Commonwealth v. BrownCommonwealth v. Brown
Lead Opinion
Aрpellant, John Wesley Brown, appeals from the Order of the Court of Common Pleas of Philadelphia County, denying his petition for relief pursuant to the Post Conviction Relief Act (PCRA),
The underlying facts of the case, as set forth by this Court on direct appeal, are as follows:
On June 10, 1990, appellant and his father, Wesley Brown, who was then seventy-seven years old, were together in their home in Philadelphia. A quarrel between the two occurred over appellant’s use of his father’s car for “hacking,” that is, an unlicensed taxi service. Appellant shot his father four times with a .38 caliber pistol and left him to bleed to death in their home. A neighbor who heard the shots called the victim’s granddaughter; she in turn called her grandfather. Appellant answered the phone and told his niece that her grandfather was outdoors. Appellant placed a .38 caliber revolver next to his father’s body and took $400 from his father’s wallet, then drove off in his father’s car. He disposed of the murder weapon by throwing it out the car window in Maryland en route to Georgia.
Two days later appellant was stopped at a road check in Georgia; a computer check of appellant’s driver’s license disclosed that the license was expired, that the car was stolen, and that appellant was wanted in Pennsylvania for murder. Appellant admitted shooting his father, but claimed it was done in self-defense after his father pointed a .357 magnum pistol at him.
Following appellant’s trial, the jury found him guilty of murder of the first degree, robbery, and possessing an instrument of crime. Following the penalty phase of the trial, the jury found that an aggravating circumstance existed, to-wit, that appellant had been convicted of a prior voluntary manslaughter; the jury also found three mitigating circumstances, namely, that appellant had no significant history of prior criminal convictions, that he acted under extreme mental or emotional disturbance, and that he had some other evidence of mitigation. In balancing the statutory factors, the jury concluded that the aggravating circumstance outweighed the mitigating circumstances, and unanimously reached a verdict of death.
Commonwealth v. Brown,
Following his conviction, Appellant obtained new counsel and filed a direct appeal to this Court, raising numerous issues of trial court error as well as claims of counsel ineffectiveness. Our Court affirmed the judgment of sentence on October 6, 1994. Id. On January 15, 1997, Appellant filed a pro se PCRA petition. Current counsel was appointed to represent Appellant, and an amended petition was filed on April 2, 1998. Thereafter, Appellant filed supplemental pleadings, which he captioned as either replies to the Commonwealth’s motions to dismiss or supplemental amended petitions. These pleadings were filed on August 26, 1998, October 9, 1998, April 1, 1998, and June 16, 1999. The Commonwealth responded to each pleading by filing motions to dismiss. On February 2, 1999, May 17,1999 and December 22,1999, the trial court conducted hearings for the sole purpose of determining whether an evidentiary hearing was warranted. After Appellant and the Commonwealth argued their legal positions, the trial court took the matter under advisement. On April 12, 2000, the trial court orally granted the Commonwealth’s motion to dismiss the PCRA petition, and on April 13, 2000, the court filed its order and opinion in support thereof.
In this appeal from the PCRA court’s dismissal of his petition, Appellant raises twenty-three issues, and numerous sub-issues, for our review. Initially, we note that this Court has jurisdiction over Appellant’s
Prior to addressing the merits of Appellant’s issues, we must first entertain the Commonwealth’s contention that Appellant’s claims are not cognizable under the PCRA. The Commonwealth argues that Appellant erroneously raises allegations of error as if he were presenting the claims on direct appeal and ignores his burden of proof under the PCRA. It further argues that Appellant’s boilerplate assertions of all prior counsel’s ineffectiveness, without providing the required legal analysis for demonstrating each layer of counsel’s supposed ineffectiveness, is insufficient to avoid waiver of the underlying claims. Upon careful consideration of the manner in which Appellant’s claims have been presented, and in light of the strict requirements of the PCRA and this Court’s case law interpreting such requirements, we agree with the Commonwealth that several of Appellant’s claims are not renewable. Each issue, however, must be examined independently to determine whether review of the merits is required.
In order to be eligible for relief, a PCRA petitioner must establish by a prepondеrance of the evidence' that his conviction or sentence resulted from one or more of the enumerated defects found in
With these principles in mind, we turn to Appellant’s allegations of error. For purposes of our review, we do not examine these issues in the order raised by Appellant in his brief. Rather, we begin with those issues that we find to be “previously litigated” under the PCRA because they were reviewed by this Court on direct appeal. We agree "with the PCRA court that Appellant’s challenge to the evidence supporting the aggravating circumstance of a prior conviction of voluntary manslaughter, set forth at
In his current appeal, Appellant additionally argues that the sole aggravating circumstance found is legally inapplicable to his case. To satisfy
The next claim that was previously litigated on direct appeal alleges that Appellant is entitled to relief because he was forced to wear shackles during his trial and because there was a large police presence in the courtroom (Argument VII). On direct appeal, we held that the trial court did not abuse its discretion in permitting Appellant to be shackled in the courtroom because Appellant offered no evidence that any juror saw the shackles or was influenced by the observation.
We also find waived several other issues that Appellant failed to raise on direct appeal. Appellant’s claims that the trial court gave an improper self-defense charge to the jury (Argument XII) and that his conviction and death sentence were the result of racial discrimination (Argument XVI) were never raised on direct appeal to this Court and are therefore not reviewable. Also waived are the following claims relating to jury selection: that prospective jurors were improperly dismissed for cause and were not life-qualified (Argument XIII), that the trial court improperly restricted Appellant’s right to voir dire prospective jurors (Argument XIV), and that the prosecution exercised racially discriminatory peremptory challenges (Argument XV). Additionally, we find waived the claims that the trial court erred in its reasonable doubt instructions (Argument XVII), and that the trial court failed to provide a “life without parole” instruction (Argument XVIII). These issues were available to Appellant on direct appeal when he was represented by new counsel. As he failed to raise them on appeal from the judgment of sentence, they are waived.
We turn next to Appellant’s claims of ineffective assistance of counsel. In Commonwealth v. McGill,
As we explained in McGill and expounded upon in Commonwealth v. Rush,
Pursuant to the mandate of McGill, where the petitioner has pled, presented, and proved the underlying issue of trial counsel ineffectiveness, a remand may be necessary to allow the petitioner an
Therefore, as a threshold matter, we must determine whether Appellant has properly preserved his remaining claims of appellate counsel ineffectiveness as required by McGill and Rush. We find that Appellant properly pled these layered ineffectiveness claims in a manner sufficient to warrant merits review. In his Brief to this Court, Appellant also adequately addressed the Pierce standard regarding the ineffectiveness of trial counsel. However, as detailed below, Appellant has failed to prove all three prongs of the Pierce test as it relates to each underlying issue of trial counsel’s ineffectiveness. Having failed to establish trial counsel’s ineffectiveness for each issue raised on appeal, Appellant cannot satisfy the arguable merit prong of the Pierce test regarding the ineffectiveness of appellate counsel. In light of this determination, a remand is not warranted here.
