*1 24 A.3d319 Pennsylvania, Appellee COMMONWEALTH of v.
Ralph BIRDSONG, Appellant. Pennsylvania, Appellee Commonwealth of
v.
Ralph Birdsong, Appellant. Pennsylvania, Appellee Commonwealth of
v.
Ralph Birdsong, Appellant. Supreme Pennsylvania. Court of
Submitted June 2003. May
Decided
213 Berkowitz, Ñolas, Ellen Billy Horatio David Warren Wycoff, Philadelphia, for Ralph Birdsong. Jr.,
Hugh Office, J. Burns Philadelphia District Attorney’s Philadelphia, Amy Zapp, Harrisburg, Commonwealth of Pennsylvania. CASTILLE, C.J., SAYLOR, EAKIN,
BEFORE: BAER, TODD, McCAFFERY, MELVIN, ORIE JJ.
OPINION Justice EAKIN.
Ralph Birdsong from appeals the order denying petition for relief pursuant to the (PCRA), Post Conviction Relief Act 42 §§ Pa.C.S. 9541-9546. We affirm.
Appellant was with charged first degree murder and related offenses for fatally shooting two people, seriously wounding others, six and raping a teenage girl a brutal during incident 17,1988.1 July on right waived his to a jury at both guilt penalty phases was tried jointly with his brother Anthony, who was his co-conspirator. The trial court convicted appellant murder, of two counts of first degree six assault, counts of aggravated and one count rape, each of involuntary intercourse, deviate sexual conspiracy, and posses- sion of an instrument of crime.2
At the penalty
phase,
trial court found no mitigating
circumstances3 and two aggravating
42
circumstances:
Pa.
underlying
1. The
facts are detailed in this Court’s decision on direct
appeal.
26,
Birdsong,
See Commonwealth v.
538 Pa.
650 A.2d
28-
(1994).
30
crimes,
Anthony
was convicted
except rape;
of the same
he received
2.
two consecutive life
aggregate
sentences for the murders and an
con-
years
secutive
imprisonment
sentence of
to 85
for the other
Superior
offenses. The
appeal.
Court affirmed on direct
Common-
(Anthony) Birdsong,
(1990)
Pa.Super.
wealth v.
Appellant 17, 1996. counsel, petition filed an amended October new who 1997, and petition, filed another amended In April, interim, In the the trial to dismiss. moved Commonwealth for the PCRA died, appointed a new judge judge Sep- between Following evidentiary hearings proceedings. 2000, issued a tember, the PCRA court January, 1999 and meritless; as appellant’s petition to dismiss notice of intent 26, February petition the court dismissed 2002, 26, this on Court appeal;4 April filed this Appellant of an opinion, court for preparation remanded to the PCRA jurisdiction. In retaining but briefing schedule tolling 2002, a motion this Court requesting filed August, appellant to include a new claim under of the remand expand scope 304, 2242, 122 153 L.Ed.2d v. 536 U.S. S.Ct. Virginia, Atkins (execution (2002) criminals violates mentally retarded 9711(e)(8) mitigation (any § evidence of impaired) 42 Pa.C.S. other concerning and circumstances of and record of defendant character offense). history underlying appeal is somewhat procedural this collateral 4. The dismissing alleged he never received the order convoluted. 2001, 6, requesting April petition and filed several documents his PCRA pro appeal tunc. appellate rights and leave to nunc of his restoration filings petition, which it court deemed these a second The PCRA 11, untimely April day, next filed 2001. The dismissed as 26, dismissing February 2001 order his first appeal from the notices of 11, dismissing petition. April his second petition and the 2001 order however, appeals; disputed the timeliness of these The Commonwealth Thus, quash. we motions to denied the Commonwealth’s this Court 26, claims, February only pertain to the which will consider petition. of his first PCRA 2001 dismissal Amendment), Eighth which this Court granted. The briefing resumed, schedule and the case was submitted decision 4, June 2008. When no PCRA court opinion had been filed as directed, this Court again remanded to the PCRA court on 19, 2003, November for preparation of an opinion, citing Brown, Commonwealth v. 574 Pa. 830 A.2d (2003) (“In capital, post-conviction appeals, this Court has recently emphasized the of ... necessity an adequate written opinion of the PCRA court ... ... as necessary provide essential predicate for appellate review of the post-conviction Court.”). proceedings by this
The PCRA court 25, 2004, filed an opinion March in which it addressed all of appellant’s issues except claim, for the Atkins parties noted the agreed to further continuances until the *11 General Assembly issued legislation regarding objective what facts be should used to determine the prevailing standards of competency the degree and of mental retardation which would prohibit imposition of the death penalty. Opin- PCRA Court ion, 3/25/04, at 8-9. The court adopted the American Associa- (AAMR)5 tion of Mental Retardation’s definition of mental retardation, as set forth in the American Psychiatric Associa- tion’s Diagnostic and Statistical Manual of Mental Disorders (4th ed.1992) (DSM-IV), but did not address the merits of claim, appellant’s Atkins instead advising parties to pre- pare any defense testimony on the issúe of mental retardation. 3/25/04, PCRA Court Opinion, at 9. 23, 2004,
On June a hearing was held before the PCRA court; the Commonwealth argued appellant’s Atkins claim was not properly before the PCRA court because this Court jurisdiction. had retained N.T. Hearing, Status at 4- 6. The court agreed, PCRA and dismissed the claim without Id., Thus, prejudice. at 6. there was no lower court ruling on the merits of appellant’s Atkins claim. Miller,
This Court then decided Commonwealth v.
585 Pa.
144,
(2005),
217 evidence favorable to accused violates due process where evidence is material or guilt punishment, irrespective faith). prosecution’s good or bad
Brady Claim Appellant argues the Commonwealth withheld material evi- defense, dence favorable to the in violation of He Brady. (1) claims the Commonwealth failed to disclose: Common- wealth witness Andre Kinard was offered immunity from unrelated criminal charges for his exchange identification (2) testimony against appellant; Commonwealth placed key several witnesses a witness protection program, which provided them with free housing, stipends living expenses, (3) and relocation to city; another electronic surveillance purportedly establishing members of one of appellant’s rival drug planned factions dealer; assassinate another drug (4) the results tests comparing appellant’s blood and saliva with samples those recovered from the victim. rape violation,
To establish a Brady
a defendant must
show:
prosecution
evidence,
suppressed the
either willful
or
ly
inadvertently;
defense;
evidence is favorable to the
and the evidence is material. See Commonwealth v. Cham
bers,
3,
872,
(2002).
570 Pa.
807 A.2d
is
“[E]vidence
material only
that,
if there
ais
reasonable probability
had the
defense,
evidence been disclosed to the
the result of the
proceeding
Id.,
would have been different.”
at 887-88 (quot
ing
667, 682,
United States v.
Bagley,
U.S.
105 S.Ct.
(1985)).
L.Ed.2d 342 Appellant points to Andre Kinard’s testimony PCRA that the Commonwealth threatened him charge with drug weapons offenses if he identify appellant did not at trial as shooter, and that he identify could not the shooter. See N.T. Hearing, at 6-8. say does not *13 218 trial; the outcome of his have affected would
how this evidence Appel Kinard. impeached have argue it would appears he testimony is “exceed that recantation the fact lant overlooks proof, form of unreliable,” no less reliable and “there is ingly Com perjury.” an admission when it involves especially (1998) 79, 485, Abu-Jamal, Pa. 720 A.2d 99 553 v. monwealth Anderson, A.2d 466 Pa. v. (quoting Commonwealth (1976)). that he testimony perjured Kinard’s Given recantation,6 trial, surrounding his the factors himself at and this determination the PCRA court’s supports the record Abw-Jamal, (credibility credible, at 99 see witness was not fact, personally trier of who domain of are within sole issues demeanor) (citation thus, omitted); this witness’s observed materiality test. not meet the does proffered evidence failure to dis the contends Commonwealth’s Appellant in a and protection program witnesses placed close that it immunity prejudiced living expenses them with provided facts, he known these if trial counsel had his case because trial; jury would have been jury on a would have insisted judge. than a by such information likely to be influenced more witnesses that none these acknowledge fails to Appellant him in their as shooter recanted their identification court, be they the reason had to affidavits for re they feared was because protection programs placed occurred after where murder turning neighborhood to the have raised evidence would Such they appellant. identified of his cohorts would or one the inference the result at trial retaliate; changed not have as it would favor, it not material. was failure to alleges next Commonwealth’s transcripts suppos tapes electronic surveillance disclose (JBM), a rival gang, Black Mafia the Junior edly establishing preju rival dealers drug of appellant’s to shoot one planned case; supported this information argues diced his a botched during shot the victim that someone else defense testimony perjured until he anyone trial was Kinard did not tell imprison- degree to life guilty murder and sentenced found of first Hearing, at 54-56. ment. N.T. PCRA *14 assassination on the attempt rival dealer. Appellant failed to demonstrate existed; such surveillance evidence based assertion on several newspaper articles published the time of the shooting, which stated the police were investigating JBM. As appellant failed to prove the evidence he sought exists, his claim was properly rejected.
Finally, appellant contends he prejudiced Commonwealth’s failure to disclose the results of blood and saliva tests comparing his samples to semen samples recov victim; ered from the rape he claims this evidence would have rape discredited the victim’s identification testimony and elim inated one of the aggravating However, circumstances. appel lant failed to establish such comparative tests were ever performed; the Commonwealth informed the PCRA court no tests performed were because no testable blood were groups found in the semen taken from the victim. See N.T. PCRA Hearing, at 46. This enabled appellant to there argue was no physical evidence linking him to the rape; accordingly, this claim rejected. was properly
Ineffectiveness Claims Regarding appellant’s claims, ineffectiveness we note sever- al of the issues underlying these claims were addressed on appeal; direct specifically, we trial addressed counsel’s ineffec- tiveness for failing venue, to move for change of and trial court error in denying appellant’s request reopen the penalty phase so he present could expert mental health testimony. However, to the extent appellant alleges now appellate coun- issues, sel’s ineffectiveness in connection with these his issues are distinct from those raised on appeal direct have not been previously litigated. Collins, See Commonwealth v. 585 45, (2005) (term 564, 570, Pa. 888 A.2d 573 “issue” as used in 9543(a)(3) 9544(a)(2) §§ “refers to the discrete legal ground that was on forwarded direct appeal and would have ....”; entitled the defendant to relief ineffectiveness claims are distinct from claims raised on appeal direct and must be error). treated as wholly independent claim of underlying 220 concerning waiver, issues present
Regarding ineffectiveness were counsel’s error and trial trial court thus, these claims are appeal;7 on direct at trial or raised 9544(b). However, ob- may § 42 waived. Pa.C.S. ineffective for counsel was appellate if he can show tain relief Rush, v. See Commonwealth these claims. failing pursue (2003) v. 3, 651, (citing Commonwealth A.2d 656 576 Pa. (2003) (when court is McGill, Pa. 832 A.2d claim, ineffec- only viable ineffectiveness “layered” faced with recent, coun- appellate that related to most tiveness claim is sel)). claim, ineffectiveness “layered”
To
preserve
*15
appel-
petition,”
in his PCRA
“plead,
must
petitioner
a
all prior
for
to raise
failing
was ineffective
late counsel
a
must
Additionally,
petitioner
counsel’s ineffectiveness.
on,
of the
develop
prong
[Com-
i.e.
each
argument
“present
(1987)
153,
[,
Appellant’s petition brief appellate were filed prior McGill Rush’s clarification of the pleading and preservation requirements for layered ineffectiveness claims. In his PCRA petition, appellant plead layered did not ineffec- instead, tiveness connection every issue; with he relied on the relaxed waiver principle formerly employed by this Court in capital appeals, which was in effect at the time he filed his Petition, petition.9 See PCRA at 5-8. Appellant’s appellate catch-all, brief includes a boilerplate assertion of all prior *16 issues, counsel’s ineffectiveness for failing to these litigate see Brief, 7, Appellant’s at and he presents argument on his underlying claims of trial error and trial counsel’s ineffective- ness, satisfying prong the first of Pierce with respect to counsel; however, appellate his development of the remaining prongs two regarding appellate counsel’s stewardship is curso- ry. prong requires
8. An
appellant
assessment of this
to establish each Pierce
prong
respect
with
performance.
prong,
to trial counsel’s
Under this
performance
trial counsel’s
must be
in
addressed
order to determine
appellate
failing
argue
whether
counsel was ineffective for
to
trial
Rush,
counsel’s ineffectiveness. See
at 656.
capital
9. This Court abolished
appeals
relaxed waiver
in
PCRA
in
Albrecht,
(1998).
