counsel cannot be held ineffective for failing to anticipate 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 defen dants whose trial completed prior to the decision. Com Fletcher, 493, monwealth v. 759, 604 Pa. (2009); 986 A.2d Commonwealth v. Ly, (2009). 602 Pa. 980 A.2d Daniels attempts to application avoid of this principle by placing the ineffectiveness at the feet counsel, of appellate 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 agree because we with the Commonwealth and the PCRA court that the brief exchange did not implicate Daniels’s future dangerousness. Instead, context, when read in the question merely suggested that Daniels’s guilt phase testimony was inconsistent with his statement, police lie, i.e., intimating he would “do every thing” that he could to get back on the streets. Appellate counsel obliged was not context, read the exchange out of or to torture the language exchange order to manufac ture an appellate issue. Accordingly, this claim of appellate counsel ineffectiveness fails.
E. Daniels next argues that trial counsel was ineffective for failing object *68 joint to the penalty phase proceeding.
277 Daniels, the not joint sentencing comport did According by the sentencing” the “individualized mandated U.S. with continues, Furthermore, Daniels severance Court. Supreme case the defenses warranted in this because particularly blamed the other for the antagonistic were defendant —each shooting. additionally argues greater quality that Daniels Pelzer mitigation of evidence offered harmed quantity him, not especially give repeated since trial did sentencing instructions on individualized determinations. that “individualized sentenc- responds Commonwealth does mean that was entitled to a ing” separate not Daniels Instead, the phase merely term means penalty proceeding. was entitled to a determination of sentence Daniels based on his individual characteristics and the circumstances case, presented of the crime. In this Daniels and Pelzer penalty arguments. evidence Additional- separate phase different ly, appellees argued application mitigating specifically circumstances and the trial court instructed the findings. had to make two distinct The Com- jury they hostility asserts between co- alleged monwealth also Indeed, the Common- require defendants severance. does that the fact that argues wealth that this Court has indicated facts is reason conflicting defendants have versions for, a joint rather than trial. against,
The PCRA court held that were sentenced individ- appellees arguments and ually and both evidence. presented separate mitigation The court indicated that different evidence was also specifically case and trial court instruct- produced each jury appellee separate- ed the to consider sentence each ly. determination.
We see no error in the PCRA court’s
that individualized
broadly
The U.S.
Court has
held
Supreme
to satisfy
in order
sentencing
required
capital
is
all
cases
Ohio,
586, 602,
Amendment. Lockett v.
438 U.S.
Eighth
(1978).
The Court has
98 S.Ct.
L.Ed.2d
sentencing
is satisfied
explained
further
individualized
to consider all of
relevant
permitted
when
*69
299,
evidence.
v.
mitigating
Blystone
Pennsylvania, 494 U.S.
307,
1078,
(1990).
110
conjunction
S.Ct.
In this appellees offered individual mitigating evi- dence. pursued Daniels four mitigating circumstances to the jury: prior his lack of criminal history, his mental capacity, his crime, at the age time of the and the catchall mitigating circumstance. pursued Pelzer four mitigating circumstances as well: prior his lack of history, criminal the fact that he was acting under extreme crime, duress at the time of the his age, and the catchall mitigator. Additionally, the trial court pre- sented 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 for a preference separate sentencing proceeding not the same as a right to such a case, In process. this he was accorded the individualized sentencing process is required by Eighth Amend- ment, and thus counsel cannot be deemed ineffective failing object to joint Moreover, to the proceeding. and for similar reasons, Daniels has not demonstrated Strickland prejudice. claim Accordingly, fails, this of trial counsel ineffectiveness as does the derivative claim related appellate to counsel.