Pursuant to McGill and Rush, the first claim of appellate counsel ineffectiveness involves the issue of whether trial counsel was ineffective for failing to procure the decedent’s (Appellant’s father’s) criminal history (Argument II). Appellant also argues that appellate counsel was ineffective for not challenging trial counsel’s failure to raise a Brady
In examining these claims of appellate counsel ineffectiveness, we must determine whether Appellant satisfied the three prongs of Pierce as to trial counsel’s performance. We find that he did not. It is undisputed that the Commonwealth provided the defense with the decedent’s criminal record dating back to 1973, which included a 1973 conviction for violating the Uniform Firearms Act, and two convictions in 1973 and 1974 for driving under the influence of alcohol.
Appellant argues, however, that the Commonwealth failed to disclose the decedent’s 1930 Ohio conviction for robbery, his 1946 conviction for carrying a concealed deadly weapon, his 1953 conviction for a violation of the Uniform Firearms Act, and several drunk driving convictions from the 1950’s and 1960’s. Appellant contends that these convictions would have supported his claim of self-defense. In support of this allegation, Appellant relies upon a declaration of trial counsel, wherein counsel states that, had he been provided a complete criminal history of the victim, he would have investigated the background of the prior offenses and would have presented this material to the jury in support of his theory of self-defense and also as mitigation evidence in the penalty phase. Declaration of Daniel Greene, Appendix of Exhibits to Initial Brief of Appellant, Exhibit 5.
The Commonwealth persuasively argues that it has no obligation to provide a defendant with his victim’s criminal history, particularly where, as here, that record is equally accessible to the defense and the victim is the defendant’s father. See Commonwealth v. Spotz,
The related claim of appellate counsel ineffectiveness for not challenging trial, counsel’s failure to discover the decedent’s criminal history on his own likewise fails. The remoteness in time of the convictions and the fact that the jury was made aware of the victim’s 1973 violation of the Uniform Firearms Act, dispel any claim of prejudice. Having failed to satisfy the Pierce test as to trial counsel’s performance, his claim of appellate counsel ineffectiveness is unsupportable.
The next claim of appellate counsel ineffectiveness encompasses the issue of whether trial counsel was ineffective for
We find that there is no arguable merit to the issue of trial counsel’s ineffectiveness because the record at the time of trial did not reveal evidence of mental illness or abuse that would have prompted trial counsel to conduct a further investigation in that regard. In fact, the record established the contrary. In his sworn statement to the police, Appellant was specifically asked whether he had ever been treated for mental health problems. (N.T. 7/18/91, 748). Appellant responded “no.” Id. Moreover, a pre-sentence investigation report prepared by a psychologist who evaluated Appellant on December 10, 1991, indicated that Appellant reported no history of neurological, suicidal, or psychiatric problems. Exhibit B to the Commonwealth’s Motion of December 14, 1999, filed in Philadelphia County Common Pleas Court. The report further indicated that Appellant did not suffer from any major mental illness, but rather was diagnosed with “personality disorder N.O.S. [not otherwise specified], with some dissocial and anti-social features.” Id. The primary alleged basis for counsel to have suspected that Appellant was mentally ill at the time of trial is Appellant’s “obsession with space travel.” The record demonstrates, however, that trial counsel did not view such interest as irrational, but rather offered such evidence in mitigation by presenting the fact that he shared his interest in NASA and the space program with his niece and other children in the neighborhood, taking them to conventions, and educating them on thе subject. (N.T. 7/17/91, 585; 7/24/91, 1085, 1044).
Additionally, the record indicated that Appellant had not been abused by his father. In his testimony at trial when he was describing the events leading to the shooting, Appellant explained that his father had thrown a garbage can at his car moments prior to the homicide. (N.T. 7/19/91, 842). When asked whether his father had ever done that before, Appellant stated, “me and my dad never had any violence of any kind.” Id. He went on to state, “My dad had never hit me, not once.” Id.
Even assuming such abuse and mental illness did exist, Appellant never informed trial counsel of the same, and there was no objective evidence of record that would have prompted counsel to look further into the issues.
We must next determine whether appellate counsel was ineffective as a result of trial counsel’s failure to investigate and prepare for the penalty phase (Argument IV). As in the prior issue, Appellant alleges that trial counsel failed to present significant mitigating evidence of Appellant’s major mental illness, traumatic childhood, and organic brain damage. Although Appellant has produced a declaration of trial counsel wherein he admits that he did not conduct an investigation into Appellant’s mental illness, traumatic childhood, and organic brain damage, counsel states that he was unaware of Appellant’s deficiencies in this regard. As noted, the information available to trial counsel at the time of trial did not alert counsel to further investigate such issues. See Commonwealth v. Bracey, supra; Commonwealth v. Uderra, 550 Pa. 389, 398-402,
Rather than portray Appellant as mentally disabled, trial counsel portrayed Appellant as a caring friend and neighbor, a proposition consistent with the self-defense theory presented during the guilt phase. The PCRA court succinctly recognized,
All of the witnesses who testified for [Appellant] at the penalty phase portrayed Appellant as a hero (pulled witness from wreckage of auto accident); a counselor of wayward youth; a father-figure; a community leader; and a lover and protector or young children in the neighborhood.
Trial court opinion at 9.
Even assuming that Appellant’s claim is of arguable merit and that counsel failed to have a reasonable basis for failing to further investigate mental health and abuse issues in the penalty phase of trial, Appellant has failed to demonstrate that he was prejudiced by counsel’s substandard performance. Such a showing has always been a prerequisite to a claim alleging the ineffective assistance of counsel. See Commonwealth v. Pierce,
Appellant’s next claim of appellate counsel ineffectiveness involves trial counsel’s failure to impeach the misleading testimony of the medical examiner (Argument VI). At trial, Bennett Preston, M.D., the Assistant Medical Examiner for the City of Philadelphia, testified that the victim had been hit by three bullets: two of those bullets entered the victim’s left chest and the third entered his upper left outer arm, passed through the arm, reentered the victim’s body under his left arm and traveled under the skin, partially exiting through the back. Dr. Preston testified that the path of the bullet that entered the victim’s arm was consistent with the victim having his left hand raised in a defensive posture at the time he was shot, thus discounting Appellant’s theory that he had acted in self-defense. (N.T. 7/18/91, 758-766).
Appellant argues that Dr. Preston’s testimony is scientifically unsound and that trial counsel was ineffective for failing to obtain an expert to rebut it.
The Commonwealth argues that, contrary to Appellant’s contentions, Dr. Preston’s opinion was not based upon a “single gunshot wound,” but instead on a total of four wounds inflicted by a single bullet. Moreover, it persuasively notes that Dr. Contostavlos’ proposition, that the victim’s left arm was wounded while it was holding a weapon at Appellant, is belied by Appellant’s own testimony. At trial, Appellant testified that his father pointed a gun at him with his right hand. (N.T. 7/19/91, 902). Thus, whether the victim’s left hand was raised or by his side is irrelevant to the question of whether he was aiming a firearm at Appellant. The Commonwealth further notes that Dr. Contostavlos and Dr. Preston agreed that the bullets passed through the victim’s body in a downward direction, which refutes Appellant’s trial theory that he dove to the ground and fired up at his father in self-defense. Under these circumstances, we agree with the Commonwealth that trial counsel’s failure to secure Dr. Contostavlos to testify at trial did not prejudice Appellant and therefore trial counsel cannot be deemed ineffective. This being the case, Appellant cannot sustain his burden of satisfying the Pierce standard as to appellate counsel’s ineffectiveness.