Commonwealth v.
554 Pa.
720 A.2d
mer
the arguable
has established
an appellant
Where
ineffectiveness, the first prong
trial counsel’s
his claim of
it of
counsel,
bemay
remand
respect
appellate
with
of Pierce
Rush, at
remaining
prongs.
two
develop
warranted
a
“Nevertheless,
need to remand
simply
there is
no
656-57.
his Pierce
has not carried
petitioner
when the
petition
of trial counsel’s
underlying claim
in relation to the
burden
a
were able to craft
ineffectiveness,
if the petitioner
since even
claim,
peti
support
layered argument
perfectly
Id.,
657-58,
at
him to relief.”
not entitle
tioner’s claim would
As discussed fail; his ineffectiveness error and trial counsel’s trial court necessarily are ineffectiveness claims of counsel’s appellate Therefore, McGill, we need at 1023. as well. defeated with of Pierce remaining prongs two develop remand to McGill, Rush, 657-58; at appellate counsel. See respect claims, which we remaining 1025. We now address ease of discussion. and reordered for have reworded Phase Guilt on the have recused judge the trial should
Whether herself basis bias. against trial was biased judge claims the juvenile record and had was aware of his
him because she siblings involving appellant’s over numerous cases presided should have He claims trial counsel juvenile family court. motion, and filed a recusal bias and judge’s discovered this issue on direct counsel have raised should appellate alternative, juxtaposition, appel in curious In the appeal. background failed to consider this judge lant claims the trial 9711(e)(8)’s § under as a circumstance mitigating evidence mitigator. “catch-all” recusal to requesting of the party
“It is the burden bias, unfairness prejudice or establishing evidence produce jurist’s ability to the doubt as which raises substantial Abur-Jamal, Here, there was no preside impartially.” counsel; claims appellate request by recusal *17 should have cited trial counsel’s failure to investigate the trial judge’s familiarity with appellant’s family and move for recu- sal. The evidence appellant presented support of this claim however, at the hearing, insubstantial, was paltry consisting by appellant’s affidavits father10 and some of his The siblings. PCRA court concluded father’s affi- davit could not be admitted as substantive evidence because it subject cross-examination, was not and the court could not determine the credibility. witness’s N.T. See PCRA Hearing, 1/21/00,at 12-13. The court petitioner’s siblings’ noted affida- unsworn, notarized, vits were and made only vague claims they remembered the trial judge presiding over some of their siblings’ family court cases. PCRA Court Opinion, 17.
The allegedly trial prejudicial rulings appellant cites11 do not demonstrate an inability by jurist an render verdict; impartial rulings “[a]dverse alone do not ... establish Abu-Jamal, the requisite bias....” at 90. The rulings appel lant complains of demonstrate more than nothing the judge’s efforts to manage the trial her courtroom. Regarding appellant’s alternative claim that the judge should have con sidered her alleged prior courtroom encounters with family as mitigating 9711(e)(8), § evidence under the judge was duty under no to consider mitigating evidence not presented at the penalty phase; such evidence was outside the record. Appellant essentially argues it would have been acceptable biased, judge be as it long as his favor. Appellant’s meritless; therefore, recusal claim is remand for further development regarding appellate counsel’s ineffective McGill, ness is not warranted. 1025. father, by appellant's prior
10. The statement who died to the PCRA hearing, alleged during prior concerning charges conversation sons, against judge his other the trial commented it was common knowledge guilty they that his were sons because came from a criminal Brief, family Appellant’s and were bad kids. See at 40. judge suggested trial asserts the he and his intimi- brother witnesses, dated multiple requests denied his for continuances to obtain witnesses, witnesses, requests denied his to recall and sentenced him to Brief, Appellant's death. See at 42. *18 venue on the a change entitled to was Whether of coverage. electronic media through pre-trial publicity basis of ineffective was counsel12 appellate claims Appellant arguing coverage media the electronic mentioning not for change for of to move failing for counsel’s ineffectiveness trial the only mentioned venue; appeal, appellate direct on case received. coverage appellant’s media print for this any cite tactic failure to counsel’s appellate points 9/7/99, at 27-28. Hearing, N.T. PCRA omission. See does pretrial publicity “The mere existence v. prejudice.” Commonwealth presumption a warrant (1996) (citations 96, Chambers, 370, A.2d 103 546 Pa. 685 noted, omitted). pre-trial whether determining This Court inherently prejudicial: publicity juror formed a any focus whether inquiry upon must [O]ur or innocence as guilt the defendant’s opinion fixed Pre-trial will be publicity. publicity the pre-trial result of sensa publicity where the is inherently prejudicial deemed than conviction rather tional, slanted towards inflammatory, had a revealed that the accused objective; factual confessions, re record; admissions or referred to criminal accused; or derived from the crime enactments of officers. police prosecuting from the reports 203, Marinelli, 690 A2d 213 547 Pa. v. Commonwealth Paolello, Pa. (1997) v. (quoting Commonwealth (1995)). 439, 450 A.2d exists, to be is deemed publicity
If of these factors any whether the inquire we must inherently prejudicial, and sustained, extensive, so perva- so has been so publicity to have been must be deemed community sive that inherently if been even there has Finally, saturated with it. concerning for fail- Appellant's trial counsel's ineffectiveness claim thus, appeal; rejected direct ing challenge raised and on venue was 30-32; Opinion, Birdsong, Court litigated. previously it See is appellate counsel's ineffectiveness His claim of at 14-15. challenge, coverage in the venue failing media to include electronic Collins, however, litigated properly before us. See not been and is has at 573. prejudicial which publicity community, has saturated the no change of venue is warranted if the passage of time has sufficiently dissipated prejudicial effects of the publicity. (citations Chambers, omitted). at 103 Because appellant waived his to a right jury guilt phase, jurors there was no danger any would have a fixed however, about his opinion guilt; he argues jury waived a at this stage because trial counsel failed to move for a change of venue. He pervasive claims the television and radio publici- ty about the crime and apprehension in Florida was sensational, inflammatory and and revealed his criminal prior *19 record; thus, he was afraid to be tried the county where the residents were exposed to such media coverage. claim;
The record belies this although appellant’s brother expressed concern pre-trial publicity would make it im- possible to a fair pick jury and that was why was waiving see N.T. right Trial, 10/18/89, to a jury, 23, 37-38, at concern, never voiced such and he af- expressly own, firmed his decision to jury waive a was his freely, made id., and that he was satisfied with See performance. counsel’s 5, 22, 24-26, at 38-39. Additionally, trial counsel testified he a change feared of venue to a more remote area would have resulted in a venire which panel would have been more by horrified the of facts the crime than one from urban 179-81; id., Philadelphia. 9/13/99, N.T. PCRA Hearing, at (“We figured venue, if we change filed a motion for of the it.”). worst thing Thus, would is happen they grant would as reasonable, trial counsel’s strategy was appellant’s claim con- fails; cerning appellate counsel’s ineffectiveness remand for McGill, further development is unnecessary. at 1025. the
Whether Commonwealth’s initiation pro- of forfeiture ceedings deprived appellant counsel his choice.
Appellant contends he was denied his right counsel of his choice when the Commonwealth seized assets he would have used to pay counsel. The Commonwealth initiated civil forfeiture proceedings against appellant for seizure of his personal and real property drug charges pending related have used these he would claims Appellant him.
against retained, but attorney he had the pay private assets counsel, was inade- who on rely appointed forced to instead a resources to defend lacked the compensated quately criminal involving multiple matter very complex, protracted held The PCRA court actions. and forfeiture prosecutions PCRA, claims as under cognizable claim was not this included are not proceedings based on civil forfeiture 9543(a)(3)’s Opinion, Court for relief. See PCRA grounds § However, appellate trial and appellant argues at 15. thus, claim; it to raise failing were ineffective counsel Collins, at 570-73. issue. See legally a discrete cognizable, is Hess, 607, 617 v. 532 Pa. on relies Commonwealth (1992), of the forfeiture stat- which held application A.2d 6801(a)(6)(i)(A), an to funds received ute, § 42 Pa.C.S. the defendant violated represent a retainer to attorney as Const, I, § Pa. art. 9. See under right defendant’s to counsel Hess, however, already Hess, the funds were In 313-15. defendant; here, attorney representing to retain the paid those were seized from allege funds appellant does underly- As appellant’s to counsel of his choice. already paid meritless, ineffec- trial counsel cannot be deemed claim is ing the claim tive, development pertain- further and remand for McGill, at 1025. is unwarranted. appellate ing professionally trial counsel to conduct Whether *20 failed impeach to Commonwealth investigation, responsible failed witnesses, key pieces to Common- improperly stipulated evidence, theory, and implausible an pursued wealth defense case.13 test Commonwealth’s failed issue, are in this we In the series of claims evaluating without is to be assessed attorney performance that mindful rather, reconstruct we must hindsight; the distortion of and were made which counsel’s decisions circumstances under claim, he would not conjunction appellant contends 13. In with this investigat- guilt phase properly if had jury waived a at the have capacity. of diminished ed and made available the defense therefore, it waived. petition; is did not raise this issue in his 302(a) (issues and in lower court are waived not raised See Pa.R.A.P. review). appellate time on cannot be raised for first evaluate counsel’s conduct from his at perspective that time. Strickland, 689, 104 See at S.Ct. 2052
Appellant first claims trial counsel should have inves tigated presented evidence drug of his abuse and mental health issues at the guilt phase; he points to statements of arresting state, officers his concerning intoxicated statements friends, family, and former counsel regarding long addiction, standing drug reports of defense mental health experts who testified at the PCRA hearing that he suffered (PTSD) from Post Traumatic Stress Disorder drug-in duced psychosis at the time contends, of the offense.14 He on evidence, based the above trial counsel should have pre sented a defense, diminished capacity and trial counsel’s pres entation aof misidentification defense was unreasonable. However, appellant never victims, admitted to killing prerequisite for claiming diminished capacity. As appellant maintained, even at the PCRA that proceedings, he did not murders, commit the see 9/7/99, 75, N.T. PCRA Hearing, at the defense of capacity available, diminished was not and trial counsel was not ineffective for failing raise it. See Com Johnson, 283, monwealth v. 572 Pa. 815 A.2d 578-79 (2002) (counsel not ineffective for failing to pursue diminished victim). capacity defense where defendant denied killing Appellant contends trial counsel failed to conduct an adequate investigation of impeachment evidence of key Com monwealth witnesses. Specifically, Johnson, he claims Greg who identified appellant shooter, at trial as the told Ruben Brezeal and Gregory Moton he had not seen the shooter. See ¶ Brezeal, 1/13/97, of Ruben 3; at Affida Affidavit/Declaration ¶¶ Moton, 1/19/97, Gregory 7. Appellant vit/Declaration claims Johnson told John Craig Haynes he named appel lant as the shooter because were police threatening charge him with drug if he trafficking implicate did appellant. See of John Craig Haynes, Affidavit/Declaration ¶¶ Glenn, 2-3. Appellant Moton, claims Kim and Brezeal all infra, 14. This evidence is detailed our discussion of claim failing that trial present mitigating counsel was ineffective for it as *21 during penalty phase. evidence the sleazy things pretty some “doing capable was knew Johnson had to he and would do whatever anything^]” ... much pretty Glenn, Kim himself. do to save Affidavit/Deelaration ¶ of Gregory Declaration 15; Affidavit 1/10/97, at see also ¶ Brezeal, 4; of Ruben Moton, 1/19/97,at Affidavit/Deelaration ¶ im- could have claims Brezeal 1/13/97, also at 6. as her ra- Pannell, appellant who identified Yianna peached about Pannell was confused have stated Brezeal would pist; clearly. the event See not recall her and could raped who ¶ 1/13/97, Brezeal, at of Ruben Affidavit/Deelaration of ineffectiveness to relief on a claim To be entitled witness, must demonstrate: appellant to call a for failure available, coun existed, willing cooperate; witness witness; have known of knew or should sel testimony appellant. prejudiced the witness’s absence of Fletcher, 750 A.2d 561 Pa. v. Commonwealth (2000), vigorously Trial grounds. overruled on other trial, questioning and Pannell Johnson cross-examined motives for suggesting their identifications veracity of rivalry of a picture falsely; painted testify them to another the victims were ring and appellant’s drug between on members with, by appellant assault describing an involved thus shooting, before the just days organization of the victims’ falsely implicate appel motive to the victims with a supplying none of the witnesses argued the shooter. Counsel lant as only but rather immediately, so identified did appellant who told of they once were urgings other witnesses’ found, fails to court As the PCRA prior assault. witnesses he now offers of the testimony demonstrate the conjec hearsay, “more than anything would have contributed Opinion, rumors.” PCRA Court ture and unsubstantiated Furthermore, he was trial counsel testified 3/25/04, at 24. him as a witness because Brezeal, to use but declined aware he would credible; told counsel him Brezeal he did not find Hearing, N.T. PCRA paid. unless he was See testify of these Therefore, say the absence we cannot at 154. testimony appellant. prejudiced witnesses’ *22 claims trial counsel Appellant pro was ineffective for with a ceeding misidentification defense when there was evi JBM, dence pointing to the a drug organization which domi occurred, nated the neighborhood shooting where the as being responsible for the shooting.15 Appellant points to statements Moton, from Kinard and who stated Haynes was a dealer drug JBM, and rival of the and the opined shooting was an attempt get back at Haynes, who lived several doors down from the crime scene. See Kinard, of Andre Affidavit/Declaration ¶¶ 1/15/97, 2-3, 7; at Moton, of Gregory Affidavit/Declaration ¶¶ 1/19/97, at Appellant 5-7. also cites an FBI state agent’s ment that “[appellant] stated why reason he left [the] Philadel phia that he heard [was] Black Mafia was out kill him. He from[,] didn’t know where rumor came [the] and didn’t have names[,] any or the why[.]” reasons Investigation Interview Record of Special Agent Risner, 11/21/88, Ronald G. at 3. Finally, appellant cites numerous newspaper articles detailing the drug war between the JBM and its rivals. See Appellant’s Brief, at 81-82. He claims trial counsel should have been aware of the JBM’s connection with the shootings pursued and this version of defense instead of two arguing Jamaicans were responsible for the shooting.