F. Daniels next contends that trial counsel was ineffective for failing object to the prosecutor’s inflammatory closing argu- sentence cannot stand capital Daniels states that a ment. from comments which mislead when it results prosecutorial Ac- reasons. imposing impermissible into death for jury Daniels, argument directed prosecutor’s cording evidence and to focus mercy mitigation jury ignore factors, to the irrelevant such as comparison instead on religious Daniels avers mocked his prosecutor victim. activities, evidence as an “excuse” mitigation and dismissed his he contends that the Separately, prosecutor a “cop-out.” mercy by was not a jury to the that this case argued to “show the same imploring [Daniels] improperly Porter,” him to they “taking showed Alexander mercy *70 of trash.” ... and him out there like a park le[aving] piece the N.T., 11/13/89, the cumula- at 123-24. Daniels concludes that argument effect of the was to undermine prosecutor’s tive infect- concept mercy, evidence the mitigation derogate unconstitutional unfairness. sentencing phase the with ing in a prosecutor capital responds The Commonwealth may jury to urge case can be an advocate and murder in imposing evidence favor of reject mitigation a defendant’s Furthermore, con- the Commonwealth penalty. the death rejected claims chal- consistently this Court has tends that asking jury propriety prosecutor lenging showed to mercy the same that he capital show a defendant prose- The also contends that the his victim. Commonwealth was en- “jailhouse on Daniels’s conversion” cutor’s comment that the the evidence given suggested tirely appropriate he was arrested and incarcerat- only occurred after conversion for the instant murder. ed “within prosecutor
The PCRA court concluded that bounds,” prosecu- as within the of a scope reasonable it is was mitigat- applicability closing argument question tor’s the court concluded Similarly, circumstances. ing flair and mercy merely comment was oratorical prosecutor’s PCRA Slip Op., entitle Daniels to relief. See did not Freeman, 532, 573 827 A.2d Pa. (citing 16 Commonwealth v. (2003)). 385, 415 sound; PCRA court’s reasoning was counsel
cannot be deemed ineffective for failing
objec
to forward the
tions Daniels now identifies.
It is well-settled that a prosecu
tor in closing argument is afforded reasonable latitude and is
permitted
employ
oratorical flair in
arguing
favor of
death.
It is also not improper
prosecutor
for the
to urge the
view
jury to
a defendant’s mitigation evidence with disfavor.
Elliott,
See
236,
415,
Commonwealth v.
622 Pa.
80 A.3d
(2013);
Chmiel,
Commonwealth v.
612 Pa.
30 A.3d
(2011).
In order to constitute a deprivation of due
process, the alleged “misconduct”
prosecutor must be
of sufficient significance to deprive the defendant of a fair
Chmiel,
trial.
The Court has the prosecutor’s reviewed closing argu ment 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 rejected. should be The prosecutor urged to view *71 Daniels’s mitigation evidence with disfavor. This line of argu ment 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 not a case in [was] mercy which should be shown____Why don’t you show them the same mercy that they showed N.T., Alexander Porter.” 11/13/89, at 123. The prosecutor continued noting that appellees had taken everything important victim, from “then they when are done with him they take him to park, recognize 11. Saylor We expressed Mr. Justice contrary has view Freeman, point. J., on this (Saylor, See concurring A.2d at 418 and dissenting). lying him and left him place or another shot either there Id. has Again, 124. the Court piece like a of trash.” at there that it for the Com- multiple permissible on occasions held same to to the defendant the jury ask the show monwealth he showed the victim. mercy event, and Daniels’s coun- objected Pelzer’s counsel any
In objection. The trial overruled joined sel later have the opportunity that counsel would objection, stating to the respond prosecu- Daniels’s counsel fact did respond. jury mercy to exercise because argument, urging tor’s life, would incarcerated for the remainder of Daniels be Id. society. conversion of value religious and Daniels’s record, of trial counsel 141-14. On this Daniels’s claim claim of plainly appel- fails his derivative ineffectiveness necessarily fails. late counsel CLAIM CUMULATION
VI. of the Daniels that the cumulative nature Finally, argues him, he has raised warrant- prejudiced ineffectiveness claims three Daniels’s rejected new trial.12 This Court has of ing a lack on the basis of of solely prejudice: ineffectiveness claims Brady report, layered claim related to the forensic use claim from the trial court’s of the court Strickland arising next it re-instructed the crier to inform the that would be Strickland claim involving mitigation and the day, layered the penalty phase. evidence at of multiple if instances recognized
This Court has found, Strickland are the assessment performance deficient upon cumulation. See may properly premised be prejudice Johnson, v. 966 A.2d Commonwealth 600 Pa.