Appellant’s next claim of appellate counsel ineffectiveness alleges that trial counsel failed to present material guilt phase evidence in support of his theory of self-defense (Argument X). Identical to his claims in Argument III, Appellant argues that trial counsel ignored evidence of the decedent’s history of firearm offenses and the abuse that Appellant suffered by the hands of his father. As noted in disposing of Appellant’s previous claims of ineffectiveness at 12, supra, Appellant did not demonstrate that he made counsel aware of his father’s abusive behavior. See Commonwealth v. Bracey,
Within this same claim of ineffectiveness, Appellant further contends that appellate counsel was ineffective due to trial counsel’s failure to hire a firearms expert to examine the evidence linking Appellant to the murder weapon. He asserts that he has currently retained such an expert who opined that the police were grossly negligent in failing to have the gun fingerprinted before the fingerprints were destroyed by the blood examination. He also contends that appellate counsel was ineffective as a result of trial counsel’s failure to object to testimony that twenty or more shotgun shells were found in Appellant’s room when there was no evidence establishing that a shotgun was used in the commission of the instant murder.
To determine the merit of this claim under McGill and Rush, we again look to whether there is arguable merit to the issue of trial counsel’s ineffectiveness for failing to have the firearm fingerprinted. Detective Bittenbender testified at trial that the handgun was supposed to be submitted for fingerprints, but was not because of a mistake made by the police department. (N.T. 7/18/91, 652-53). Because trial counsel had nothing to do with the reason why the gun was not promptly fingerprinted, there is no arguable merit to the issue of trial counsel’s ineffectiveness in this regard. Thus, the claim of
As to the issue relating to trial counsel’s failure to object to testimony that shotgun shells were found in Appellant’s bedroom, we find that Appellant has failed to demonstrate the prejudice prong of the Pierce standard as it relates to trial counsel’s performance. Appellant could not have been prejudiced by such testimony because Appellant himself testitied that he owned several guns, including a blank shotgun, as well as gun-related items. (N.T. 7/19/91, 831-32). Thus, trial counsel cannot be deemed ineffective and the claim of appellate counsel ineffectiveness necessarily fails.
Appellant also argues that appellate counsel was ineffective for failing to raise the issue that trial counsel improperly denigrated his client (Argument XI). Appellant argues that in the closing argument of the penalty phase, his counsel stated the following:
[T]hen my client, John Brown, has to be one of the most evil people that ever graced the threshold of this planet. He has to be rotten and malicious. He has to be the most evil person there ever was.
Appellant’s Brief at 62. Appellant contends that trial counsel’s denigration of his client emphasized to the ultimate sentence!- that he was a bad person.
This claim is belied by the record. Rather than arguing to the jury that Appellant was evil, trial counsel asserted that, if the prosecution’s version of the events were true, Appellant would have to be “the most evil person there ever was, but I suggest to you that he is not. He is not that.” (N.T. 9/22/92, 925). Trial counsel then explained why the prosecutor’s version of the events was not true. The issue of trial counsel ineffectiveness therefore lacks arguable merit and the claim of appellate counsel ineffectiveness fails.
Finally, we examine those claims that were not previously litigated or waived and do not allege the ineffective assistance of counsel. The first claim in this category alleges that Appellant was incompetent to stand trial and therefore his conviction and death sentence are unconstitutional (Argument V). We recognize that Appellant did not challenge his competency at trial or on direct appeal and first asserted the claim in his PCRA petition under the guise of ineffective assistance of trial counsel. In the current appeal, Appellant presents the issue of whether he was “unconstitutionally tried while incompetent.” Appellant’s Brief at 2, Issue V. As this issue was not raised on direct appeal, we would generally find it waived. This Court has consistently held, however, that the issue of whether a defendant was competent to stand trial is an exception to the waiver rule in cases on direct appeal. Commonwealth v. Tyson,
The issue of whether this case law applies with equal force in the PCRA context has recently divided this Court. See Commonwealth v. Santiago,
Our Court has similarly ruled in three previous cases. In Commonwealth v. Fernandez,
We elaborated on that proposition in Commonwealth v. Nelson,
We have long held that “the mental competence of an accused must be regarded as an absolute and basic condition of a fair trial.” Commonwealth v. Bruno,435 Pa. 200 , 205 n. 1,255 A.2d 519 , 522 n. 1 (1969). Accordingly, we have been loath to find waiver of such a claim. Commonwealth v. Marshall,456 Pa. 313 ,318 A.2d 724 (1974). Indeed, we have recently held that “when the issue presented is whether a person was competent to stand trial, the waiver rule is not applicable.” Commonwealth v. Tyson,485 Pa. 344 , 348-50,402 A.2d 995 , 997 (1979).
It is, of course, true that Tyson, id., and Marshall, supra, were direct appeals, and while Bruno, supra, was a collateral attack, it was not a PCHA petition. Nevertheless, our waiver doctrine,although judge-made and not statutory, is one we stringently apply. We have expressly discarded the “fundamental error” rule. Commonwealth v. Clair, 458 Pa. 418 ,326 A.2d 272 (1974). Thus, while not recognizing fundamental error, we nevertheless will not permit the waiver of a claim of incompetency, so basic is it to our concepts of justice that a trial of an incompetent is no trial at all. Although we recognize the PCHA includes a waiver provision of its own,19 P.S. § 1180-3(d) , having held the competency of an accused to be an absolute and basic condition of a fair trial, we further hold the no-waiver rule in Tyson to be applicable here as well.
Our Court reaffirmed the Nelson rule in Commonwealth v. Giknis,
Having established that this Court has precluded the waiver of competency claims under the PCHA in Fernandez, Nelson, and Giknis, we must determine whether we reach the same result under the provisions of the PCRA.
We clarify that our decision does not conflict with the seminal case of Commonwealth v. Albrecht,
Appellant argues that he was incompetent to stand trial and therefore his conviction and death sentence are unconstitutional In support of this claim, he attached to his PCRA petition the declaration of Dr. Richard Dudley, Jr., wherein Dr. Dudley states that based upon his examination of Appellant in 1999, he has “significant questions as to [Appellant’s] capacity to assist trial counsel.” Declaration of Dr. Richard Dudley, Appendix of Exhibits to Initial Brief of Appellant, Exhibit 14.