Counsel testified that after receiving little from cooperation in the people crime scene’s neighborhood, he discovered infor- mation, corroborated by police two reports, placing two Jamai- cans at the scene near the time of the N.T. shooting. See 9/8/99, 24; PCRA Hearing, 9/14/99, at N.T. Hearing, PCRA at 4-5. never Appellant said about the anything JBM being involved, and the evidence concerning the Jamaicans was “the only evidence had [counsel] that there was somebody else that 15. The PCRA previously litigated court concluded this issue was be- appeal, cause on direct theory we held trial counsel’s defense was reasonable in testimony concerning connection with his choice to elicit appellant’s prior activity; criminal testimony counsel used this support strategy proving shooting someone else committed the and the identification Birdsong, witnesses had lied. See at A.3d 344; Opinion, strategy Court at 14-15. We held this reasonable, 344; however, Birdsong, 24 A.3d at we did not specifically regarding pursue hold so counsel’s decision to this defense purports Accordingly, over the one now was more viable. we will address the merits of claim. Id., this, at 5. [appellant] continually said didn’t.”
did of the taxi driver who opted present testimony Counsel before shortly off at the scene dropped Jamaicans gave that who of one of shooting description of a victim the taxi given by which matched driver. perpetrators statements, of Kinard’s and Moton’s conjecture Aside from shooting, the JBM to the nothing directly linking there is defense, say cannot trial counsel chose an unreasonable we cooperation the dearth of he received. given witness trial counsel should not have stipu claims *23 jacket a a police report lated to crime lab which stated he fled recovered from the vehicle from contained human blood; he the misidenti stipulation contends this undermined by at essentially conceding presence fication defense his the However, police scene. the fact the appellant crime overlooks containing jacket the of the was admissible report description evidence, which presented through police would have been Trial department chemist’s recitation its facts. stipulated he to this evidence avoid the having testified to fact- hear such a recitation. N.T. gory Hearing, finder See PCRA 9/14/99, at 3^4. did actually stipulate Trial counsel to scene; presence merely at the to agreed the contained in which would have police report, facts the been in a prejudicial admitted manner far more defense had noted, he not done so. as the court Additionally, even scene, report arguably placed appellant if the at the crime it merely the overwhelming eyewitness testimony corroborated not the of his only proof and was See PCRA culpability. 3/25/04, cannot Opinion, Accordingly, say Court at 20. we decision was without reasonable or that appellant such basis was it. prejudiced
Appellant claims trial counsel should not have stipu to the kit rape showing lated results of a semen found anus; no vagina groups Pannell’s testable blood were Pannell, in the from found semen recovered so Common it wealth never had the collected from samples if kit analyzed they rape sample. determine matched contends, at 46. Hearing, N.T. PCRA See inconclusiveness, of the light tests’ trial counsel have should argued appellant did not commit the rape. He further con- brother, Michael, tends his admitted to having sex with Pan- nell that evening, other evidence pointed to Michael as the perpetrator. He trial argues counsel should have more vigorously pursued Michael, the theory that not appellant, committed the rape. that,
Trial counsel testified rather than challenge the Com- monwealth’s failure to have appellant’s samples analyzed and have the results come back coffin[,]” as “another nail in the id., 54, 56, he chose to stipulate to the rape kit’s inconclu- sive results. All these results showed was that someone had victim; sex with the there was nothing linking appellant to the rape. Furthermore, trial counsel called Michael Birdsong testify, purportedly, that he was the one who committed the crimes; when Michael invoked Fifth Amendment rights and did not testify, appellant argued on direct appeal that he should have been granted a continuance present Michael’s held, testimony. We if Michael “[E]ven testified that it was he, not [ajppellant, crimes, that committed the this testimony would have been of little value in of the light testimony of the many eyewitnesses who knew [ajppellant and identified him as Likewise, shooter.” Birdsong, any challenge trial counsel could have raised regarding rape kit or Michael’s *24 culpability would have in paled the face of the other evidence linking appellant Therefore, to the crimes. we cannot con- clude trial counsel’s performance was unreasonable prejudi- or cial to appellant.
As fail,16 claims of trial counsel’s ineffectiveness there is no need to for remand development of the claims McGill, concerning appellate counsel. at 1025.
Whether appellant’s joint trial with his brother was im- proper because antagonistic of defenses.
Appellant claims his brother’s portrayed defense ap pellant as the crimes, exclusive driving force behind the Again appellant potential contends had he known about these de- advanced, challenges fenses and trial counsel could have he would not jury guilt have waived phase. a at the expressed For the same reasons 13, supra, reject in n. we this claim.
232
two were
to his defense that the
irreconcil-
antagonistic
was so
exclusive;
mutually
argues
portrayal preclud-
this
able and
9711(e)(7)
§
in
of the
support
him from
evidence
presenting
ed
(defendant’s
was
in homicidal act
rela-
participation
mitigator
minor).
questioning
He
contends his brother’s
tively
further
identification of
emphasized
witnesses
their
of Commonwealth
crimes,
and the
of his other
and asserts he
evidence
presented
tainted
evidence the Commonwealth
con-
Thus,
with
tampering
appel-
his brother’s
a witness.
cerning
trial
should have moved for severance.
argues,
lant
The
to sever
trials lies
decision
co-defendants’
discretion,
trial
not be
within the
court’s
and will
disturbed
King,
abuse
v.
554 Pa.
absent an
thereof. Commonwealth
763,
(1998).
331,
favored
721 A.2d
Joint trials are
when
judicial economy
by avoiding
expensive
will be served
evidence,
time-consuming
of
and where the defen
duplication
Jones,
v.
charged
conspiracy.
dants are
with
Commonwealth
(1995).
491,
464,
542 Pa.
668 A.2d
defendants,
hostility
mere fact that there is
between
“[T]he
one
at the
may try
expense
or that
save himself
another, is in
grounds
require sepa-
itself not sufficient
fact,
In
rate trials.
it has been asserted that the
fact
have conflicting
place,
versions what took
or
defendants
it,
they
the extents to which
is a reason
participated
for
against
joint
rather than
trial because the truth
bemay
easily
more
determined if all are tried together.”
Chester,
578,
King, at 771
v.
526 Pa.
(quoting Commonwealth
(1991))
added). A
(emphasis
587 A.2d
defendant
there is
claiming
possibility
conflicting
antagonistic
or
de-
“must show
potential
prejudice
just
fenses
a real
Jones,
mere
Whether waiver a sentencing jury was inval- id.
Appellant claims he did not receive a in- proper colloquy him he forming could waive a jury at trial but still have one at and he sentencing, was not potential informed of aggravating factors, and mitigating proof burden of regarding these factors, or the requirement that a jury’s death verdict be unanimous. Appellant acknowledges participation in a waiver colloquy prior guilt to the phase, but contends he should have a separate received colloquy prior to the penalty phase to if determine he still wanted to waive a jury sentencing; he claims prosecutor him mislead into believ- if he ing waived a jury guilt phase, then he had to waive it at the sentencing phase as well. law,
“Under Pennsylvania a capital defendant tried jury without a in the guilt phase retains the right jury to a the penalty ... phase unless he specifically right waives that objection without Commonwealth.” Commonwealth v. Fears, (2003) 575 Pa. 836 A.2d (citing Pa.C.S. 9711(b)). § While this provided Court has not a mechanical listing of what must be included in a colloquy regarding waiver of penalty phase jury, we have made clear: colloquy
[T]he must be an on-record ... dialogue, calculated to insure the defendant the nature and comprehends signifi- least, cance right of the waived. At the ... being very defendant should be if he asked understands that he has the
234 any whether jury, aby penalty-phase to be sentenced
right or coercion promises on has been based right to that waiver a penal- law Pennsylvania that under if understands and a unanimous verdict. must render jury ty-phase O’Donnell, 320, 740 A.2d v. 559 Pa. Id. Commonwealth (citing omitted). (1999)) (citations 198, 213 172, 686 Mallory, v. Pa. 941 A.2d 596 In Commonwealth in connection ineffectiveness (2008), the issue of we addressed jury Although waiver. of a defendant’s validity with the in the instant the time the parties Mallory not decided at case, the briefs, In that it is instructive. matter filed their jury colloquies written waiver extensive defendants executed trial and the colloquies, oral request not on-the-record but did their direct After colloquies. not conduct such court did unsuccessful, peti- filed the defendants PCRA were appeals failing ineffective for tions, trial counsel was alleging each the grounds waiver on the validity jury of his challenge to colloquy pursuant conduct an oral trial court did not the absence of such The court held Pa.R.Crim.P. 620. law as a matter of the waivers invalid colloquies rendered re- The Court Superior were ineffective. concluded counsel versed, prejudice failed to demonstrate the defendants finding Lassiter, 586, v. Pa. 722 554 Commonwealth as discussed (1998) of the Announcing Judgment (Opinion 657 A.2d Court) (defendants waiver must validity jury of challenging have been more joint of trial would outcome demonstrate review jury). accepted if conducted before We favorable of the prong of the analysis prejudice the proper address validity jury of a in the context of the ineffectiveness test waiver, resolve the issue. as Lassiter did definitively waiver jury whether the lack of an oral addressing
In 620, warranted a contemplated by as Pa.R.Crim.P. colloquy, following we observations: prejudice, made presumption waiver, though important jury elements of a The essential are neverthe- right, an necessary appreciation essen- easy “The[ ] to state and understand. simple less trial, jury are concept to the ingredients, tial basic of the from members jury that the be chosen requirements (a community jury of one’s peers), that the verdict be unanimous, the accused be allowed to participate the selection of the jury panel.” Commonwealth v. Williams, 368, 597, (1973); 454 Pa. 312 A.2d accord Smith, Commonwealth v. 498 Pa. 450 A.2d (1982).