(2009). claims guilt grounds two on rejected phase We have rejected claim Brady Notably, the thus prejudice.” of “no cumulation, which would be relevant 12. Pelzer raises a similar claim assessing only prejudice we have guilt phase since affirmed However, Brady phase. only claim penalty of a new Pelzer’s award solely grounds report of an to the forensic was resolved related thus, prejudice, related there are no claims cumulate absence to Pelzer. *72 was a part small of a much claim greater faulting counsel for failing challenge cause of death—an argument forward- ed, discussed, thoroughly rejected during the first collat- appeal, eral as we have explained at length above. The layered crier, Strickland claim respecting mean- while, matters, did not implicate substantive and the potential minimal, for prejudice was if not non-existent. The only issue of any consequence resolved on prejudice” “no grounds was layered Strickland penalty phase issue related to mitiga- tion evidence. This thoroughly Court has discussed the issue above. Because the other claim resolved on prejudice grounds did not implicate merits of the penalty proceeding, there is Thus, material nothing to cumulate. this claim fails. VII. MANDATE reasons, For the foregoing the PCRA court’s order award- ing Kevin Pelzer a penalty new phase hearing, but denying relief, him guilt phase is affirmed. The PCRA court’s order awarding Henry Daniels a penalty new phase is hearing reversed and his PCRA petition hereby is dismissed.13
Jurisdiction in all four appeals relinquished. EAKIN, BAER, TODD, Justices join and STEVENS opinion.
Justice SAYLOR files a concurring and dissenting opinion. SAYLOR, Justice concurring and dissenting. I, II,
I join Parts and III of and, thus, the majority opinion in the affirmance of the denial of guilt-phase relief in both the Daniels and Pelzer appeals. join IV(A), I also Part which concerns the affirmance of penalty Pelzer, relief favorable to V(A) (D). as well as Parts I respectfully dissent with regard IV(B), to Part which concerns the reversal of the PCRA court’s award of penalty relief to Daniels. Prothonotary 13. The Supreme of the Court is directed to transmit complete Henry record of pursuant Daniels’ case to the Governor to 42 l(i). § Pa.C.S. *73 verdict, the appellee I with agree penalty the Daniels As to rendered deficient trial counsel that the PCRA and evidence dem- mental-health to failing present in: stewardship abandonment, trauma, and of childhood impact onstrating and behavior his personality of development upon loss closing in his entirely ignoring, and of mitigation;1 purposes which the limited evidence jurors, sentencing remarks to see history, life concerning appellee’s been presented had N.T., 13,1989, at 138-148.2 Nov. commented:
I have previously case, ready appended I a previous responsive opinion in a 1. In a evidence, developed upon the cross- of such example of the effective use expert. See Common- mental-health of a Commonwealth examination 105, (2004) 473, 490-92, Williams, 116-17 846 A.2d Pa. v. 577 wealth instance, J., forensic dissenting). For concurring (Saylor, and impact acknowledged profound psychological candidly psychiatrist fostering impulse poor deprivation, in terms of and trauma of childhood Although reasoning. insight, See id. judgment, and of control and lack may mitigation evidence explanatory this sort of may be observed that it that borne in mind by jurors, it must also be negatively some be viewed jurors to evade support of one of twelve only gain the need the defense 303-04; 254-57, 104 A.3d at Majority Opinion, at a death sentence. See 2543, 2527, 510, 537, Smith, 156 123 S.Ct. U.S. Wiggins v. 539 accord (2003). judgment the use of my considered It is thus L.Ed.2d 471 sentencing pro- capital mitigation explanatory evidence this sort ceedings consideration, to particularly as an alternative careful merits pursued as counsel arguments which Daniels’ generic the sorts of v. Se- generally Commonwealth See components presentation. of his J., 1108, (2012) 262, 343, (Saylor, 1156 55 A.3d pulveda, Pa. 618 ..., ("As it was well Appellant’s trial concurring) time of of the attorneys capital readily to defense training available in the