A defendant is presumed to be competent to stand trial. Commonwealth v. duPont,
The report of Dr. Dudley discloses that his examination of Appellant took place eight years after Appellant’s trial. While Dr. Dudley states that he has “significant questions” regarding Appellant’s capacity to assist trial counsel, he has not stated that Appellant was incompetent in 1991 when the trial occurred. Moreover, when evaluated by the court psychologist on December 10, 1991, Appellant was found “capable of understanding a sentencing procedure.” The doctor also found that Appellant “does not suffer from a major illness.” Trial counsel, who worked with
Appellant next argues that the proportionality review performed by this Court on direct appeal denied him due process (Argument IX).
At the time of Appellant’s trial, this Court was required to determine whether his death sentence was “excessive or disproportionate to the penalty imposed in similar cases.”
Appellant next argues that the PCRA court erred in failing to grant him an evidentiary hearing on his PCRA claims (Argument XXII). Appellant, however, does not identify which of his various issues warrant an evidentiary hearing. Rather, he asserts that, “based on the myriad material issues of fact requiring evidentiary resolution, it was error for the court below to dismiss Appellant’s petition without granting a hearing first.” Appellant’s Brief at 94. Such a broad declaration of error is insufficient to warrant relief.
Appellant also argues that the PCRA court erred in denying his requests for discovery (Argument XXIII). He asserts that he sought “discovery of, inter alia, whether any witness received payments in return for their [sic] testimony as part of the District Attorney’s witness protection program and the discovery provided to trial counsel as well as any other Brady material that exists in this case, and any notes or training policies on jury selection and the use of peremptory jury strikes in this and other cases.” Appellant’s Brief at 95. Appellant fails to specify
The petition fails to tie the broad allegations regarding the District Attorney’s policy of paying witnesses to the witnesses in Appellant’s own case. Allusions to discovery violations in other cases are insufficient to demonstrate that any such violations existed in this case. Appellant has not presented one iota of evidence, such as an affidavit from one of the witnesses in his case, to suggest that any of those witnesses received any economic benefits. We will not sanction a fishing expedition when Appellant fails to provide even a minimal basis for his claim. As Appellant fails to make a showing of exceptional circumstances pursuant toPa.R.Crim.P. 1502(e)(1) , the court below did not abuse its discretion in failing to grant the motion.
Finally, Appellant contends that the cumulative effect of the errors he has alleged in his brief entitle him to relief (Argument XXI). Because we find no merit to any of Appellant’s claims, their alleged cumulative effect does not warrant relief. See Commonwealth v. Blystone,
Accordingly, we affirm the order of the PCRA court.
Notes
. In Argument XX, Appellant attempts to overcome waiver of the aforementioned claims by baldly asserting the ineffectiveness of all prior counsel without setting forth the three prong standard for ineffectiveness established in Commonwealth v. Pierce,
. We further note that Appellant did not seek Justice Castille's recusal on direct appeal and has not sought recusal in the instant matter.
. It is well-established that the Pierce test requires the PCRA petitioner to demonstrate that: (1) the underlying claim hаs substantive merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and, (3) the petitioner suffered prejudice as a result of that counsel's deficient performance. Commonwealth v. Pierce,
. We recognize that the PCRA court neither identified Appellant’s failure to develop his layered claims of appellate counsel ineffectiveness as a ground for dismissal, nor did it offer him an opportunity to amend his petition to develop those claims. Instead, the court examined the merits of Appellant's underlying allegations of trial counsel’s ineffectiveness and found them to be without merit. Because we agree with this assessment, a remand is not required.
. We further note that in his reply brief, Appellant attempts to remedy some of the deficiencies in his initial brief and to comply with the various capital PCRA cases that were decided after his initial brief had been filed. Appellant attaches to his reply brief a declaration of appellate counsel, wherein counsel states, inter alia, that he had no tactical reason for omitting the claims raised in the PCRA petition and that it was not within his normal practice to present non-record based claims on direct appeal.
The Commonwealth has filed an application for leave to file a post-submission motion to strike Appellant’s reply brief or permit response. Therein, it contends that Appellant’s reply brief should be stricken for noncompliance with
We agree with the Commonwealth that an appellant is prohibited from raising new issues or remedying an original brief's deficient discussion in a reply brief. See
. Brady v. Maryland,
. Similar to his other exhibits, Appellant refers to Exhibit 5 as the "Declaration/Affidavit of Daniel Greene.” Appellant's exhibits, however, are not properly characterized as “affidavits” because they have not been sworn to by the declarant before an officer authorized to administer oaths. See
. The 1999 declarations upon which Appellant now relies on to establish his mental illness at the time of trial involve examinations that were conducted years after Appellant’s trial, and therefore did not exist at the time the penalty phase of the trial was conducted.
. Relying on trial counsel's declaration and our recent decision in Commonwealth v. Malloy,
Second, unlike Malloy, substantial evidence of mitigation was presented. In Malloy, trial counsel failed to conduct even a cursory review оf the appellant's background and offered no affirmative evidence at all for the jury to consider, only a brief argument and a stipulation. Malloy,
. Appellant further contends that the Commonwealth’s knowing presentation of Dr. Preston's materially false testimony violates his constitutional rights to due process. This claim is frivolous as a difference in medical opinion clearly does not amount to "false testimony.”
. To be precise, the Fernandez Court concluded that the appellant did not overcome the presumption that his failure to appeal was knowing and understanding, and therefore the claim was “waived.” Id. at 298. Considering that the Court in the preceding paragraph explicitly stated that waiver of competency claims was precluded under the PCHA, the Court presumably employed the term "waived” to indicate that the appellant had not satisfied his burden of demonstrating incompetence.
. Six Justices participated in the Nelson decision. Justice O’Brien drafted the lead opinion, which was joined by Chief Justice Eagen and Justice Nix. Although Justice Roberts filed a dissenting opinion, it is beyond cavil that he agreed with the rule of law cited supra. The first sentence of Justice Roberts' dissent states, “I agree with the majority . that this Court must remand the record for further proceedings on appellant's competency claim." Id. at 1001. A remand would be unnecessary if the competency claim was found to have been waived. Justice Roberts went on to disagree with the mandate of the majority as he would have allowed additional claims of ineffective assistance of counsel to be fully litigated on remand, as opposed to solely the competency issue. Justice Flaherty also filed a dissenting opinion, which was joined by Justice Larsen, which disagreed with the resolution of the competency issue. As four of the six participating Justices agreed with the rule of law at issue here. Nelson is precedential authority on that proposition.
. The Concurring Opinion disagrees with the analysis employed by this Court in Fernandez, Nelson, and Giknis and characterizes such decisions as ‘‘problematic,” “uneven,” and “frankly useless.” Concurring opinion at 501-02, 506-08,
. The Concurring Opinion repeatedly asserts that, contrary to a myriad of cases, our Court inappropriately "converts” the claim of ineffective of assistance of counsel into the underlying claim of whether Appellant was competent to stand trial. No such conversion has taken place. Consistent with the approach previously taken by this Court, we are simply examining the issue raised by Appellant. As noted, the issue presented in Appellant’s Brief is whether he was "unconstitutionally tried while incompetent.” Appellant's Brief at 2, Issue V. To the contrary, the issue raised in the appellant’s brief in each case cited by the Concurrence was whether counsel was ineffective for failing to challenge the competency of the accused or request a competency hearing. Commonwealth v. Matrero,
. Although the PCRA court did not specifically address this issue, it was listed as Issue V in Appellant’s Supplemental PCRA petition dated June 16, 1999.
