*1 light Temple for reconsideration Southard rior Court 335, 781 A.2d University Hospital, relinquished. Jurisdiction A.2d 558 Pennsylvania, Appellee v.
COMMONWEALTH ABDUL-SALAAM, Appellant. Seifullah Supreme Pennsylvania. Court Aug. 1999.
Submitted 31, 2001. Decided Dec. Sept. Denied
Reconsideration *3 Dunham, Abdul- Philadelphia, for Seifullah Robert Brett Salaam, appellant. Com., Keating, appellee. for the
Jamie Gen., Graci, Harrisburg, Atty. appel- A. Office Robert lee. CAPPY, FLAHERTY, C.J., ZAPPALA,
Before SAYLOR, CASTILLE, NIGRO, nd JJ. NEWMAN OPINION Justice NIGRO. appeals from the order
Appellant Seifullah Abdul-Salaam County denying Pleas of Cumberland the Court Common Post Relief Act petition for relief under the Conviction his (PCRA), seq. § For the reasons outlined 42 Pa.C.S. 9541 et below, affirm. we 15, 1995, guilty of first- jury found
On March
murder,
robbery
conspiracy
in connection
degree
Cole of the New Cumberland
shooting
fatal
Officer Willis
sentencing hearing,
jury
Department. Following
Police
circumstances it found
aggravating
that the four
determined
circumstance it found and
outweighed
the one
accordingly,
Appellant’s penalty
fixed
death.1 On June
judgment of sentence.
this Court affirmed
Abdul-Salaam,
83 pro se May on (1996). petition a then filed Appellant Education, Advocacy Legal and 13, for 1997. The Center (CLEADA) appointed represent to was Assistance Defense petition subsequently filed an amended PCRA Appellant Following hearing, the PCRA court Appellant’s behalf. on instant appeal.2 then filed the relief. denied Court, many raises ten issues his brief Appellant’s sub-issues. Most of contain several of which issues, however, purposes for of the PCRA. have been waived PCRA, petitioner eligible for relief under
To be matter, allegations that his establish, as a must threshold “if the allegation An is deemed waived not been waived. trial, to do it but failed so before petitioner could have raised trial, appeal....” 42 during unitary review Pa.C.S. [or] 9544(b). addition, applica the relaxed waiver rule is § Albrecht, v. capital appeals. to PCRA ble (1998). 693, Pa. 700 554 contends that: the Common
Appellant specifically Brady violation of exculpatory wealth withheld evidence (1963); Maryland, 373 U.S. 83 S.Ct. L.Ed.2d by process rights his due consum the Commonwealth violated the trial court erred ing sample testing; an blood entire failing that it could consider provide instructions background abusive under Pa.C.S. evidence 9711(e)(2) (e)(3), embody Pennsylvania’s which two § circumstances; process by which mental health engages proportionality review violates defen this Court dants’, including process rights; the trial Appellant’s, due juvenile by allowing Appellant’s adjudications court erred under 42 aggravating as a for the circumstance serve basis 9711(d)(9), significant § the defendant has a Pa.C.S. i.e. involving or threat of history felony convictions use violence; aggravating circumstance under Pa.C.S. relief, reviewing post-conviction When this Court denial "examining limited whether lower court's determination legal supported by the of record and whether it is free Morales, error.”