understood capital essentially ubiquitous in issues are potential mental-health substantially cases, may deprivations childhood abuse and that behavior.”); v. Commonwealth cognition, and impact personality, 586, (2007) 4, 698, n. 4 927 A.2d 620 755 n. Washington, 592 Pa. J., (addressing "fairly widespread consensus dissenting) a (Saylor, life-history mitigation explanatory-type the sort of mental-health stage] post-conviction proffered Appellant [at presently evidence Brown, Pa. v. 582 mitigation”); Commonwealth can serve as effective 461, 521-22, J., (dis- 1139, (2005) dissenting) (Saylor, 872 A.2d explanato- mitigating evidence which cussing the difference between with attempts humanize the defendant only ry that which versus jurors). respects in the above develops, failures appellee counsel’s 2. As argument, follows: prosecutor’s as facilitated going argue to Now, the defense is mitigating factor that the last concerning the character mitigation any you is other evidence of his offense.... circumstances Defendant and the record of the The federal constitutional standard pertaining claims assistance of counsel places appellate ineffective courts difficult position where a trial attorney job. did not do his (and We are essentially whether speculate every each one one) individuals, of twelve having twelve unique mindsets know, which we cannot would have supported a death sentence, had an appropriate presentation been made. See Smith, 510, Wiggins v. 539 U.S. 123 S.Ct. (2003) [156 L.Ed.2d (explaining prejudice 471] is as- sessed according juror to whether a single might have balance); struck different accord 42 Pa.C.S. 9711(c)(l)(iv). § An appellate no-prejudice can finding mean that a capital defendant will never receive a single *74 trial in which he is represented by competent counsel. Indeed, such finding a is tantamount to a determination that adequate representation merely point, beside the since the defendant never stood a reasonable chance of a avoiding death verdict in any event. The decision is further compli- by juries cated the fact that do not return such verdicts in every capital case in which the defendant has committed a murder, heinous or even multiple killings.
I am most troubled the speculativeness inherent in no- prejudice determinations, in view of the volume of in cases (due which we being are required to undertake them to a lack of preparedness on the part members of capital bar)----[Until defense the preparedness and other issues addressed], are 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. Koehler,
Commonwealth
159, 227-28,
v.
614 Pa.
121,
36 A.3d
(2012)
J.,
162
(Saylor,
I
concurring).
find that these remarks
pertain equally
McCollum,
here.
30,
Porter v.
44,
558 U.S.
Cf.
447, 455-56,
(2009)
130 S.Ct.
curiam)
N.T., 13, 1989, Nov. at 122.
285 more than not altered the outcome’ of likely deficient conduct ‘a rather that he establish proba- but penalty proceeding, ” in outcome.’ sufficient to undermine confidence bility [that] (citation omitted; original)). alteration in V(B)
Next,
Part
of the
while
majority opinion,
relative to
has
settled
an
previously
Court
acknowledging
9711(d)(5)
“potential”
aggravator
extension of the Section
-witnesses, I have
reservations about
continuing
prosecution
broadly than the
construing aggravating circumstances more
will
In
support.
of the
statute
plain language
death-penalty
instance,
prosecution
statute
victim was a
says “[t]he
this
9711(d)(5)
added),
witness,”
§
but the
(emphasis
42 Pa.C.S.
an
“potential”
has extended these terms to
-witnesses via
Court
legislative
to be the underlying
allusion to what was believed
529,
2,n.
517
537
539
Appel,
intent. See
v.
Pa.
Commonwealth
(1988).
780,
analysis presents
2
This manner of
an
A.2d
784 n.
has
simply
applied
which the Court
strict
example
statutes,
1
see
Pa.C.S.
penal
construction
appropriate
1928(b)(1),
implemented
construction to be
narrowing
§
or the
statutes, see
v.
death-penalty
in relation to
Commonwealth
(“[I]n
(2001)
Stallworth,
349,
110, 124
373,
A.2d
566 Pa.
defining
category
persons against
context of a statute
death,
it is
a sentence of
such
permissible
impose
whom
the least inclu
construction should militate
favor of
strict
862,
Zant v.