[*] [*] A waiver colloquy device; is a procedural it is not a constitutional end or a constitutional “right.” can Citizens *27 waive their rights fundamental in the absence of a colloquy; indeed, waivers can occur by conduct or by implication.... Moreover, the absence of an on-the-record colloquy concern- ing the fundamentals of a by trial jury does not in an prove, sense, absolute that a defendant failed to understand the right waived by Consider, proceeding non-jury. a example, criminally-accused lawyer who waives a jury. Or, consider a career criminal defendant with previous, first-hand experience Or, with jury trials. imagine a rea- sonably intelligent him, client lawyer whose informed off the record, of the three basics of a jury trial. The record colloquy contemplated by Pa.R.Crim.P. 620 serves a salu- tary prophylactic purpose, as it makes it that plain a jury waiver is knowing voluntary, it creates a in record later, the event of a collateral attack upon the waiver. For reasons, the same twin an colloquy on-the-record is a useful procedural tool whenever the waiver any significant right issue, is at otherwise, constitutional or e.g., trial, waiver of a counsel, waiver of the right to waiver of the right to call witnesses, waiver of the right witnesses, cross-examine waiver of speedy limits, rules-based trial time etc. But the colloquy does not share the same status right as the itself.
The right cases, to a in jury trial criminal unlike the Rule- based requirement of a waiver colloquy, implicate does constitutional concerns. If this case involved direct govern- mental denial of an explicit request jury for a appellants —if had jury said, demanded a and the trial judge “No”— appellants would have a claim they valid that were denied their constitutional right by to trial jury. But that is not explicitly claim here. waived their Appellants
the presented Appellants’ on the record. rights jury, writing, a (the have claim Lewises an added burden shared collateral below) which we will address is concerning appellate that, written waiver collo- notwithstanding explicit their lawyers, prosecutor their the quies, which were attested (in cases) trial those judge, two of three the waivers of the of their trial counsel. were ineffectiveness product object they allege lawyers that their failed Specifically, when the trial court to conduct an on-the-record oral failed written If supplement they waiver waivers. colloquy court, all appellants had been three queried open so claim, have they would contradicted their written waivers jury. my-record- and demanded a This not uncommon claim is far removed from the waiver-was-my-lawyer’s-fault “constitutional, if structural” error that would be at issue a timely demand was denied. jury wrongly Mallory, 696-97. importance
We also the distinct recognizing stressed analysis litigat- when a waiver claim is required jury colloquy through ed of counsel guise ineffectiveness: here
Recognizing claim involves collateral *28 counsel, attack the focusing upon right Amendment Sixth only implicates and the collateral attack indirectly right jury distinct to a trial and the Rule- constitutional colloquy, based to an oral waiver is its “right” paramount course, proper lawyers obligation evaluation. Of have an in with conjunction counsel their clients the waiver of basic but rights, including jury; the waiver of a the mere absence of a oral waiver does colloquy automatically record that a was or involun- prove right relinquished unknowingly the trial was tarily lawyer causing and that ineffective is collater- presumptively-valid waiver. When waiver counsel, ally guise attacked under the of ineffectiveness of it any must be like claim. analyzed other ineffectiveness Such mere an an is not resolved absence of oral inquiry instead, waiver focus on the colloquy; analysis must totality relevant circumstances. Those circumstances of include the defendant’s knowledge experience with trials, (if jury his explicit written waiver any), and the content of relevant off-the-record discussions counsel had with his Allen, client. See 135, Commonwealth v. 557 Pa. (1999) 582, 732 A.2d (rejecting per se approach holding that trial court should determine defendant’s actual knowledge guilty plea colloquy context by looking totality circumstances to distinguish whether plea voluntarily, knowingly, made); and intelligently Common- 445, wealth v. DeGeorge, 506 Pa. 1089, 485 A.2d 1091-92 (1984) (permitting “consideration of circumstances outside the content of the colloquy of-record in determining the validity of the waiver” when allegedly was ineffec- tive for failing object to trial court’s acceptance defen- jury dant’s waiver without first conducting on-the-record see colloquy); O’Donnell, also Commonwealth v. 559 Pa. (1999) 740 A.2d (Castille, J., 215-19 dissenting) cases). (collecting discussing
Id., at 698. We then confirmed the propriety of the “totality of the circumstances” approach:
[Ajbsence of an oral colloquy alone prove does not that a jury waiver inwas fact rather, or unknowing involuntary; the PCRA court must look to the totality of the circum- stances ... including the discussions between the lawyers and their clients regarding the jury waiver.... The analysis regarding underlying merits of appellants’ ineffective- ness challenge must be more precise and must account for all relevant circumstances surrounding the waiver.
Id., at 704. Finally, rejected we the argument that collateral jury waiver allegations were among the circumstances prejudice which may presumed: be ineffective, prove
[T]o trial counsel each appellant must show that his of the understanding [jury] waiver was consti- *29 tutionally impaired by lawyer’s deficient performance, as well as proof that he would have elected a but jury for his lawyer’s Thus, performance. we affirm the Lassiter OAJC that, these, like it circumstances
to the extent determined actual must be shown. prejudice Id., at 702.
Here, there on-the-record oral Mallory, unlike was an however, summary proof burden colloquy; Mallows counsel’s ineffectiveness in con alleges a defendant who with a waiver is must jury controlling. nection waiving; he what he was that demonstrate did not understand understand; that, to trial counsel caused his failure but ineffectiveness, upon he would have insisted a for counsel’s to jury. attempt requirement; He does not even address this furthermore, a colloquy totality review of the under the on his circumstances reveals cannot claim. prevail trial court “At appellant: penalty] The told specifically [the just if it is have a hearing, judge, you jury with a could Trial, jury.” if a hearing you go decided to with N.T. have prosecutor at 30. The then commented: “You could a heard also make jury degree who the trial of first murder a penalties.... Having on the a trial with the judge decision ” here, judge will make that determination.... Id. This comment could be to mean that if interpreted appellant waived at the at the jury guilt phase, automatically penalty a did so stated, prosecutor too. The later phase, however: do Knowing possibility, you that is a still wish have judge, only talking this I am about the death penalty here, that if that? phase phase getwe particular you right are a as to whether giving up your jury] [to So you did it and are to a you giving up your right jury also impose.... trial on the as to what penalty decision Id., added). (emphasis at 31 interpreted referring appel-
These comments could be as jury waiver of from penalty phase being separate lant’s as notes, one guilt phase; his waiver of at the as the dissent did include colloquy potentially confusing points. some *30 however, Read in its entirety, the record appellant reflects O’Donnell; was informed of the essential requirements under appellant participated the colloquy, asked questions and counsel, with conferred and indicated he understood right he waiving was and that his waiver had not been coerced. See id., at 28-36. Specifically, appellant assented when the prose- stated, cutor you “Just so ... you know can’t say later I wanted a on jury the death penalty[,]” and “You are giving up your right today to have a jury ... make up their as mind is____The what proper penalty under the law and the judge Id., judge alone will make that determination.” at 33-34. Appellant assented when you asked: still “[D]o wish to have the judge hear this on her own without the jury?” and “You talked with your lawyer and you said understood what I said and want the judge it, to decide that aspect of death penalty Id., phase without a jury.” at 34-35. Appellant also assented when the prosecutor explained that if 11 jurors appel- decided lant should receive the penalty, death “but one of them decided that life imprisonment was proper, you wouldn’t get Id., the death penalty.” at 35. Appellant again assented asked, when the prosecutor “Knowing that is the right you are giving up for purposes of the death penalty, do you wish for the Court to make that decision and not 12 people?” individual Id., at 36. brother,
Appellant and his who was colloquial with him, their expressed decision to waive a jury was motivated their belief the media tainted the public against them. See Id., Furthermore, at 37-38. trial counsel prior recalled that trial, he prosecutor and the met with the trial judge, who “wanted to know if this could be worked out” with “a plea life that,” or anything else like N.T. PCRA Hearing, at but prosecutor refused to accept anything but a plea death. Trial counsel’s recollection was that the trial judge absolutely, “was unconditionally at appalled” Common (both intransigence, wealth’s and all members of the defense the defendants and their attorneys) agreed, after conferring together, that “our best shot for not getting death this case Id., was to be with going trial judge].” [the 22-23. concept fully explaining
Trial added recalled jury he believed waiver of jury appellant, waiver to that interests, and the trial was in best phases both (himself, appel- all of the defense appellant, members key counsel) brother, on this agreed point. lant’s and his brother’s in the jury “didn’t want a Trial counsel testified exactly what we were phase. penalty The penalty phase was so thought attorney’s the district office scared of. We *31 trial so what the outrageous judge] upset by was [the refusing plea was a attorney’s doing accept district office to [in N.T. to life that this was his best shot for life.” imprisonment] 9/18/99, Trial that at 149-50. counsel testified Hearing, PCRA recollection, knowledge explained he had to the best of his jury judge the would mean the trial appellant to that waiver Id., at alone make the at the penalty phase. would decision agreed appellant question 177. asked if he with on the When waiver, jury long trial “Yes. had replied, counsel We 9/14/99, Hearing, it.” at 6-7. discussions about N.T. PCRA no time the PCRA which Crucially, during hearings, months, testify over several did ultimately appellant stretched to challenge counsel’s or even testimony, contradict or trial he he In- waiving. claim did not understand what was was stead, upon the claim the waiver premised counsel PCRA 12/5/00, N.T. at 7-22. colloquy Hearing, alone. See however, testimony, The reveal the record and uncontradicted fully-informed a jury precisely by waiver was motivated desire The judge preside penalty that the trial over the phase. identified, strategy, as so was reasonable. obviously demonstrated, beyond has not a bald allegation him to that trial counsel’s ineffectiveness caused prejudice, Richter, v. jury penalty Harrington waive See phase. — (if (2011) 790-92, 178 U.S.-, S.Ct. L.Ed.2d is that the did “merely strategy all can be shown defense hoped,” not work out as well as counsel had ineffectiveness states, brief granted). Appellant’s merely claim should not be n without record, law preju case or the suffered support dice erroneous and statements allegedly confusing because of colloquy. point any made He does not deficient during counsel, and, on performance part of trial as there was a reasonable basis for trial counsel’s strategy, regard- the claim meritless, ing appellate counsel’s ineffectiveness is and there is McGill, no need to remand for further development. at Whether waiver mental health testimony not knowing, intelligent, and voluntary.