. In 1997, the General Assembly repealed the requirement of proportionality review. This Court continues to undertake proportionality review on direct appeal of death sentences in cases where the sentence of death was imposed prior to June 25, 1997, the effective date of the repeal. See, Commonwealth v. Edmiston,
. Rule 1502, which was renumbered as Rule 902, effective April 1, 2001, provides that “no discovery shall be permitted at any stage of the proceedings, except upon leave of court after a showing of good cause." Pa.R.Cr.P. 902. As this rule was enacted on August 11, 1997, after Appellant's petition was filed, it is inapplicable. Our discussion in Lark regarding the inadequacy of the appellant’s claim, however, is relevant to our disposition of the instant claim.
. The Prothonotary of the Supreme Court is directed to transmit a complete record of this case to the Governor within ninety days of our decision in accordance with
Concurrence Opinion
concurring.
I join the Majority Opinion, except for its discussion of appellant’s layered claim of ineffective assistance of counsel deriving from counsels’ failure, at trial and on direct appeal, to challenge his mental сompetence to be tried. See Majority op.
Following the approach taken in the recent plurality opinion in Commonwealth v. Santiago,
The Santiago plurality declared that mental competency claims are an exception to the statutory command that issues not raised at trial or on appeal are waived under the PCRA, citing as sole support a 1970s-era judicial non-waiver doctrine crafted by this Court in direct appeal cases. See
The most basic tenet of Pennsylvania statutory interpretation is that courts must ascertain and effectuate the intention of the General Assembly.
The PCRAs waiver provision is drafted in plain and unambiguous terms: “an issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, ... on appeal or in a prior state postconviction proceeding.”
The Majority nevertheless concludes that the waiver provision cannot be applied according to what the provision plainly says, because the General Assembly had a different, but unexpressed, intention with respect to some defaulted claims. In its invocation of principles of statutory construction to defeat the plain meaning of the statute the Majority fails to identify any ambiguity in the statute. Since the polestar of ambiguity is lacking, there is no room for the Majority’s statutory construction. Absent constitutional infirmity—and none has been argued by appellant or by the Majority on his behalf—the plain language of the statute controls.
To achieve its preferred non-waiver result, the Majority in effect rewrites the post conviction relief statute. The Majority states that the statute must be read as if it said that the only defaulted claims waived for PCRA purposes are those claims that “are required to be preserved” at trial. But the statute does not say this. Indeed, the statute does not speak in terms of ephemeral judicial issue preservation doctrines at all. Instead, the PCRA waiver provision—contained in a statute that affords criminal defendants that which is afforded to no other litigant,
Instantly no competency hearing was held, nor was one requested. The issue as it had survived for us, then, is not whether appellant would have passed the two-pronged test for competency, it is rather only whether his counsel was ineffective for failing to raise the claim that he would not.
Commonwealth v. Nelson,
Moreover, even if judicial “construction” of this plain and unambiguous statute were appropriate, it is the Majority’s rewriting of the provision to include relaxed waiver which will lead to absurdity. Under the Majority’s rewriting, issues which had to be objected-to at trial in order to be reviewable on direct appeal are subject to PCRA waiver, while issues which did not have to be objected-to at trial in order to be reviewable on direct appeal are “not subject to the waiver provision of the PCRA.” Op. at 486-88,
The rather esoteric direct appeal relaxed waiver rule innovated for competency claims in Marshall and Tyson is not the most familiar of this Court’s historic relaxed waiver rules: that status belongs to the relaxed waiver rule formerly applicable in direct capital appeals.
If the PCRA waiver provision truly was “intended to mean” what today’s Majority says—i.e., once relaxed waiver, always relaxed waiver—then the principled underpinning of Albrecht has just been eviscerated. Contrary to the Albrecht Court’s understanding, a PCRA court’s declining to deem waived claims which were not required to be preserved at trial because of relaxed waiver principles could not run afoul of the PCRA waiver provision because that provision was “intended to apply” only to claims which were “required to be preserved.” And yet, countless capital PCRA petitioners since Albrecht have seen their previously “nonwaivable” claims dismissed upon PCRA waiver grounds. If the Majority believes that relaxed waiver must be resurrected on PCRA review in this instance, it should squarely address and overrule Albrecht, instead of creating a hopelessly contradictory PCRA waiver jurisprudence.
The Majoritys construction of the PCRA waiver provision also ignores the fact that until now this Court has not interpreted the PCRA as affording special treatment to defaulted claims of mental competency to be tried. As I noted in my Concurring Opinion in Santiago, the plurality’s approach there (which is now echoed by the Majority here) is squarely inconsistent with this Court’s decision in Commonwealth v. Marrero,
Equally unpersuasive is the Majority’s reliance upon three 1980 decisions from this Court decided under the PCHA—Commonwealth v. Fernandez,
The Majority is mistaken in deeming these three cases to inform, much less control, the waiver question under the PCRA. The Majority declares that the PCHA and PCRA statutory waiver paradigms “are nearly identical.” This is not
This distinction in the PCHA’s waiver standard as opposed to that found in the PCRA is not merely academic; indeed, it was essential to the unanimous decision in Fernandez, the first-in-time of the trio of cases cited by the Majority. As a matter of statutory interpretation, the Fernandez case is the only one of the three 1980 cases that makes any remote sense, since it is the only one which purports to apply the language of the statute, and thereby to recognize that the General Assembly is permitted a role in post-conviction matters. In holding that the defaulted competency claim in Fernandez could be renewable under the PCHA, the Court specifically invoked the distinct “knowing and understanding” language of the PCHA. Moreover, the Fernandez Court ultimately concluded that the competency claim was waived. The relevant analysis and holding reads as follows:
Fernandez’s contention here, that his plea was invalid due to his mental incapacity, is an issue that could have been raised on direct appeal and would, thus, be waived unless he rebuts the presumption that his failure to file a direct appeal was knowing and understanding or proves that extraordinary circumstances existed excusing his failure to file a direct appeal. Yet, proof that a defendant lacked the mental capacity to “knowingly and intelligently” enter a plea of guilty would be sufficient to rebut the presumption of a “knowing and understanding” failure to appeal where the incapacity shown is non-transitory. Mental incapacity, sufficient to prevent the entering of a valid guilty plea, would also prevent a “knowing and understanding” failure to appeal.
In the present case, the PCHA court concluded Fernandez did possess the mental capacity to enter a valid plea of guilt. Our examination of the record persuades us that this conclusion is warranted by the evidence. Fernandez has, therefore, failed to overcome the presumption that his failure to appeal was knowing and understanding. Thus, his claim was waived.