84 9711(d)(9)
§ unconstitutionally vague; and the improp- erly aggravating found the existence the circumstance 9711(d)(6). . Appellant § 42 Pa.C.S. could under have raised appeal each of these claims in his direct to this Court but and, so. Accordingly, failed to do these claims are waived therefore, beyond power of this review Court to under the 9543(a)(3).3 express § 42 terms the PCRA. See Pa.C.S. that Appellant argues also trial counsel rendered inef penalty phase fective assistance of counsel at his hearing. ineffectiveness, Because this claim is framed as one and adequately argued it is governing because under the standard claim, such this claim not for purposes has been waived therefore, and is PCRA reviewable. prevail
To alleging a claim counsel’s ineffective (1) PCRA, ness under must demonstrate (2) merit; claim underlying arguable is of that counsel’s any of conduct was without designed course reasonable basis interest; (3) his preju effectuate client’s that he was ineffectiveness, by diced counsel’s i.e. is a there reasonable that but act probability question for the or omission proceeding outcome of the would have been different. Com Kimball, 299, 326, (1999); monwealth v. Pa. 555 724 A.2d 333 226, 537 Douglas, Pa. particular If a reasonable basis exists for the course counsel, chosen ends inquiry performance and counsel’s Derk, constitutionally deemed effective. Commonwealth v. (opinion support of affirmance). petitioner finding by making
3. A can avoid a of waiver under PCRA adequate properly layered an claim of ineffective assistance of opportunity his first counsel at available to do so. Wallace, (1999). Appellant, in his final issue, allegation makes bald one-sentence counsel was failing litigate appeal. ineffective for the claims raised on Such undeveloped argument, meaningfully an which fails to discuss and claims, apply governing standard review of ineffectiveness simply satisfy Appellant's establishing does burden of that he is any entitled to relief. failing was ineffective claims organic and his brain his illness evidence of mental locate mitigation at his present such evidence as damage and merit,4 arguable we if this claim had phase hearing. Even had a reasonable agree court that counsel *6 hearing, At the PCRA presenting such evidence. basis for not presenting not men his reasons for specifically stated case, testifying particular in this mitigation tal evidence health that: or them begin person’s a actions excuse you to defend
When testimony, you hold expert use of mental health by the you essentially relitigating open to risk that are yourself today during your this cross-examina- the crime. heard experts Armstrong Dr. of the mental health [one tion of You if could tell by asked her she presented Appellant]. 19th, date specific August [the was a time on that there Cole], organic when shot and killed Appellant Officer defen- compelling disorder manifested itself brain actions, could. said she not and no one dant’s and she could prosecutor that that it often provides The risk of acts in a just not the defendant’s opportunity an describe context, example in almost a moral context. For factual but if was example, person this case as an a person taking if a — psychiatric brain or some organic afflicted disorder I’ve asked problem, or some mental health heard disease cases, with the repeatedly other isn’t this inconsistent of this goes perpetration that into the type planning person, fact Isn’t inconsistent with the that the crime? this where- according testimony, had the the evidence try escape? withal record, we we find independent
4. on an review of the note that Based PCRA testimony at the no error in the PCRAcourt’s conclusion that Appellant organic brain hearing that suffers from failed establish 11/12/98, damage any Op., other mental illness. See PCRA Ct. or brief, the As the Commonwealth observes in its defense organic testify experts as to when it, contracted health could not effect, any, damage, if it had on how he contracted or what brain Moreover, day was testimo- he Officer Cole. there him on murdered Rotenberg, Appellant, that ny Dr. also examined from Lawrence who not, damage. opinion, organic See brain Appellant does in his have N.T., 5/1/98, at 136. Isn’t this with the fact that inconsistent he returned to the perhaps open scene of the crime for no other than to reason this, particular, fire? In case like case impact testimony throughout emotional of the the trial was thought such I would it unlikely have that would factor, especially as a accept psychiatric mitigation one that outweigh really very devastating would emotional im- pact days testimony they just several heard. N.T., 4/23/98, Pirela, at 179-80. also (presentation of evi- dence of defendant’s troubled childhood might be viewed as murder). attempt testimony to trivialize brutal This suffi- ciently supports finding court’s counsel had a basis for presenting reasonable now claims counsel should have offered.5 sum, all but one of claims been waived *7 thus, and cannot be reviewed this Court. merit,
remaining claim is without that as we find the PCRA properly court that determined counsel did not render ineffec- at Appellant’s penalty phase hearing. tive assistance The denying order post-conviction of PCRA court relief is affirmed.6 therefore concurring opinions.
Justices CASTILLE and SAYLOR file Appellant also failing claims that trial counsel was ineffective for present evidence of the he abuse suffered as a child. This claim is specious light even fact that concedes that counsel presented testimony family of several who members described Appellant's upbringing. If suggesting abusive is that counsel family Appel- should have called additional members to reiterate that child, lant had been abused as a this claim as testimony also fails such merely Whitney, would have been cumulative. See Commonwealth v. (counsel 708 A.2d not ineffective for failing phase merely given call witness at who would evidence). addition, mitigating cumulative In note we that the Appellant's specifically background found abusive to be a circumstance. Prothonotary Supreme 6. The of the Court is directed to transmit the complete Pennsylvania. record of this case to Governor of l(i). § Pa.C.S. 971 CASTILLE, concurring. Justice join majority opinion exception
I with the sole of the sentence, majority first sentence footnote 3. petitioner proscription states can “avoid” the PCRA’s if “adequate properly on waived claims he makes an and layered claim of ineffective at his assistance counsel first opportunity to do so.” majority rejects The then the ineffec- here, tiveness claim purports apply made which to all of appellant’s error, underlying waived claims of trial it because undeveloped.