U.S.
interpretation.”)
(citing
Stephens,
sive
2742,
(1983)).
gener
purposes aggravation capital punishment. aggravation The same is true for when prosecution “[t]he victim was a 9711(d)(5). § witness.” 42 Pa.C.S. interpretation A strict or narrow obviously such terms require prosecution would a relevant to have preceded killing. analysis employed Under the sort of Appel, Balter and in the field appears open judicial, to be policy-based wide extensions of the However, death-penalty reach of the governing statute. federal overlay constitutional clearly rules of construction delineated above, Legislature, as discussed forbid such extensions. Accordingly, my perspective it is considered that retrenchment is need- ed, defining the death-penalty according reach of the statute to its own terms, narrowly construed.
287 the point this is to stress reiterating concern my main reasoning Accord process. of strengthening importance note 3. supra V(E) reser- majority opinion, Part I have
Concerning of proceedings because joint penalty vations about conduct of and impact antagonistic spillover of of defenses potential See, v. State prejudice aggravators mitigation. e.g., 544, (Kan.2014) Carr, the con- 331 P.3d 717-20 (disapproving based such concerns joint penalty proceeding duct of a new, In of separate hearings). light my awarding penalty are for both hearings conclusion that new warranted penalty here; howev- question I do not consider this further appellees, matter, er, simply required I would supervisory as a of on remand separate, proceedings conduct individualized Daniels). (had prevailed as to my position V(F), the majority’s as to Part I denota- Finally, appreciate continuing prosecutorial practice my disapproval tion show the to a urging sentencing jurors mercy same Majority as to the victim. defendant was shown See capital 11, reasoning 280 n. at 318 n. is My 104 A.3d 11. Opinion, practice fundamentally the concern that such is based on statutory with the terms of the plain governing inconsistent scheme, designed punishment of death permit which judgments, of reasoned moral only upon rendering terms murders made on same lawless which decisions 1, Sneed, v. 616 Pa. are committed. Accord Commonwealth 1096, (2012) 38, J., (Saylor, dissenting); A.3d cf. 63, Spotz, v. 616 Pa. 47 A.3d Commonwealth (“In (2012) be J., my view, justice would (Saylor, concurring) served, con- protracted readily controversies more better tained, closely limit more if would themselves prosecutors law.”) the case of the governing the facts of in the context (citations omitted). notes Bruton viola- then that no occurs. Commonwealth regard with the admission tion could have occurred Separately, since he testified trial. Daniels’s statement were all argues remaining that the statements Commonwealth such other guy” with neutral terms as “the redacted properly names various co- or for the actual of the “him” substituted that the the Commonwealth avers Additionally, defendants. each statement trial instructed properly made it. against be used the defendant who only could
Notes
notes that he 5/10/02, N.T., 47. reviewing records. not recollect expert, that he did not retain mental health Padova admitted so if had the school may but he have done he indicated (The Id. at 49-50. opinion court noted in its records. PCRA that a examina- psychological that the school records reflected be him to age tion on Pelzer at and found performed disturbed; emotionally special he was in a placed socially notation.) court’s supports class. The record PCRA trial, Padova, did not testifying years over twelve after the he of his interviews investigation recall much
notes such at contact. 105. cross-examination, On Tepper Dr. noted that Daniels had fairly good achieved grades during grade 7th and 8th and grade, 10th and he specifically testified that he did not believe (e)(3) that met the mitigator Daniels criteria (regard- ing ability conform requirements one’s conduct to the of law). However, that, opinion Dr. reiterated Tepper his 9. Dr. O'Brien testified on of behalf the Commonwealth at the PCRA hearing in both cases. disorder, (Daniels) and personality his his “given makeup, his suffering ... he was from what is dependency difficulties disturbance.” Id. or described as extreme mental emotional 121-22, 125, 135. at Houston, out-of-state hired Attorney practitioner an hearing; did at the PCRA there family, appear Daniels’s not appellee’s is no the record for failure call explanation Instead, Drost. Drost Attorney him. Daniels called testified he and hired an discovery that reviewed available investi- in the Drost prior to Houston’s involvement case. also gator investigator Tepper, recalled contacted Dr. private that his