The Majority’s reliance upon the Nelson case is misplaced for distinct and multiple reasons peculiar to it. First, despite the fact that Nelson involved a similar issue and was decided a mere two months after the unanimous decision in Fernandez, neither the Nelson plurality opinion nor the responsive opinions ever cited to Fernandez; it is as if there were two different jurisdictions at work. Second, despite the Majority’s argument to the contrary, the notion that Nelson is a precedential decision is plainly erroneous. A “majority opinion” is “[t]he opinion of an appellate court in which the majority of its members
In Nelson, only three of the six participating Justices joined in the plurality opinion; the other three were in a dissenting posture. The Majority nevertheless argues that Nelson is precedential “for the rule of law at issue here”—i.e., apparently, a rule that this Court has the power to dictate to the General Assembly that defaulted mental competency claims are beyond its power to deem waived on collateral attack—by relying upon the dissenting opinion of Mr. Justice Roberts as the crucial fourth vote. Op. at 488 n. 12,
Third, even if Justice Roberts’ agreement that a remand was required in Nelson could be deemed a joinder in the “rule of law” Nelson “established,” it requires noting that the rule thereby “established” by Nelson was that a waived claim of mental incompetency is reviewable only as a claim sounding in ineffective assistance of counsel. Thus, in the very next paragraphs following the Majority’s abbreviated quotation from Nelson, the plurality actually disposed of the case as follows:
Instantly no competency hearing was held, nor was one requested. The issue as it had survived for us, then, is not whether appellant would have passed the two-pronged test for competency, it is rather only whether his counsel was ineffective for failing to raise the claim that he would not.
Accordingly, the case is remanded for an evidentiary hearing to determine whether trial counsel had “any reasonable basis” for foregoing a claim of “arguable merit.” ... Following such hearing should the court determine trial counsel was ineffective for not requesting a competency hearing, it should order such a hearing.... If no ineffectiveness is found, the judgment of sentence is affirmed.
Instead, the Giknis Court cited that portion of the Nelson plurality opinion which had cited Marshall and Tyson for the tangential proposition that competеncy claims are not waivable on direct appeal and concluded, without further explanation, that the two competency issues raised on collateral review in Giknis therefore must be reached on the merits. This rather remarkable, truncated analysis never acknowledged or realized that: (1) Tyson and Marshall involved direct appeals; (2) Nelson was a non-binding plurality opinion; (3) in any event, the language quoted from Nelson did not reflect the Nelson Court’s disposition, which considered the defaulted competency claim to be reviewable only as an ineffectiveness claim; (4) Fernandez was recent, unanimous precedential authority which took a different, statutorily-based approach to the PCHA waiver question; and (5) the Nelson plurality had recognized that Marshall and Tyson were direct appeal cases, not PCHA cases. To further add to the confusion on the Court in these cases, Giknis then went on to analyze the competency question both as a direct review matter and as an ineffectiveness matter, ultimately citing to the PCHA testimony of trial counsel as justifying his decision not to challenge competency: “[a]s counsel would best be in a position to judge the ability of a client to communicate to aid in a defense and the ability to comprehend the nature of the charges, we cannot find that counsel was ineffective.... ” Giknis,
I would avoid reliance upon these quarter-century old PCHA cases because, to put it mildly, they are uneven. No less than three distinct and conflicting approaches to PCHA waiver can be gleaned from the cases, and yet, the Court which issued all three rulings closely in time made no attempt to harmonize the divergent rulings. Moreover, the cases involved a very different statutory waiver standard, and thus, they are not relevant to the inquiry under the PCRA. And finally, the cases are frankly useless as a jurisprudential matter because they never explain or justify the crucial separation of powers issue of how it is that a Court faced with unambiguous statutory language may simply manufacture a judicial exception to that explicit language.
It is obvious that some Justices feel very strongly about mental competency claims, and would prefer that the General Assembly had afforded special relaxed waiver status to claims sounding in competency to be tried. But, the General Assembly clearly did not do that, and I would not rewrite the statute to indulge a different judicial preference. Moreover, I would not conclude that this Court has existing rational precedent which acts to prohibit the General Assembly from deeming defaulted competency claims to be unavailable for review under the PCRA. None of the cases cited by the Majority purport to hold that the General Assembly lacks constitutional authority to deem claims sounding in competency to be waivable, just like
In a system of separated powers, the only theoretically legitimate question which could arise from the sua sponte concern of the Santiago plurality and today’s Majority is whether application of the PCRA waiver provision to claims sounding in competency to be tried would be unconstitutional. Such an argument—which itself would pose a distinct (and presumably waivable) procedural claim of constitutional dimension—is not before us. If the question of constitutionality is the Majority’s true concern, it should await the case where the claim is raised directly, and decide it then. In the absence of a finding of unconstitutionality, we should not resurrect the PCRA relaxed waiver rule to negate proper legislative authority.
The Majority’s radical and unwise rewriting of the PCRA waiver provision will prove particularly harmful given this Court’s recent relaxed waiver decision in Commonwealth v. Roney,
Roney apparently will dictate that all sentencing claims of alleged constitutional dimension now implicate “legality” and therefore need not be preserved in order to be raised on direct appeal. By the logical operation of the Majority’s tortured statutory interpretation in the present case, such non-waivable constitutional sentencing claims will also no longer be subject to the PCRA’s waiver provision. And so, constitutional sentencing claims, like competency claims, are impervious to waiver. Such claims not only need never be preserved, but they may be raised will-nilly: for the first time in a PCRA petition; or as late as PCRA appeal; or, in light of unfortunate cases such as Fajohn v. Commonwealth,
Since the waiver in question on direct appeal derives from judicial doctrines, it is certainly within this Court’s power to craft such exceptions, as it did in Roney—albeit unwisely in my view. See
On the merits of appellant’s cognizable and non-waived claim that prior counsel were ineffective for failing to litigate the question of appellant’s competency to
Turning to the question of “affidavits,” the Majority notes that appellant supports a number of his claims by attaching unsworn “declarations” of would-be witnesses, which appellant characterizes as “affidavits” in his brief. The Majority accurately recognizes that these “affidavits” in fact are merely unsworn “declarations.”
I realize that this Court has been uniformly lax in recent PCRA appeals and has appeared to accept and adopt defense characterizations of these sorts of attachments as “affidavits.” But, in point of fact, these “declarations” are nothing of the sort and coming to terms with that fact should make for a more precise legal analysis in PCRA appeals. An affidavit is not self-certifying nor does it become certified by adoption once an attorney attaches it to a legal pleading. “By definition an affidavit is a statement of facts confirmed by oath beforе a judicial officer having authority to administer the oath.” Commonwealth v. Chandler,
I am aware that, in 1976, the definitions section of the Judicial Code adopted a more lax definition of the term “affidavit.” The Code provides that, subject to additional, more specific usages, the term affidavit when used in the Code, “[ijncludes an unsworn document containing statements of fact and a statement by the signatory that it is made subject to the penalties of
The PCRA, of course, is contained within the Judicial Code, but it never employs the term affidavit.