Trial planned to call Dr. Allan Tepper, a psychologist who appellant evaluated before night penalty phase, to present mitigating mental health testimony. However, immediately court, after Dr. Tepper arrived appellant informed counsel he did not wish to have this expert testify. Phase, N.T. Penalty at 669. The trial court colloquied appellant to establish the voluntariness of his deci sion to Dr. forego Tepper’s testimony, and was satisfied such Id., decision was knowing and informed. at 669-70. Appel lant claims his waiver of Dr. Tepper’s mental health testimony was not valid because trial counsel did not retain this expert until the eve of the penalty phase, did not provide adequate background information about appellant expert, this and did not explain the substance of this expert testimony *32 and its value as mitigating evidence. Appellant contends although appellate counsel on direct argued appeal that the trial court waiver, abused its discretion permitting this appellate counsel proffer failed to facts showing why the invalid, i.e., waiver was trial counsel’s inadequate preparat ion.17
On direct appeal, this Court concluded the trial court did not abuse its discretion in refusing to reopen penalty phase so that Dr. Tepper testify, could as appellant’s waiver was and he voluntary, present failed to any information re- the nature of garding the proposed testimony mitigat- or the circumstances ing to which it would have been relevant. See Birdsong, at 33-34. Appellant essentially contends his failure to present information to necessary prevail on this claim however, 17. The previously litigated; PCRA court held this issue was appellant appellate because has now raised it in the context of counsel’s ineffectiveness, appeal the issue is distinct from one raised on direct Collins, and is thus reviewable. See at 573. in preparing ineffectiveness trial counsel’s the result of this import to conveying appellant and in the expert he However, counsel testified trial testimony. witness’s to testimony appel- Tepper’s of Dr. the importance stressed testimony, he would this lant, expert’s him without telling he “abso- trial counsel stated penalty; the death probably get Tepper him to let Dr. get to unconditionally, tried lutely, id., 9/13/99, 128; also see Hearing, N.T. testify.” counsel for not appellant gave only The reason 126-35.18 Dr. Tepper was he was afraid testify Dr. wanting Tepper Id., trial Despite at 123. make him “look dumb.” would otherwise, to convince attempts strenuous counsel’s heed counsel’s advice so; refusal to he failed to do Thus, claim underlying ineffective. does not make counsel fails, for further and remand trial counsel’s ineffectiveness counsel’s appellate with respect of this claim development McGill, at 1025. unnecessary. is stewardship failing to investi- trial counsel was Whether for ineffective a mitigating support evidence in prepare, present gate, at the mitigation at trial and as capacity diminished defense penalty phase. failing trial counsel was ineffective claims
Appellant addiction, drug regarding evidence investigate present childhood, and mental health issues and abusive traumatic asserts drug-induced psychosis. such as PTSD and drug abuse would of his mental health issues the evidence in the guilt defense capacity have a diminished supported jury not have waived a further asserts he would phase;19 defense capacity had he known diminished guilt phase at the gave testimony concerning whether conflicting 18. There was prior the eve of appellant's background information Tepper Dr. 9/13/99, sentencing, Hearing, at 116 and N.T. PCRA N.T. PCRA cf. Hearing, at 12-14. *33 appellant's supra, conjunction disposition of in with our 19. As discussed issues, have guilt phase appellant's claim that trial counsel should in the drug and mental health issues presented evidence of his abuse meritless, development for of an ineffective- guilt phase and remand is McGill, unnecessary. appellate thus pertaining to counsel is ness claim at 1025. was available.20 Finally, he contends the evidence of his addiction, childhood, dysfunctional deficiencies, intellectual and mental illness should have been presented in the penalty 9711(e)(2), (e)(3), (e)(8) § of the phase support miti- gators.
At the trial penalty phase, presented testimony Johnson, of Aisha son, mother of appellant’s two-year-old and Altrecia Berry, Johnson’s mother. Berry testified appel- lant was a good person father; and a good she had never known him Phase, 10/27/89, to be violent. N.T. Penalty at 660. father, Johnson appellant good testified was a but that he had a drug problem; when he was not he high, was nice and but gentle, when he was high, he became violent nasty. Id., at 663-66. Trial counsel planned to call Dr. Tepper, but noted, as previously indicated did not want this Id., expert testify. at 669. Trial counsel pled appel- statement, lant’s life in his closing emphasizing appellant’s 9711(e)(3) drug § use of the support mitigator, and pointing out appellant had been offered no choice other than to enter a Id., guilty to a plea death sentence. at 676. Trial counsel also contrasted other capital cases where the defendants had re- sentences, ceived life argued vehemently for a life sen- Id., tence. at 677-79.
At the hearing, PCRA appellant presented the testimony of friends, experts, and family, who he asserted should have been called at the penalty phase, as well as that of trial and appellate mother, counsel. Specifically, appellant’s brothers, and sister testified about appellant’s dysfunctional family his- tory, which included a traumatic fire he witnessed at a young age, physical father, and verbal abuse by their alcoholic pover- ty, and involvement with gangs and drugs by appellant and his 1/5/00, brothers. N.T. 149-79, 205; PCRA at Hearing, N.T. 54-79, 178, 186-87, Hearing, 190-91. Appel- facts, lant’s childhood friend testified to these same and specif- ically mentioned appellant suffered from hallucinations and injury suffered a head in a gang fight, after which his person- Id., ality 206-08, 211-15, changed. 216-18. A former 20. supra, This claim is n. addressed *34 of was also mother of one his appellant’s, of who the
girlfriend first children, was sweet when she knew testified appellant however, very supportive he him, but had was changed; Id., appellant ap- at 108-10. She stated daughter. their murder, him the high shortly be saw after to when she peared fire and the he dysfunctional upbringing and she confirmed his Id., 113, 117-18, Appellant’s as a child. at 121-22. witnessed character, to he was stating niece testified his like good 1/5/00, 140-43. All Hearing, her. N.T. at father to PCRA witnesses, mother, they stated would except appellant’s these at the but were not contact- penalty phase, they have testified Id., 81-82, 1/6/00, 144-45; at at Hearing, ed. N.T. PCRA However, testimony 222. the of these witnesses also incar- family concerning appellant’s revealed communication ongoing, trial was not as upcoming always family ceration states, in brother living members were different one was incarcerated, and himself from appellant had distanced them. 1/5/00, 184-91, 209; N.T. at N.T. PCRA Hearing, PCRA 1/6/00, 100-01,196-97. at Hearing, Johnson, former Aisha one of two Appellant’s girlfriend, only phone called penalty phase, witnesses at testified phase she had counsel prior penalty contact with to appellant’s concerned a matter to pertaining property. She her, stated counsel’s never met with or called but investigators these events were over ten and she years ago, admitted did Id., 149-50, contacted. not recall whether she was at 167-68. Johnson, to did not to her about According speak counsel her right began, until before it and he penalty phase testimony minutes, with her five her only spoke asking anything appellant’s about or of behavior when upbringing change Id., 148-49, 151, 153, drugs. he was on at 162. She said Id., was he was at drugs. different when on 169. appellant he been law for practicing Trial testified had nine when he to years appointed represent appellant, he everything did could do defend N.T. possibly appellant. 9/8/99, 39; 9/13/99, N.T. Hearing, Hearing, PCRA at PCRA at investigators He worked gather with two information defense; with appellant’s they were touch him support Id., several times a day, him of their apprising progress. 34-36. Although investigators or spoke Aisha daily Johnson by phone, seeking names of potential penalty witnesses, phase many of these potential witnesses refused to N.T. help. Hearing, 26. Counsel stated appellant’s contacted, mother was but refused come to trial, even when counsel with her spoke on the *35 Id., 28; phone. 9/13/99, at N.T. Hearing, PCRA at 41-42. Counsel could not if father, recall he contacted appellant’s but thought 9/8/99, his investigators had. N.T. PCRA Hearing, at 24; 9/13/99, N.T. PCRA at Hearing, 43. Counsel did not know Id., if the investigators spoke with at appellant’s siblings. 46- 48. Counsel could not recall certainty with if he obtained appellant’s records, school and correctional but Dr. thought Id., Tepper 51, 111, 113,116. had reviewed them. at Regarding abuse, appellant’s drug counsel Aisha thought Johnson, son, mother of appellant’s was the best witness to testify about appellant’s personality changes when he was Id., under the influence of at drugs. 87. Counsel repeatedly stated he did not believe appellant’s issue, drug use was at and he present did not additional evidence regarding this because there was no dispute appellant had a severe drug problem and was under time; the influence of drugs most of the Id., Commonwealth 65-66, did not contest this evidence. at 69, 79-80, 83, 90, 104; 9/14/99, N.T. Hearing, PCRA at 9. Dr. Additionally, Tepper would have testified about appellant’s use. drug 9/13/99, N.T. PCRA Hearing, at 66-67.
Counsel further testified he chose Dr. Tepper key as the penalty witness for the phase because he had a long-standing with relationship expert this and him believed to be the best witness; the Commonwealth would not cross-examine him extensively, as it used him to train prosecutors capital cases, and Dr. Tepper only was not a psychologist but also an attorney, issues, law, and thus aware of the case and death penalty statute’s requirements relation to his testimony. Id., at 118-19. In addition to testifying appellant’s about abuse, history drug Dr. Tepper would have testified appel- Id., lant had a IQ. low at 122. Tepper Counsel testified Dr. phase, at the and ready testify penalty to present testimony; of this importance knew the appellant it, likely get he most that without would appellant to explained Id., 62, 126, 128, 184; N.T. PCRA at penalty. the death However, 9/14/99, suddenly ob- appellant at 45-46. Hearing, testimony Tepper’s not want Dr. jected, telling counsel did him N.T. appear stupid. it would make because presented 123, “absolutely, 126-28. at Counsel Hearing, testify[,]” him let Dr. Tepper tried to unconditionally, get id., change his but could not persuade represen- Finally, throughout mind. counsel testified talking appellant, no problem tation of he had appellant, when understanding each other they problem had no Id., jury. whether to waive a discussing who worked with trial counsel investigators of the One was contacted but refused to confirmed mother trial, the contacted to be character majority people come for involved, not want to penalty phase get witnesses for the did never had appellant daily they problems she spoke *36 other, was active in the understanding appellant very each and understood what was at stake. of his defense and preparation . 21-22, 1/4/00, N.T. at 85-88. Hearing, PCRA conducting counsel testified that in appellant’s One PCRA proceedings, her for the PCRA she told investigation never contact- family investigators that the defense appellant’s them; had not spoke they ed she with said investigator trial counsel would have been the one family, contacted the as 1/7/00, at 60-61. Hearing, to do that. N.T. PCRA Maher, psychiatrist Dr. Michael a forensic who evalu- Scott he reviewed appellant hearing, ated for the PCRA testified records, investiga- appellant’s prison pre-sentence school and offenses, family, from friends and prior tions from affidavits notes, evaluating Dr. and after Tepper’s police reports, polysubstance concluded PTSD and appellant, appellant’s impaired appellant’s capacity at the time of the offense abuse law, well as according impaired to conduct his behavior as its the nature of his behavior and capacity his understand 1/4/00, N.T. at 100-07. wrongfulness. Hearing, PCRA Larsen, Dr. a James forensic psychologist who evaluated appellant for the hearing, PCRA testified that after he viewed the same materials as Dr. Maher and met with appellant, he appellant concluded was a polysubstance abuser with PTSD a IQ; conditions, borderline he further opined these combined with drug-induced psychosis at the time of the offense, 9711(e)(2) (e)(3) § established the mitigators, as Dr. Maher 1/5/00, had concluded. N.T. Hearing, PCRA at 49- 53.
Dr. Tepper testified he evaluated for three hours. he Although conceded he had limited time to conduct his (he evaluation with background limited information did not remember receiving background counsel), documents from recalled being familiar with the case’s facts and circumstances. Id., 7, 10, 12-13, at 29-30. He testified he would not have independently requested appellant’s juvenile and rec- prison Id., ords. at 13-14. He noted low IQ and drug use were apparent, and explained practice his was not to ask for the to; defendant’s version of the crime if counsel said not here, he did not recall to, him instructing so he probably would have appellant, asked and it was appellant’s Id., wish not speak about it. 22-23. He did not PTSD, diagnose appellant as having but acknowledged his Id., dysfunctional awareness upbringing.