of in capital that it was his normal routine explaining part that Tepper always cases. He further testified Dr. did report. interviewing Jacque- issue an Drost recalled expert Daniels, recall he had obtained line but did not whether Drost both the discussing Daniels’s school records. recalled Houston, specifically with and guilt penalty phase with Houston discussing upbringing remembered Daniels’s testimony types that out these offering “bringing be He not recall that Houston things mitigation.” would did ever him reason he did not that provided why present evidence, Drost that Houston’s was approach but “Mr. opined to his rely Drost also testified own upon Almighty____” i.e., mitigation presented that he would have preferences, abuse, evidence of Daniels’s childhood numerous upbringing, relocations, siblings during and the of his two death explained provided further that he all of penalty phase. Drost counsel, direct appeal his notes and relevant information to opinion he also counsel his adding conveyed appeal that I single job lawyering “this the worst had perhaps N.T., 12/12/01, 8-9, 12, 23-24, 50-51, and ever seen.” (redirect). hearing, discussing testified at the PCRA he Daniels time crime explaining had been “saved” since the of his religious his conversion. how activities furthered prison presen- penalty trial counsel’s opined PCRA
notes Drost knew of the deaths brother, of Daniels’s sister and that Daniels had times, moved numerous and that he lacked a male role model. The Commonwealth further notes that Drost hired a forensic (Dr. clinical psychologist to trial prior who Tepper), evaluated Daniels preparation penalty for the phase.10 This informa- tion provided to Attorney Houston when he took over the case. The Commonwealth avers that counsel then presented an adequate case in mitigation trial. The Commonwealth emphasizes just that Drost “was as much trial Daniels’[s’] Tepper diagnosed 10. Dr. personality Daniels with mixed disorder and noted, drug dependency. and alcohol report As there was no from Dr. Tepper produced testify for trial and he penalty phase. did not at the
notes Dr. testified at the Tepper Commonwealth PCRA or organic Daniels did have a mental illness hearing that damage, capacity appreciate brain and he had criminality to conform his conduct to the of his conduct and Additionally, of the the Commonwealth requirements law. Daniels was not argues testimony Jacqueline a determination that particularly persuasive, supported indeed, first Daniels a “normal” he was the of her child— school, he give any children from did not her graduate high school, or trouble and he attended college. trouble cause reasons, For these the Commonwealth concludes that testimo- Daniels, along the ny by Tepper Jacqueline Dr. lines of produced hearing, what was at the PCRA would not have outcome changed phase proceeding. of the penalty responds Daniels that trial counsel whitewashed his history trauma, of childhood abuse and events which shaped his at time of the murder. psychological functioning Daniels necessities, argues parents failed furnish life’s basic shelter, sustenance, love, such as support. emotional In- stead, at physical he suffered mental and abuse the hands of his father and witnessed similar abuse directed his brother
notes accurately The also direct evidence. Commonwealth clear the circum- aggravating the trial court made that by beyond had to be the Commonwealth stances established 152). N.T., 11/13/89, Additionally, (citing doubt reasonable had argues jury given been the Commonwealth “circumstantial evidence” definitions of “direct evidence” and guilt jury Finally, instructions. Com- during phase that the Court has held argues consistently monwealth (d)(5) since apply can witnesses aggravator potential in fact by that the sole case cited Daniels and stresses Appel, with aggravator consistently Appel. applied concluded that this issue was barred The PCRA court litigated appeal. it was on direct already because to the of a killing The trial court instructed as as aggravator witness follows: prosecution Now, was a whether not under number five—the victim or would on whether find depend you witness —it prosecution effect, direct evidence that Defendant by either/or Alex- in effect about the death of brought both Defendants the intent to a witness prevent being ander Porter with direct them case. must do this against They in this circumstantial evidence. evidence 11/13/89, N.T., at 150. explained the distinction between Appel Court Appel, stating Crawley circumstances Caldwell “superimposed” pending proceeding had earlier the Court (d)(5) in order to limit the aggravator onto the requirement where the of the to circumstances aggravator application