What makes an affidavit distinct from any other out of court statement, rumor, innuendo or falsehood is the oath and the certification. These elements are not mere formalities. The oath conveys to the declarant a sense of the very real consequences of a falsehood, including the potential for a felony perjury prosecution,
The Majority does not address the relevance or value of appellant’s declarations, instead finding that, even assuming their truth, they do not warrant substantive relief or an evidentiary hearing. Like the Majority, Mr. Justice, recognizes that appellant’s affidavits in fact are mere declarations and would conclude that the declarations of lead trial counsel and his associate counsel, along with other witness “affidavits” and defense proffers in this case, are enough to warrant an evidentiary hearing. Mr. Justice Nigro, on the other hand, concludes that the purported declarations of lead and associate counsel establish trial counsel’s ineffectiveness as a matter of law as to one issue, thus negating the need for an evidentiary hearing and cross-examination on that question. In my view, where a contested claim for PCRA relief is premised upon the sworn affidavits of witnesses and the truth of those accounts is a necessary element to the success of the claim, the greatest relief available is the award of an evidentiary hearing. A mere affidavit cannot possibly prove the ultimate merit of a contested matter which may turn upon a faulty memory or a credibility assessment. This is so even where the putative witnesses are members of the bar: in a system of laws and not men, no witness’s memory, analysis, and credibility is beyond prodding and challenge and even manipulation. Absent concession or stipulation of the material point by the Commonwealth, the most that an affidavit can demonstrate is an issue of material fact warranting an evidentiary hearing and ultimate judicial determinatiоn.
Unwitnessed and unsworn non-affidavits, such as are at issue in the case
Ultimately, for purposes of decision in this case, I am prepared to assume the truth of appellant’s witnesses’ “declarations” (as the PCRA court did and as the Majority does) and I join in the Majority’s substantive analysis, which rejects the claims dependent upon those declarations as a matter of law.
. Act of January 25, 1966, P.L. (1965) 1580, codified at
. This Court has since abrogated the direct capital appeal relaxed waiver rule. See Commonwealth v. Freeman,
. The Majority would distinguish these cases on the ground that the competency issue allegedly was presented in them only in the guise of ineffective assistance of counsel. Op. at 490 n. 14,
. Footnote 4 appears on page 502.
4. As a final point concerning statutory construction, it is also worth noting that the Majority's assumption that the General Assembly intended special treatment for claims involving mental competency is contradicted by the overall structure of the Act. Competency claims are not the only claims which have been afforded special treatment against judicial waiver doctrines. Claims implicating the jurisdiction of the court and claims of sentencing illegality have also been shielded from waiver. These claims, unlike competency claims, involve the very legitimacy of the court's asserted power over the individual. It is notable that the PCRA specifically deems cognizable claims involving the jurisdiction of the court and sentences exceeding the lawful maximum, see
. Claims of ineffective assistance of counsel soon proved to be the most common “extraordinary circumstance’’ invoked to negate the PCHA waiver.
. Notably, the declarations do not even state that the witnesses would be willing to repeat their allegations under oath in court.
. The nearest the PCRA comes to addressing the substance of pleadings is in Section 9545(d), governing requests for evidentiary hearings. That provision requires that the request include “a signed certification as to each intended witness stating the witness’s name, address, date of birth and substance of testimony and shall include any documents material to that witness’s testimony."
. In contrast, the Rules of Civil Procedure have adverted to and adopted the Judicial Code’s relaxed definition of affidavit. See
. In contrast, upon reviewing the Crimes Code provisions governing falsification crimes, see
Concurrence Opinion
concurring and dissenting.
I agree with the majority that Appellant is not entitled to relief on any of his claims relating to the guilt phase of his trial. I note my specific agreement with the majority’s treatment of Appellant’s claim that he was not competent to stand trial, including its holding that a post-conviction petitioner’s failure to raise a claim on direct appeal that he was incompetent at the time of trial does not constitute a waiver of that claim for purposes of the PCRA. However, unlike the majority, I believe that Appellant is entitled to relief on one of his ineffectiveness claims relating to his penalty phase.
Here, Appellant contends that his trial counsel was ineffective for faffing to present certain evidence of mitigation, including evidence of Appellant’s mental illness and traumatic childhood, at his penalty phase hearing and, much like Justice Saylor, I believe that Appellant is entitled to a remand on this claim. However, unlike Justice Saylor, who would remand for an evidentiary hearing on this claim, I would find that Appellant has already demonstrated, based primarily on the statements affixed to his PCRA petition from his trial and associate counsel, that his claim of trial counsel’s ineffectiveness has arguable merit, that counsel had no reasonable basis for his inactions here and that, given the circumstances of this case, he was prejudiced by counsel’s deficient representation.
. In his concurring opinion, Justice Castille makes much of the fact that the attorneys' statements at issue here, in which both trial counsel and associate counsel all but concede that trial counsel was ineffective at the penalty phase, were not sworn to and therefore cannot be labeled, nor carry the weight of, “affidavits.” While there is no indication that the statements were notarized, I cannot agree with Justice Castille that this omission relegates the statements to a status that is more akin to “irrelevant chatter.” Indeed, such an assessment lends little import to the fact that the statements were submitted by attorneys, who, unlike other lay witnesses, are bound by the Rules of Professional Conduct and who function with a unique understanding of the consequences, both criminal and disciplinary, that may result from submitting false evidence to a court. See Pa.R.P.C. 8.4 (it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation);
Dissenting Opinion
dissenting.
I respectfully dissent, as I would remand to the PCRA court for an evidentiary hearing on the Appellant’s capital, post-conviction petition. In accordance with the Post-Conviction Relief Act, Appellant provided the PCRA court with a series of declarations, including that of his trial counsel, to the effect that:
I was shocked by the jury’s guilt-phase verdict and I had not done any preparation for the penalty phase of the case.... I had no strategic or tactical reason not to adequately prepare for penalty phase.
I failed to interview any witness about any aspect of Mr. Brown’s mental health or upbringing. I was aware of Mr. Brown’s obsession with space and space travel but it did not occur to me to consult with a mental health expert. I have reviewed the affidavits submitted in this case that chronicle Mr. Brown’s history of mental problems, the abusе and neglect he received when he was young, his bipolar disorder and organic brain damage. Had I known such information, I would have presented it to the jury.... I had no strategic or tactical reason for failing to investigate, develop, or present this compelling evidence concerning Mr. Brown’s background, life history, and mental illness.