The Commonwealth presented the testimony of Dr. John O’Brien, Sebastian a psychiatrist forensic who reviewed appel- records, lant’s Maher, affidavits and reports Drs. Lar- sen, and Tepper, and the of appellant’s affidavits family and friends. N.T. Hearing, at 107-08. Dr. O’Brien was used as a consultant only opine whether the records provided conclusions, a basis for the other doctors’ and he did not examine appellant.21 He acknowledged appellant had *37 argument, 21. appellant In a one-sentence contends Dr. O'Brien should permitted not have testify been because he never met or evaluated however, appellant; hearing it was made clear at the PCRA that Dr. testifying O’Brien was findings as a consultant to review the of Drs. Larsen, Maher and testimony. in order to rebut their N.T. PCRA 23, 25, 35, that, Hearing, opinion at 37. His based on his appellant's review only, of records there was no basis for certain 248 disorder, but abuse substance and a mixed IQ
borderline
being
him from
IQ
prevent
low
did
noted
and owned
businesses
who ran different
functioning adult
fully
Id.,
112, 115. Dr. O’Brien
at
vehicles.
and
properties
several
PTSD;
from
suffered
appellant
finding
with the
disagreed
child,
had
but this disorder
as a
had PTSD
appellant
he opined
Id.,
113—at
reached adulthood.
the time he
by
itself
resolved
appel-
the conclusion
with
disagreed
further
16. Dr. O’Brien
disorder; he
psychotic
from a substance-induced
lant suffered
as a result of
experienced
appellant
the “difficulties”
opined
sub-
voluntary
manifestations
abuse were
his substance
Id.,
116-18, 129. Final-
intoxication,
at
not psychosis.
stance
able to
would have been
appellant
Dr.
concluded
ly,
O’Brien
to conform his
his conduct and
wrongfulness
understand
crime,
time of the
at the
requirements
to the law’s
conduct
or
psychological
an extreme
not suffered from
he had
and
9711(e)(2)
(e)(3)
disturbance,
and
miti-
§
so
emotional
Id., at 143-45.
were not established.
gators
investi
failing
ineffective for
trial counsel was
arguing
In
above,
evidence summarized
mitigating
present
gate
362, 120 S.Ct.
Taylor,
v.
relies on Williams
529 U.S.
Smith,
v.
(2000)
Wiggins
539 U.S.
1495,
249 particular investigations unnecessary. Strategic choices made following a less than complete investigation are rea- sonable to the extent precisely that reasonable professional judgment supports the limitation of the investigation. In undertaking assessment, the necessary courts are to make all reasonable efforts to avoid distorting effects of hindsight. Nevertheless, courts must also “post avoid hoc rationaliza- tion of counsel’s conduct.” (citations
Id., omitted). at 303-04 and footnote —Hook, In Bobby -, v. Van U.S. 130 S.Ct. (2009),
L.Ed.2d 255 the United States Supreme Court further clarified what Strickland requires regarding the investigation and preparation penalty phase mitigating evidence:
The Sixth Amendment entitles criminal defendants to the “ ‘effective is, assistance of counsel’ ”—that representation that does objective not fall “below an standard of reason- ableness” in light of “prevailing professional norms.” That standard necessarily is a general one.... Restatements of standards, professional recognized, we have can be useful as “guides” entails, to what reasonableness only but to the extent they describe the professional norms prevailing when the representation took place. (citations
Id.,
omitted).
at Wiggins
Williams and
did not establish a new federal
constitutional
by
standard
which to measure counsel’s stew-
ardship
preparing
penalty
phase;
they simply
applied Strickland’s well-settled ineffectiveness standard to
later cases involving
specific
question
duty
of counsel’s
investigate mitigating evidence in a capital case. This stan-
one,
dard is a general
and must be flexible
enough
consider
the prevailing professional norms at the time of counsel’s
Strickland,
(“A
performance.
See
Viewing time of his at the norms professional prevailing under the was prejudiced we cannot conclude stewardship, (ineffectiveness Rollins, at 441 See performance. counsel’s evidence fails by showing petitioner’s may claim be denied *39 claim). only Although three prongs meet one of single had appellant was that actually presented evidence mitigating the record good person, a but was otherwise drug problem a fami appellant’s court’s conclusion the PCRA supports abusive dysfunctional, have testified about his would ly—who of appellant, to on behalf willing appear not upbringing —was health mental expert to present trial counsel’s efforts such permit refusal to by appellant’s were thwarted evidence they would have been family testified testimony. Appellant’s contacted; counsel and were not witnesses but penalty phase them, to contact but effort was made investigator testified court, the sole The PCRA as wanted to involved. get no one credible, and testimony found the latter credibility, arbiter of (credi Abvr-Jamal, at 99 finding. cannot this See we disturb fact). Accord of trier of are within sole domain bility issues to failing present ineffective for trial counsel was not ingly, family. testimony by appellant’s already we have determined Tepper, Dr. Regarding testify. having expert this voluntarily forego chose appellant evaluation and Therefore, if the amount of time for even was not gave Tepper trial counsel Dr. information background reasonable, he prejudiced cannot demonstrate was claim to stewardship. Despite appellant’s by counsel’s testimony Dr. was Tepper’s contrary, preclude his decision ill-prepared that this by perception expert motivated not assessment; his choice was driven an inadequate or conducted revealed, see N.T. low intelligence his desire not to have his a fact which was evident Hearing, trial According records. and correctional appellant’s school testified, brought have counsel, Dr. he would Tepper had also his but only intelligence, limited light Al development. on his impact and its family background Lar- with Drs. Maher and agree Dr. did not though Tepper diagnosis sen’s PTSD substance-induced it psychosis, is doubtful the information in appellant’s school and correctional records would have altered Dr. Tepper’s conclusion. The emotional, school records reveal appellant’s severe disciplin- ary, and academic problems, but do not any psycho- indicate logical disorders or suggest other than counseling placement in special education. The correctional records reflect low abuse, intelligence, immaturity, substance poor con- impulse trol, behavior, state, and aggressive but specifically “There are no any indications of psychotic thought processes this individual. Diagnostically would to be a appear Personality Disorder, Passive-Aggressive Type.” 1978 Mental Health Strauss, Ph.D., Evaluation by Marvin 28; Defendant’s Exhibit see also 1978 Pre-sentence Investigation by Donaldson, James Thus, Defendant’s Exhibit 28. we say cannot trial counsel’s investigation and preparation of mental health mitigating evi- dence, unreasonable, even if prejudiced appellant. As appel- lant’s underlying claim of trial fails, counsel’s ineffectiveness remand for further development of this claim concerning *40 appellate McGill, counsel is unwarranted. at 1025.
Whether appellant’s prior juvenile adjudications were im- properly considered as prior felony convictions aggra- under 9711(d)(9). vating § circumstance Pa.C.S. 42 Appellant claims trial counsel was ineffective for stipulating juvenile adjudications22 three which the Commonwealth 9711(d)(9) (defendant support § used to aggravator has significant of history felony convictions involving use or threat of violence to person); he the law argues at the time of his trial did not permit juvenile the use of adjudications in adult criminal proceedings, and the use adjudications of these violat- ed his due process rights and an post constituted ex facto violation.23 trial,
At the time appellant’s of Act provided: Juvenile 22. stipulated adjudications robbery Trial counsel to two and one for burglary; stipulated robbery he also to a 1987 conviction for when appellant was an adult. post petition; did not the ex raise issue in his PCRA facto therefore, 302(a). properly pre- it is waived. See Pa.R.A.P. Even if
252 adjudication Effect of
§ 6354. adjudica- or other (a) disposition rule.—An order General not a conviction chapter this is under proceeding tion in a crime.... disposition matters. —The
(b) judicial in subsequent Effect him in used against not be chapter may this of a child under subsequent than at a court other any any proceeding majority, reaching or after before juvenile hearing, whether except: a felo-
(1) after conviction of dispositional proceedings investigation presentence of a ny purposes for the or report;
(2) relevant, or charac- put reputation he has if where matter. in issue in a civil ter § 42 6354.24 Pa.C.S. (1992), 541, Baker, A.2d 663 531 Pa. v.
Commonwealth adjudications could be juvenile whether the issue of addressed 9711(d)(9) under the aggravator § support introduced Act, when which was in effect of the Juvenile former version were adjudications held such was tried. This Court sentencing, of capital for purposes admissible as convictions of the defen- analysis an sentencing requires such because id., 675-76, character, record, background, dant’s entire v. holding. this See Commonwealth and we have reiterated Carson, 1062, (2007); Moore, 619, A.2d 594 Pa. meritless,25 Thus, and remand for claim is 274-75. served, challenge v. rejected identical in Commonwealth this Court an (2006). Carson, 275-76 590 Pa. 913 A.2d permit subsequently in 1995 to the use amended 24. Section 6354 proceeding where evidence delinquency adjudications in a criminal they were an admissible if committed of such offenses would be *41 6354(b)(4). § See 42 Pa.C.S. adult. Furthermore, submitting aggravating any an circumstance "error aggravators no miti- jury multiple and where the finds is harmless Lester, Carson, (citing v. 554 Pa. gators[,]” at 275 Commonwealth (1998)), the case here. The trial court n. 15 as was 722 A.2d (d)(ll) 9711(d)(9) aggravators proven, no § and found both circumstances; thus, sentencing have at would mitigating the outcome 9711(d)(9) aggravator. § See Pa.C.S. even absent been death further of this development respect claim with to appellate McGill, counsel is unwarranted. at 1025. Proceedings
PCRA Appellant asserts the PCRA court impeded right to present material evidence when it refused to issue certifi materiality cates of to subpoena two out-of-state Common witnesses; wealth trial he claims these witnesses would have described the Commonwealth’s favorable treatment of its wit nesses, thus showing their bias supporting his Brady However, claim. PCRA counsel admitted these witnesses would not recant their trial testimony against appellant, N.T. Hearing, 32-33, and both witnesses ap peared id., unwilling cooperate defense, 34-35; with the therefore, the PCRA court concluded their purported testimo ny they were given housing transportation to Mary land “would not make a substantial difference in jury’s finding Id., of credibility Thus, as to these witnesses.” at 42. material, this evidence was not as it would not have changed case; the outcome of the we perceive no error in this ruling. Appellant claims he prejudiced by Common wealth’s unreasonable delay to his responding PCRA peti tion; he asserts two witnesses died and another became unavailable between the time he petition filed his and the PCRA hearing. Appellant father, asserts his who died prior to the hearing, would have testified concerning mitigation evidence of appellant’s dysfunctional childhood that should have been at the presented penalty phase, as well as testified in support of appellant’s claim the trial judge was biased him against family. brother, and his Appellant asserts his Michael, who became disabled to the prior hearing and was unavailable, thus would have testified about evi mitigating dence of appellant’s childhood and would have it admitted was he, not appellant, who committed the rape. Appellant asserts the trial who also died judge, prior to the have hearing, would been a relevant witness the bias claim. concerning 9711(c)(l)(iv). Thus,
§ preju- fails to demonstrate he was 9711(d)(9) § diced aggravator. the inclusion of the *42 have been cumu- father would testimony appellant’s
The hear- testimony at the PCRA members’ family lative of other delay Thus, prejudiced was not appellant ing. Commonwealth, pur- which time this during to the attributes Michael, brother, was called Appellant’s died. witness ported self-incrimi- witness, against his right but exercised a trial as 578-79). Trial, 10/26/89,at N.T. (citing at 35 Birdsong, nation. appeal on direct noted, concluded this Court As previously helpful have been would not testimony witness’s that this knew identified appellant who many eyewitnesses appellant; Thus, concerning appellant’s this issue Id. him as the shooter. as litigated; was testimony previously purported brother’s ineffectiveness, no in terms of couch it does not appropriate. further review is have testimony would judge’s the trial claim
Appellant’s record; face of the trial hollow the rings her bias established over judge presided fact the trial based on the the claim was before siblings years involving appellant’s juvenile proceedings noted, judge the trial previously trial. As appellant’s basis, and the record herself on this to recuse required recu- appellant’s consideration gave appropriate reflects she Thus, prejudice by claims of sal motion. to his PCRA filing response its delay Commonwealth’s are baseless.26 petition displayed court claims the PCRA
Finally, appellant counsel, interrupting PCRA by repeatedly him against bias objections, accusing full to lodge to allow counsel refusing witness, of a credibility on the stalling, commenting with interfering PCRA proceedings, about the commenting witnesses, testi permitting expert questioning counsel’s Appel witnesses. See mony by unqualified Commonwealth 62; 1/5/00, at Brief, Hearing, N.T. PCRA (citing at 18-21 lant’s 15; 1/6/00, Hearing, N.T. at PCRA Hearing, N.T. PCRA 10/26/99, 45; at N.T. 9/13/99, 64; Hearing, at N.T. PCRA hearing sever- the PCRA was continued Appellant overlooks the fact assigned initially judge who was the illness of the trial al times due to Brief, Post-Hearing See Commonwealth’s hear his PCRA claims. 10/13/00, at 4-5. 1/7/00, 16; Hearing, N.T. PCRA Hearing, 3-6). claims Appellant these instances entitle him to a new before a hearing judge. different overlooks fact that many of the PCRA court’s
comments were in response made to PCRA repeated counsel’s attempts to circumvent court rulings and ask redundant ques- tions. A expression court’s of frustration with counsel’s be- havior does not evidence a settled bias which would warrant Abu-Jamal, See “[ajdverse recusal. Furthermore, at 89-90. rulings alone do not ... establish the requisite bias warrant- recusal, ing where especially are rulings legally proper.” Id., (citations omitted). at 90 Our review of the record reveals no instance where the PCRA court’s frustration impaired its ability therefore, to preside impartially; appellant is not enti- tled to relief.