Although occasionally, our cases have impre- somewhat cisely, suggested that a claim of counsel ineffectiveness waiver, “avoids” or “excuses” in fact that is not the manner and, operates which the provide guidance to the bar, precise my bench would be analysis more of the claims, question. Waived such as the claims of trial error which appellant could appeal here have raised on direct but not, did are qualification waived without under the PCRA. 9544(b); Pierce, § Pa.C.S. (Pa.2001). counsel, A claim of ineffective assistance of hand, dimension,
the other is a distinct claim of constitutional which is itself specifically cognizable deemed under course, provided, the ineffectiveness claim PCRA— itself was not waived at an stage proceedings. earlier Id. matter, practical
As a claims of ineffective assistance of counsel are often “derivative” of claims of trial which error waived; i.e., alleged have been counsel have been for failing ineffective to raise a claim which perceived is now by subsequent upon review the record. See Com- Williams, (Pa.2001). monwealth v. n. 5& *8 is, indeed, That appellant alleged what has here as to his claims, waived albeit he in boilerplate does so fashion. Such ineffectiveness, successful, claim if could be said to “excuse” underlying the waiver of the claim in the limited sense that subject review, the event at trial will now be some albeit through guise of the standards governing claims of ineffec- tive assistance counsel. But it is essential to that it realize only claim which is version of the
is
the ineffectiveness
Pierce,
supra.
under the PCRA. See
recogni-
This
cognizable
ineffective-
important
is
because the Sixth Amendment
tion
govern
standards that
standard is distinct from the
ness
waived. As
underlying
might
claims that
have been
myriad of
in Williams:
my concurring opinion
noted
claim, which often is not
underlying non-cognizable
The
(for
many
example,
dimension
itself even of constitutional
instructions),
regarding jury
is
evidentiary claims or claims
analy
only
upon
it
Amendment
relevant
as
bears
Sixth
Morrison,
365, 382,
Kimmelman v.
477
106
sis. U.S.
(1986) (constitutional
2586-87,
2574,
91 L.Ed.2d
S.Ct.
Washington,
v.
standard under Strickland
ineffectiveness
(1984)
2052,
668,
Subject foregoing qualification, join majority I opinion. SAYLOR, concurring.
Justice join majority’s Appel- to affirm decision the denial petition for post-conviction only lant’s relief and write clarify my reasoning concerning denial of the claim of ineffec- pursue tive assistance of counsel in the failure to mental as a at health evidence circumstance phase of trial. that,
It in which my belief some cases the defendant’s issue, legitimately mental state is the defen- history expert psychiatric dant’s health evi- and/or potential carry weight has substantial dence with a and, establishing mitigating a circumstance corre- in terms to obtain to the Commonwealth’s effort spondingly, defense Rivers, of death. See Commonwealth sentence J., (2001)(Saylor, n. 1 n. 927 & & cases that dissenting).1 Certainly, there is also a risk some *10 may create an unfavorable presentation the of such evidence Thus, with jurors. charged trial counsel are impression and, in consul- collecting evaluating and the relevant evidence clients, reasoned, making strategic decisions tation with their whether, extent, hand as to and to what specific to the facts at put sentencing jury. available evidence should be before the above, however, I light of the do not believe the alone, proofs generalized health and inherent nature of mental may accompany presentation, said to their are risks be in weighing process review and the sufficient obviate the of a post-conviction upon proffer properly-sup courts the of for failure to ported claim of ineffective assistance hearing. present mental health evidence the Brown, 406, 425, generally Commonwealth v. 544 Pa. 1178, 1187 (allowing possibility post-conviction for the if “it can that an alternative not chosen relief be concluded substantially greater than the potential offered a for success Pirela, actually v. pursued”)(quoting course Commonwealth (1986)), denied, cert. 510 Pa. U.S. (1996); 1043, 117 614, 136 L.Ed.2d 538 S.Ct.