Appellant also presented a corroborating declaration from an attorney who was appointed as associate counsel:
[Lead counsel] was not prepared for the fact that this was a capital case. For example, on July 2, 1991, six days before trial, he indicated to me by letter that he was not sure whether the Commonwealth was going to ask for a death-qualified jury. [Lead counsel] did no penalty phase preparation prior to the guilt-stage verdict. After the guilt-stage verdict, he urged people who were in the courtroom to testify on [Appellant’s] behalf, but he did not conduct any interviews or ask anyone about [Appellant’s] background. Similarly, he asked [Appellant’s] girlfriend, Harriet Carter, to write down every good thing that she could think about him. He did not inquire about his background, childhood or his mental health. There was no strategic or tactical reason not to investigate [Appellant’s] history and background. Nor did [lead counsel] contact any mental health experts. There were several indications that [Appellant] was mentally ill. For example, [Appellant] was obsessed with space travel and signed his letters to me and [lead counsel] with “stardate.” Similarly, in several interviewswith the police, witnesses indicated that [Appellant] acted very strange. I have reviewed affidavits submitted in this case that chronicle [Appellant’s] history of mental problems, the abuse and neglect he received when he was young, and his bipolar disorder and organic brain damage. Had I known of such information, I would have urged [lead counsel] to present it during the penalty phase. It would have greatly strengthened Appellant’s penalty phase defense and explained to the jury the circumstances surrounding the crime. There was no strategic or tactical reason for failing to investigate, develop, or present this compelling evidence concerning [Appellant’s] background, life history, and mental illness.
Further, as alluded to in the declarations of counsel, Appellant also furnished the court with an attestation from a psychiatrist to Appellant’s suffering from major mental health impairments as of the timе of the commission of his offenses, including bipolar disorder and organic brain damage; a report of a neuropsychologist describing impairing effects of Appellant’s asserted mental health deficits in terms of his cognitive abilities and functioning; and life-history declarations from various witnesses attesting to Appellant’s abandonment and abuse during his childhood.
The United States Supreme Court has made very clear that capital counsel have a duty to conduct a thorough investigation of the defendant’s background in preparation for the penalty phase of trial. See Wiggins v. Smith,
The majority appears to accept that counsel in this case may not have conducted the sort of thorough mitigation investigation that is contemplated under prevailing norms, but despite the disturbing implications of the declarations presented, it rejects the proposition that a factual inquiry is implicated. With respect to the mental health dynamic, the majority posits that “the record at the time of trial did not reveal evidence of mental illness or abuse that would have prompted trial counsel to conduct a further investigation in this regard.” Majority Opinion, op. at 478-79,
Moreover, the majority’s proposition is not accurate. In fact, as the majority itself notes (albeit in passing), in a 1991 pre-sentence report which was presumably available to counsel, Appellant was diagnosed as suffering from a personality disorder. See Majority Opinion, op. at 478-79,
The majority also faults Appellant for not having apprised counsel of any mental health condition. See, e.g., Majority Opinion, op. at 478-81,
The majority also offers a brief assessment concerning the prejudice prong of
Q: Good morning again, Detective.
A. Good morning.
Q. I stopped you very briefly out in the hall a few moments ago, did I not?
A. Yes.
Q. I asked you a question, did I not?
A. Yes.
Q. Repeating that question, since that incident back in 1967 where Mr. Brown pled guilty to voluntary manslaughter and conspiracy, according to your records, has he been arrested or convicted of any crimes since that date?
A: Since the date of 1967, our records in the city of Philadelphia show that he has not been arrested in the city.
[Counsel]: Thank you very much.
N.T., Jul. 24, 1990.
The next witness was Appellant’s girlfriend, Harriet Carter, and her testimony opened as follows:
Q. I telephoned you last evening, did I not?
A. Yes.
Q. I told you over the telephone what the verdict was in this case?
A. Yes.
Q. I asked you to do something for me last night, did I not?
A. Yes.
Q. What did I ask you to do?
A. You asked me to write down everything good about John Brown.
N.T., July 24,1991, at 1032-33 (emphasis added). The bulk of the remainder of the Ms. Carter’s direct testimony (covering five pages of the transcript) consists of her reading the statement that she had prepared the previous evening. See id. at 1034-36. The remaining witnesses appear to have been persons Ms. Carter was able to summon to the courtroom, including her children Robert (whose testimony covers approximately 4 pages of transcript), Angela (2 pages), and April (2 pages); Ms. Carter’s brother (3 pages); Ms. Carter’s sister (1 page); and a friend of Ms. Carter’s (2 pages).
Thus, the record does not support the characterization of the attorneys’ post-conviction declarations as misrepresentations, but rather, strongly corroborates the declarations. Counsel’s presentation of the case for life imprisonment over death contains none of the deeper, explanatory-type evidence that would require an actual investigation and which Appellant now seeks to demonstrate was available to counsel, had he performed reasonably. Rather, it is precisely of the sort that could have been fashioned immediately before the penalty phase, as counsel have attested was the case and as the record supports.
It remains my position that, in circumstances (such as here) in which affidavits, declarations, or similar evidentiary proffers are presented to a PCRA court which, if believed, would bring the reliability of the death verdict into legitimate question, a post-conviction hearing and associated fact-finding are required. See
I also note my disagreement with several other aspects of the majority’s articulation and application of relevant legal precepts controlling the treatment of Appellant’s claims. For example, the majority suggests a very broad application of the previous litigation doctrine to bar Appellant’s claim that his trial and direct appeal counsel were ineffective for failing to challenge the legal availability of the sole aggravator on grounds of statutory construction, based on the Court’s disposition on direct appeal of a claim of prosecutorial misconduct in the Commonwealth’s underlying evidentiary presentation. See Majority Opinion, op. at 470-73,
The majority also articulates the exception to McGill’s remand rule by indicating that a petitioner must have pled, presented, and proved his underlying claim in order to be eligible for the remand. See Majority Opinion, op. at 475-78,
. Even if the presentence report had not contained indicia of a personality disorder on Appellant’s part, I have previously expressed my difference with the position that the existence of a pre-sentence report prepared at the instance of the government obviates further mitigation investigation on the part of capital, penalty-phase counsel. See Commonwealth v. Fears,
. See, e.g., Allen v. Woodford,
. See generally ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 4.1, commentary (rev. ed. Feb.2004) (observing that “mental health issues are so ubiquitous in capital representation that the provision of resources in that area should be routine”); id.
. In defense of its apparent position that it is not necessary to explore what avenues counsel pursued, the majority cites Commonwealth v. Bracey,
It is also noteworthy that in both of the cases cited by the majority, Uderra and Bracey, the defendant was afforded an evidentiary hearing on the penalty-phase ineffectiveness claim, which is the sole relief that I would presently award.
. To the extent that the majority's prejudice analysis is predicated on the assertion that Appellant has failed to proffer that evidence of mental infirmity existed at the time of trial, see Majority Opinion, op. at 479-82,
. The only other witness was Appellant's sister, who had testified as a Commonwealth witness in the guilt phase of trial.
. In addition, summary disposition of Appellant’s post-conviction petition was also procedurally inappropriate here, as the record does not reflect that Appellant was furnished pre-dismissal notice of the reasons why the court was denying a hearing, as is required by Criminal Procedural Rule 909(B)(2)(a).
. The majority controverts the observation that Appellant was denied an opportunity to prove his claim in this case, via reference to the PCRA court's having conducted "hearings solely to determine whether an evidentiary hearing was required.” See Majority Opinion, op. at 481-82 n. 9,
. Compare, e.g., Majority Opinion, op. at 471-73,
. Such remand, of course, might be avoided by merely addressing the underlying merits of Appellant’s statutory construction claim.