Conclusion Having found is not claims, entitled to relief on his we affirm the order of the PCRA court denying his petition for collateral relief. affirmed; jurisdiction
Order relinquished. The Prothonota- ry is directed to transmit the record to the Governor pursuant to 42 § Pa.C.S. 9711®. BAER,
Justices McCAFFERY and join ORIE MELVIN the opinion.
Chief Justice CASTILLE files a concurring opinion. Justice a SAYLOR files dissenting opinion which Justice joins. TODD CASTILLE,
Chief Justice concurring. join I Majority Opinion, subject to the qualifications I below, express in Part II addressing points made Mr. by Justice Saylor to which the Majority does not respond. How ever, I write primarily to address the Virginia, Atkins v. 2242, 153 (2002) U.S. remand, S.Ct. L.Ed.2d 335 since issue, the presence of that additional which was ultimately of this disposition in the abandoned, delay caused substantial to broader issues speak here circumstances and the appeal, has volunteered Federal Defender where the in cases delay proceedings. into state collateral itself appear who defendants many capital like so Appellant, feder- is represented appeals, on PCRA1 before this Court Philadel- with the counsel associated volunteer ally-financed Billy H. Defender, lawyer being primary Federal phia the PCRA burdened both Ñolas, The Federal Defender Esq. prolix indiscriminate typically this with court and Court trial where the case, a bench involving a case this pleadings two including savage appellant’s guilt evidence crimes— girl, murders, teenage sodomization of rape brutal over- other victims—was wounding of six the serious goes claims none of surprisingly, Not whelming. innocence. guilt to his or *44 That in petition April his initial PCRA filed primary sixteen long lodged pages was
petition April on petition dismissed the After the PCRA court claims. 1925(b) state- 11, 2001, and filed a Pa.R.A.P. counsel appealed review, including for ment, questions listing twenty-nine appellate trial and (including prior all “[w]hether failed counsel) they insofar as ineffective assistance provided case?” the issues this present investigate, develop, brief, which was principal a ultimately 90-page filed Counsel single-spaced it included 83 longer much since effectively the trial facts. footnotes, not to mention and counsel decided and numerous sub-issues. raised ten issues principal Counsel mentally was a claim that his client later added Counsel under was for execution ineligible and therefore retarded Atkins.
-I- of the Atkins delayed appeal claim this The pendency this was Ultimately, details. Court Majority as the years, 20, 2007, for the August the matter on forced to remand Act, seq. § 9541 et Relief Pa.C.S. 1. Post Conviction PCRA court to determine the Atkins merits. Sixteen months later, however, 12, 2008, on December the PCRA court en- order, tered an which reads as follows: Defendant withdraws his claim (against Atkins/Miller counsel). advice of Defendant also withdraws all claims (with with regard to counsel) conflict of interests present (of counsel) present ineffectiveness and wishes his appeals to proceed with current counsel on all other issues already presented.
This Court having jurisdiction, no further the case is sent back to the Supreme Court for further proceedings.
Given the delay occasioned by the pendency of the Atkins case, claim in this ongoing concerns with delay capital cases generally, and what now appears to be a recurring issue of Atkins delay cases,2 in Defender the circumstances of the withdrawal here require consideration.
First, the transcript below reveals that the Atkins claim was not withdrawn over objection Rather, of counsel. Attor- ney represented Ñolas to the court that withdrawal was “not make,” decision I would but since appellant wanted the claim withdrawn, to be and had so counsel, “instructed” “therefore, we agree would with him to withdraw the claim relating mental retardation.” N.T. 4-5. Query: if even the client is claim, embarrassed an Atkins or is set against it for reason, some other since the claim is the winner, ultimate penalty phase involving death un- eligibility Amendment, der the Eighth how can lawyer a withdraw such claim, if arguably meritorious? Which raises the question: colorable, this Atkins claim or was it baseless all along?3 *45 Here is what the record reveals. 340-42,
2.
Spotz,
(Pa.2011)
See Commonwealth v.
Before court se, a letter to the PCRA sent acting pro appellant, (Exhibits motions (Exhibit and two hearing) in the C-2 (1) C-3).4 counsel and to remove sought motions The C-l and claim, Atkins (2) withdraw the se and to pro to proceed the of the letter and copies forwarded The court respectively. N.T. and the Commonwealth. motions to defense court detailed letter to the PCRA at 9. Appellant’s pursuing with counsel for why upset reasons he was the judge began by asking claim. the Atkins complaint against to file a misconduct direction on how concerning his complaint He then outlined Defender. Federal with a remarkable the Atkins claim pursuit the Defender’s (verbatim): detail, as follows level of Ñolas, No ... and David like Pa. bar Lawyers Billy like we they people ... treat us black Pa. bar No. Wycoff, every Row. here on Death of mental retarded are bunch retardation have a mental they represent inmate case black all black is yourself, the records for investigate please issues retarded, opportu- have just we didn’t stupid dumb or or life, row inmate when a black death other had in nity as turn there back on they automatic lawyer with disagree row. the white inmate on death with happened us. this don’t Mr. Wycoff with Mr. Ñolas and disagree inmate if a black Psychiatric ... American Association Mental Retardation and the on readily feigned. can be symptoms that the of this condition realize that feigns insanity risks commit capital defendant who And whereas (and cured then tried mental until he can be ment to a executed), institution feigns mental retardation risks capital ... defendant who J., 353, (Scalia, joined by 122 2242 nothing all." 536 U.S. at S.Ct. J., (citations omitted); Thomas, dissenting) see also Rehnquist, C.J. 1170, Vandivner, 617, A.2d 1187-88 599 Pa. Commonwealth v. (2009) recognition that second (quoting approval "[a] with trial court’s requirement the test for mental 'age [in rationale for the of onset’ feign mental retarda defendants cannot is to ensure that retardation] accord, crime."); e.g., v. being charged capital State with a tion after Grell, 696, (2006) (Atkins claimant "has 135 P.3d 212 Ariz. test"); Bowling IQ poorly significant attempt to score on motivation to Commonwealth, (reality facing (Ky.2005) v. 163 S.W.3d "significantly depres skewed” penalty can scores to be death cause tension, sion, malinger). anxiety, and motivation 11, 2008, by the and marked received September dated 4. The letter is September 17th. trial court on *46 Concerning mitigating penalty phase issues or want they you to to plea guilt mitigation issues for a in life sentence prison, or to I am mental say retarded even when you tell then you are not tell me how a person like me come on death row and become I retarded when own and operation Real office State and have own many property, and a area, in the grocery Store Philadelphia they get will very angry you. will they not response your legal mail will trash, go in the if you look at my appeal docket sheet Wycoff is the first one. the lawyer will even far go so as not to tell you Pennsylvanian if Supreme make Court a big or a in ruling your decision case this is life or death are they with, playing the only way the black inmate know is when the state sign our death warrant this is not right, you as well aware Capital Case have only days before there warrant sign is this do not happened to they white inmate know immediate about there case.
The problem is the lawyers visit my family whole in Atlanta Georgia and use a intimidated tactic on my old mother and told them the state is planed on execution your soon, son if your family do help and testify this is the life, only way to save Ralph you must come to court and testify your son was always slow mental and some what growing retarded up.
Billy Ñolas purposely put perjure on testimony court when he my scared family falsify into that I testify retarded, will my family come back to court and testify life, under oath lawyer told them to lie and save help my lawyer also the told me they set me with up appointment Maher, see a Dr. Michael Florida, Scott psychiatrist from the lawyer told me when I see him pretend and act like I am Moher, mental slow and retarded for Dr. and act like I can’t or read write basic act dumb to the Doctor. I am willing testify this court and well my as whole family, also I am willing to let the State or Commonwealth psychiatrist to see me and visit anyme time.
My is what questing avenue can I take to being avoid abuse I and mistreated been abuse all my by attorneys life I out, I am to fill any have form you do tired of it.
am and Federal the State on investigation a full requesting level. *47 12, counsel on December Atkins withdrawal hearing
At the was questioned the Atkins claim and appellant withdrew the deci- with agreed he understood whether determine complaints withdrew his also to withdraw. sion however, never disa- Notably, appellant about the Defender. made, and he had representations of the factual any vowed for “speak letters that only appellant’s Ñolas said Attorney never contradict Defender “would and that the themselves” Ap- at 12-13. N.T. says.” that a client something of counsel “was sort about complaints stated that his pellant now, with now I am satisfied ... but complaints like in-house far”; that he “with- then stated appellant done so they what Attorney “rather” have and he would complaint, drew” the Id. at 13-15. The Commonwealth him. represent Ñolas in the on the representations to examine attempted of interest and serious letter, both a conflict suggested which attempting in the of the defense upon part misconduct was manufacture a false Atkins claim. The Commonwealth Ñolas, which the court objection Attorney by by cut off an unfortunately ultimately —sustained. —and literally has been matter. This case very This is a serious an Atkins claim that was posed upon based delayed years merit, which was then as if it had the Federal Defender by Defender’s client immediately after the by withdrawn court, with just disagreed that he to the trial complained that, I realize claim, it was a sham. but that pursuing objection, Attorney Nolas’s that the court sustained given concerning the findings factual below there have been no misconduct, and lawyer allegations accuracy detail, thus, appel- level of notwithstanding the remarkable falsehoods. a multitude of may lant’s letter have contained that, suggests here which But, is something questionable there there perjury, not an active subornation even if there was subject a colorable Atkins claim. What is not was never into the case injected delay is that a substantial question by Defender’s of the pursuit dubious issue. The fact of in delay capital PCRA and the appeals, reasons for have delay, been made supremely relevant the Defender litigation I strategies described in in my concurrence Commonwealth v. (Pa.2011)
Spotz,
(Castille, C.J.,
A.3d
joined by
J.,
McCaffery,
noted,
concurring), where I
among other points,
the Defender had filed a federal
in
Motion
Common-
CAP,
wealth v. Dougherty, 585
forwarding
global
claim that
this Court was “incapable of
its
managing
capital docket.” In
addition to various factual misrepresentations,
the Defender’s
federal motion blamed
Pennsylvania
courts for state court
delays
capital
matters,
without
acknowledging
its
delays
litigation strategies had
ensured
cases it
very
cited.
It
coincidental,
is beyond
I suspect, that the reported
cases detail at least two other instances where the Defender
has
claims,
raised Atkins
and then taken measures to avoid
*48
their
(Cas-
determination. Spotz,
340-42,
A.2d 128 and Commonwealth v. (pend- CAP The ing)). Atkins delay here confirms the concerns I outlined in Spotz the regarding systemic abuses inflicted upon Pennsyl- vania’s state by courts the litigation Defender’s strategies capital cases.