Williams, 207, 245-49, 1187-90 circumstances, Therefore, supported provi in such and, hearing correspondingly, a post-conviction sion of requirement adequate findings legal factual conclusions See, id.2 post-conviction e.g., court. Indeed, case, present opened analysis in the PCRAcourt its of the 1. authority necessary pertinent claim "No is for the rather as follows: proposition that where one's criminal results from a obvious conduct defect, though might even it to the level real and serious mental not rise defense, of a that criminal conduct becomes easier to understand and ought, arguably, mitigated." any penalty for it to be necessary every suggest post-conviction hearing in I do not that a presented pursuant capital case in which this form of claim is — rules, hearing necessary only policy in a where sound as reflected our dispute pleadings and essential affidavits establish a material factual case, hearing majority Despite fact of such mental health issue disposition penalty-phase, its rests post-conviction upon passage from counsel’s primarily which, merely generalized testimony large part, identifies of mental health evi- presentation risks associated with response to a Notably, testimony such was offered dence. dangers in question concerning presenting mental general (“The presenting danger you described health issues issues, dangers?”); does what are those certain mental health specifics take account the available mental not into case at or reflect the pertinent to the issue health evidence potential benefit vis-a-vis other available weight attendant defenses; represent not the sum and substance and does for health evidence pursuing trial counsel’s reasons If these sorts of penalty phase present at the case. presentation about the of mental health generalized concerns provide own can said reasonable their be present mental failing investigate health basis and/or *11 in a need for a mitigation, rarely would be there issue, hearing apply on will this since these considerations present virtually capital by As demonstrated the n every case. however, course appeal, not been the chosen has Hess) (here, A. judges the Kevin careful PCRA Honorable who, circumstances, have undertaken the neces- appropriate Thus, through weighing sary sifting task of the evidence. my to as- additional considerations are critical following present appeal. sessment post-conviction hearing, initially
At it was disclosed profession- trial counsel had contacted several mental health als, unwilling to who or unable examine were contemplation presentation of a at the defense Trial phase ultimately of his trial.3 counsel obtained referral generally concerning viable a central element of a claim. 909(C). R.Crim.P. process engagement provides de- 3. Trial in this alone some counsel's underlying, strategy-based an gree support for the conclusion that forego grounded presentation of mental assessment the decision to sentencing jury, mere opposed as default on health evidence to the part of trial counsel. Carolynn to Dr. Crutchley, psychiatrist, but later decided not to Appellant. allow her to examine In his testimony, initially action, refused disclose the basis for this citing attorney-client privilege on questioning by the Com- monwealth:
THE you’re telling COURT: And you me that cannot question
answer why [the mental health evidence was not presented] doing without attorney violence to the client privilege?
THE WITNESS: don’t believe I can. Trial inquiry counsel later invited from PCRA counsel as to (“I strategy his have a very recollection about a specific thing discussed, that Dr. Crutchley and I which I will you you tell if asking so”), are me to do but PCRA counsel avoided the asking. Ultimately, questioning by Commonwealth, PCRA court directed trial counsel to his strategy disclose following passage:
Q: specific thing What was it you and Dr. Crutchley
discussed that you caused you not to use her? —convinced A: I think I would attorney have disclose client— THE COURT: And I think on this according narrow issue waived,
to the law it is and I you will direct to answer it. [PCRA As to what Dr. Crutchley cnsl.]: told him? Yes, THE why COURT: as to opted he not to pursue the mental health defect that is at very heart this case. You don’t tell me the your said, words that client but underlying what was the reason?
A: As I understood what Crutchley Dr. and I were dis-
cussing, things one of the that was important to her was whether there were or going were not expressions be *12 of remorse. way That’s the I recall our conversation. Q: No questions, further Your Honor. else, Nothing
[PCRA cnsl.]:
Your Honor.
upon
Based
this testimony, the PCRA court found:
[Trial
was concerned
counsel]
with the interaction between
[Appellant] and
expert,
the defense
Crutchley.
Dr.
When
requested that she
Crutchley,
Dr.
he
counsel met with
trial
petitioner
with
out
fear
itself
discuss
crime
not
enough.
appear
not
remorseful
[Appellant] would
request,
with
comply
could not
this
Crutchley
Dr.
When
testimony would be
that her
counsel became concerned
helpful.4
harmful than
more
potentially
footnotes,
rejected
court
majority
also
As the
testimony
favor of that offered
expert
Appellant’s
from
did not suffer
the effect
serious
defect.
requisite credibility
court made the
the PCRA
It is because
this case on an ade-
specific
judgments
assessments
record,
Appellant failed to
concluding that
quate
properly
am
light
findings,
of such
satisfy
proof
his burden of
disposition.
majority’s
in the
join
able
No. Docket Pennsylvania. Supreme Court Oct.
ORDER PER CURIAM. NOW, October, Rubin- day of B.
AND this 10th Joel in the practice of law having suspended been from the stein strategy explanation remains undevel- 4. The actual for trial counsel’s record, from permitted counsel was to refrain oped on the since Appellant. disclosing This defi- the details of his conversations however, benefit, he bore ciency since cannot redound to proof post-conviction stage. circum- at the these the burden stances, possible satisfy burden simply it was attorney-client concealing utilizing critical facts the shield while questioning. privilege and course of artful imposed subsequent use of Notably, limitations on this Court has appropriate circum- testimony trial counsel in post-conviction from Chmiel, stances. See Commonwealth