-II- Turning to the concerns expressed by Justice I Saylor, have conducted my own independent record, review of the including the extensive proceedings in the PCRA court. Saylor Justice has accurately superficialities noted and weaknesses in various below, rulings and findings and in the analysis Court’s review here; and has highlighted some examples of problematic hand, issues. On the other as I have detailed in I am Spotz, mindful of the placed courts, burden on the PCRA and on this Court, by both prolix the filings the Defender and their tactics, litigation dubious as revealed by progress the of the here, Atkins claim and the Defender’s conduct at the PCRA I hearing. agree that a more particularized approach should review, on by and this Court courts by be followed our PCRA baseless. obviously are not claims that respecting least Court, courts, or this the trial But, that I do not believe determined of resources have allocations can or should In balance. This is a delicate strategies. litigation Defender’s Spotz, coupled view, suggested reforms I briefing my the trial level reforms pleading with commensurate the best may be pleadings, from abusive PCRA courts protect non-frivolous rational review of reasonable and way to ensure claims. this, of concern to the claims respecting said
Having
convinces me that
review of the record
Saylor, my own
Justice
identify
develop
fair
opportunity
a
appellant
given
claims,
to this Court
impediment
that there is no
his collateral
now,
clearly is not
appeal
deciding
(two
at issue
the criminal conduct
entitled to relief. Given
victims,
and other lesser
rape,
wounded
killings, six additional
evidence, this was a difficult
offenses),
overwhelming
and the
a
had
attorney. Appellant plainly
trial
any
case for
capital
collateral
His various
Judge
fair
trial before
Stout.
bench
where he
those instances
including
claims either lack merit —
he has not
fault counsel for his own decisions —or
seeks to
that the
result
showing
probability
come close to
reasonable
trial,
would have been
the penalty proceeding,
of the
or
to his counsel.
that he attributes
lapses
different but for
I conclude that
phase,
to the
respect
penalty
With particular
alone (significant
strength
aggravators
the nature and
murders) militate
multiple
felonies and
history of violent
v.
Commonwealth
an award of Strickland
See
relief.
against
*49
(Strickland
Lesko,
(Pa.2011)
upon
claims premised
I cannot Instead, I would remand for rationale. with its differences
263 review, appropriate post-conviction and I write to the follow- ing.
First, that, Appellant complains after multiple remands to obtain an adequate opinion court, from the post-conviction that court employed near cut-and-paste approach from the Com- monwealth’s brief appeal. review, on To my the opinion, least, very the does test the limits of compliance with a PCRA duty court’s an produce independent analysis of post- Williams, conviction claims. See Commonwealth v. 557 Pa. 207, 224-25, 1167, (1999); 732 254-55, A.2d 1176 see also id. at (Castille, J., A.2d at 1192-93 concurring). For example, eight first pages opinion are taken almost verbatim from the Commonwealth’s brief.
Second, the majority
suggests
the colloquy attending
Appellant’s waiver of
right
to a jury penalty verdict was
sufficient.
Majority Opinion,
238-39,
See
op.
I partially. understand You are saying we waive right our jury to a trial only and that’s a waiver. I don’t think I waive my right to a jury trial on decisions because I don’t know what the decision is yet.
N.T., 18,1989, Oct. at 32.
It may be that Appellant’s claim merits no relief given weakness of proofs concerning the reasonable strategy I Appellant’s note that trial occurred before the Commonwealth Const, acquired right jury its own constitutional to a trial. See Pa. art. I (as 3, 1998). therefore, § 6 present, amended Nov. At as a matter of waivers, appears conditions attached to its own it the Commonwealth may greater leverage linking guilt have penalty phase waivers. Diaz, 353, People v. Cal.Rptr.2d 3 Cal.4th 834 P.2d Cf. (1992) (accepting validity linkage, light of such of the trial). government’s right jury to a *50 standard, it but ineffectiveness of the prejudice prongs
and/or
a frank
start with
should
analysis
me that
the
seems to
materially
colloquy are
of this
portions
acknowledgement
238,
Third, the post-conviction favorable to the findings made and credit tively, repeatedly testimony, disre- highly generalized based on Commonwealth For by the witnesses. provided detail specific garding trial counsel made indicated that court example, PCRA Indeed, counsel so witnesses.2 family to contact “every effort” by testified, leading question example, response for court, as follows: interrupt. mean to me. I don’t THE Excuse COURT: you, you told do investigators] everything [your Based on defend could to everything you possibly you think that did this defendant? Yes.
THE WITNESS: question? the next THE Fine. What’s COURT: 13,1999, N.T., Sept. specifics provided is that difficulty
The what had little recollection of that he amply demonstrated with names For when confronted example, was done. actually members, frequently counsel most Birdsong family of specific contact: any did not remember with Herbert investigators] spoke if Q: you [your Do know [Freeman, stepbrother]? Appellant’s I know. A: don’t George [Birdsong], about Junior?
Q: ... How I don’t know. [A:] finding "every effort” to majority the PCRA court’s
2. The dilutes 347-48, 250-51, "effort,” presum- op. 24 A.3d at Majority Opinion, testimony, quoted The as below. ably light actual of trial counsel’s there is no account- difficulty majority’s reformulation is that with the involved, necessary consider- degree which is a ing of the efforts assessing ation in reasonableness. Q: You don’t know if you spoke with him?
A: Correct.
Q: you Do know if [your investigators] spoke with him? No, A: I don’t know.
Q: How about Melvin Birdsong?
A: I don’t know.
Q: And that’s you [your either or investigators]?
A: That would be correct.
Q: How about Aserene Birdsong?
A: I don’t know.
Q: And that would be true you as to and the [investigators]? A: That’s correct.
Q: How about Patricia Birdsong?
A: I don’t any have recollection at this point.
Q: And that pertain would to the [investigators] your- self; is that correct?
A: That’s correct. How
Q: about Steve Birdsong?
A: I have no recollection.
Q: How about Angela Birdsong?
A: I have no recollection. N.T., 13, 1999, Sept. at 46-48. The surviving investigator’s testimony was that she was not aware that Appellant had multiple confirm siblings, and she was able to only a brief mother. See N.T., 4, contact with Appellant’s 2000, Jan. at Further, 25-26. trial counsel testified that he could not recall whether he had so much as asked about his Appellant child- hood. See N.T., 14,1999, Sept. at 24. that,
It be may light of the lack of memory and recorded information concerning the investigation, Appellant failed to satisfy his burden of an demonstrating inadequate investiga- record, however, tion. On this I cannot see how court’s finding affirmative of “every rationally effort” is sup- Rather, ported. my from perspective, finding reflects an inappropriate Furthermore, looseness with the record. eleventh-hour with the is tension perspective effort”
“every counsel con- of mental health examination —which see, N.T., defense, e.g., penalty phase heart of the sidered the before the 1999, evening occurring at Sept. 126— 240-41, 24 at A.3d Majority op. Opinion, See hearing. penalty at 341-42. that the testimo-
Next,
majority’s
assertion
I differ with
cumulative. See
would have been
father
ny
Appellant’s
fact,
point
at 349. In
24 A.3d
op.
Majority Opinion,
as a witness
was offered
family
Appellant’s
member of
no
Moreover,
life-history
the truncated
hearing.
the penalty
covering
examinations
of two direct
(comprised
presentation
brief and
and counsel’s
transcript),
six
pages
total of
three and
(covering
for life
substantially
argument
generic
seen
recurrence we have
disturbing
reflect a
pages),
one-half
*52
Sattazahn,
v.
of
cases.
Commonwealth
in a number
these
Cf.
(2008)
640,
a
648, 675-76,
(crediting
952 A.2d
655-56
597 Pa.
stewardship relative
finding
court’s
of deficient
post-conviction
mitigation presentation”);
truncated
similarly
a
“highly
to
320,
13,
O’Donnell,
n.
740 A.2d
559 Pa.
347
v.
Commonwealth
(1999) (“[l]t
with
198,
disagree
[the
is difficult to
214 n. 13
only
pages
four
of
that a
which amasses
defense
appellant]
preparation
reflect
or
adequate
does not
transcript simply
a
representing
evidence
mitigating
development
hearing.”).3
in a penalty phase
defendant
capital
longer had
penalty presentation would have been
I realize that the
3.
testify. A
professional
health
to
bal-
Appellant permitted the mental
however,
factor,
include consideration
of this
would
anced assessment
intellect)
(who undisputedly
was afforded
is of borderline
that
any
psychologist
the
was able to
very
process
information
little time to
generate any
very
trust and
expert had
little time to
provide, and the
very late in the
Appellant,
examination occurred
rapport with
as the
Moreover,
hearing.
frequently, a full
penalty
and on the eve of the
trial
history
necessary
the
to serve as
development of the defendant's life
is
testimony.
component
the
predicate
for the mental-health
factual
pre-trial
obligation
a
Additionally, capital
to conduct
counsel bears
mitigation.
investigation
reasonably available avenues of
exploring all
109,
(2008)
Williams,
Pa.
THE COURT: Pm not going permit you go into this. You think Judge [would Stout decided the have] case differ- ently known, rather, if she had this defendant had brother opiate [who] also had an addiction?
[COUNSEL:] Four. Four brothers had died. THE It COURT: doesn’t matter. What’s that got do with this trial? Wait a minute. There was six or seven witnesses who personally identified this defendant as being the shooter killer of two people.
Now, you have to show somehow that that was not a fair trial before Judge Stout. Judge, we’re into the penalty phase.
[COUNSEL]: *53 THE COURT: And at the penalty phase, Justice Stout evidence, that, heard all the not only Pennsylvania but the Supreme exercising unitary Court review went into all that and decided that under the presented evidence to the court that this defendant deserved the death penalty. Now you’re trying to show by testimony this of this that attorney for some reason he missed about going background into the and understanding of this man’s past history including addiction, four-year-old twelve-year-old etcetera. Yes, Judge.
[COUNSEL]: view, not a my in view that is my I think THE COURT: Now, history of his this court. before inquiry pertinent true, circumstances, has but mitigating under the family life the time when this toward towards sometime timely be to affected his con- have that would somehow event occurred shown that at all. You have not duct. Judge—
[COUNSEL]: have not shown it. You THE COURT: Maher and Dr. to call Dr. I would need [COUNSEL]: you genetic predisposition. Larson to show genet- who are saying people Are that you THE COURT: are on high Indians who example, ically predisposed, than country in this rights time have more drugs all the else? everybody because killing people around right go have a they
Do back- because of their the death get penalty can’t they are abuse, straight but who drug people their ground and they they shooting, do the abiding and law and honest you’re saying? Is that what the death get penalty? have to No, Judge. [COUNSEL]: me. It sounds it sounds like to
THE That’s what COURT: saying classify this case trying to somehow you’re like B, C, D, A, because all a fair trial get this defendant did which are mean- gone through, have things you of the my view. ingless Well, trying say I’m that— Judge,
[COUNSEL]: objection no to counsel We have ATTORNEY]: [DISTRICT is witnesses, if he thinks this somehow Judge, these calling change. going 13,1999,
N.T., at 99-101. Sept. lines, offered repeatedly court also these PCRA Along means of truncat- interim as a findings up highly generalized 5, 2000, See, N.T., at 160-61 Jan. testimony. e.g., ing further make “You want me to judge’s remark: (reflecting upbring- a difficult very now? He had finding right of fact where the neighborhood involved in the he was ing, right, forth, so and this was his brothers and among were gangs *54 I peer pressure.”). believe the approach to post-conviction litigation reflected the above excerpts suggests an insensi- tivity the nature of the weighing process in sentenc- capital ing and the high burden borne by prisoners the post- process. conviction judicious
I do support control of our proceedings pleas common judges. time Appropriate may limits be set on presentations; excluded; irrelevant matters certainly bemay reasonable interjections warranted; bemay and the presump- tion in favor of the validity a judgment of sentence is to be instance, however, enforced. In this various of the PCRA court’s own explanations demonstrate a reluctance to extend fair latitude to one bearing burden attending challenge to a judgment sentence in making the necessary record. bottom,
At it my is conclusion that the PCRA court’s approach post-conviction to this case does not reflect close, necessary judicial Hence, review. I would return the matter to it so that this may be I accomplished. note only that I case, find this to be a close in terms of whether a warranted, further remand is particularly due to the weight the aggravation, including Appellant’s perpetration of multiple murders.
Justice joins TODD this Dissenting Opinion.
v. HAMER, III, Respondent. Lionel Supreme Pennsylvania. Coui’t of
Aug.