COMMONWEALTH of Pennsylvania, Appellee, v. Jose BUSANET, Appellant.
Supreme Court of Pennsylvania.
Decided Dec. 19, 2002.
Reargument Denied March 20, 2003.
817 A.2d 1060 | 572 Pa. 535
Argued Dec. 6, 2000.
John P. Ellington, Iva C. Dougherty, Norristown, for Commonwealth of PA.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.
Justice CASTILLE.
On February 19, 1999, following a three-day capital jury trial, appellant was convicted of first-degree murder,1 aggravated assault causing serious bodily injury,2 aggravated assault with a deadly weapon,3 two counts of reckless endangerment,4 and possessing an instrument of crime.5 In addition, appellant was convicted of conspiracy to commit first-degree murder, conspiracy to commit aggravated assault, and conspiracy to commit reckless endangerment.6 At the penalty phase, the jury found one aggravating circumstance and no mitigating circumstances; accordingly, it returned a sentence of death.7 Trial counsel subsequently withdrew from the case and present counsel entered their appearance and filed post-verdict motions on appellant‘s behalf in which they claimed, inter alia, that trial counsel had been ineffective. Following an evidentiary hearing, the post-verdict motions were denied on December 22, 1999. This direct appeal followed. For the reasons set forth below, the judgment of sentence is affirmed.
I. Sufficiency of the Evidence
In all cases where the death penalty has been imposed, this Court conducts a review of the sufficiency of the evidence underlying the first-degree murder conviction. See
Here, Wilson Melendez testified that, in the spring of 1997, he began selling crack cocaine for appellant who was a drug dealer in Reading, Pennsylvania. Melendez also shared an apartment with appellant. Sometime in May of 1997, Melendez was present when another individual who sold drugs for appellant named “Celo” informed appellant that Jason
Melendez testified that, one night in late May of 1997, appellant left the apartment armed with a handgun and wearing a bulletproof vest. When he returned, appellant informed Melendez that he had just gone to Bolton‘s house with a friend and that he had “shot the house up.”
Melendez further testified that, on June 11, 1997, he was walking to a laundromat when appellant called to him from the second floor window of LaDonna Johnson‘s house. Melendez knocked on the door of the house and was admitted by Richard Boxley. At appellant‘s request, Melendez and Boxley left the house to purchase two bags of marijuana and two Phillies Blunt cigars. While Melendez and Boxley were attempting to buy marijuana, they saw Bolton and Tyrone Bryant walking down the street. When Melendez informed Boxley that one of the men was Bolton, Boxley ran to get appellant.
A short time later, Melendez encountered appellant and Boxley and informed them which way Bolton had gone. Melendez, Boxley and appellant then followed Bolton and Bryant for several blocks, during which time appellant stated that he was going to kill Bolton in broad daylight. After Bolton and Bryant had rounded the corner onto Sixth Street, appellant asked Melendez to look around the corner to see where Bolton was.
When Melendez looked around the corner, he saw Bryant speaking to someone on the second floor of a house. He also saw three people across the street at a church, four children playing outside and a woman sitting on a porch. Melendez testified that appellant told Boxley to approach Bolton first because Bolton would not recognize him. As Boxley was walking toward Bolton, his gun went off in his back pocket.
Melendez testified that, following the shooting, the three men returned to Johnson‘s house where appellant asked Boxley, Are you sure you got him? Thereafter, at appellant‘s instruction, Melendez hid the firearms used by appellant and Boxley at his mother‘s house. These firearms, a 9 millimeter Ruger and a Sturm Ruger double action revolver, were subsequently recovered by the police and were introduced into evidence at appellant‘s trial.
Tamika Johnson also testified at appellant‘s trial. She related that she was present at LaDonna Johnson‘s house on the morning of June 11, 1997, and that she overheard appellant tell Boxley that Bolton had forty-eight hours to live because Bolton had held up one of his boys. Later day, while she was at a neighbor‘s house, Johnson heard sirens and saw appellant, Melendez and Boxley running on Chestnut Street away from the direction of Sixth Street, the scene of the shooting. When she returned to LaDonna Johnson‘s house, Tamika Johnson saw appellant, Melendez and Boxley celebrating and yelling, Yeah, we got that nigger. Tamika Johnson testified that appellant instructed her to go to the crime scene and determine whether Boxley was dead. She did so, and, when she returned to LaDonna Johnson‘s home and informed appellant that the victim was going to die, Boxley appeared “scared to death” while appellant and Melendez remained happy.
Trooper Kurt Tempinski of the Pennsylvania State Police, an expert in toolmarks, ballistics and firearms, testified that bullet fragments and shell casings recovered from the crime scene matched the 9 millimeter Ruger and Sturm Ruger revolvers recovered by the police. In addition, the Commonwealth introduced into evidence a statement appellant gave to New York City police on July 1, 1997, in which he admitted, among other things, that he used a 9 millimeter Ruger during
The foregoing evidence is sufficient to establish beyond a reasonable doubt that Jason Bolton was unlawfully killed pursuant to a conspiracy in which appellant played an active part, including himself firing shots at the victim, which fully warranted a conclusion that he harbored a specific intent to kill. We now turn to appellant‘s specific claims of error.
II. Ineffective Assistance of Counsel
Appellant raises a total of seven claims of ineffective assistance of trial counsel during both the guilt and penalty phases.9 Appellant forwards his claims under both the federal and
Appellant raises two claims of ineffectiveness of counsel during the guilt phase. Appellant first alleges that trial counsel was ineffective for failing to present an opening statement to the jury. He asserts in summary fashion that, “[t]here can be no logical reason to waive an opening statement in a capital case,” and that the prejudice which resulted from this “unreasonable trial tactic” was “incalculable.” Trial counsel, however, cannot be deemed ineffective per se for failing to make an opening statement. See Commonwealth v. Rawles, 501 Pa. 514, 462 A.2d 619, 624 (Pa.1983) (failure to make opening statement is within realm of sound trial strategy). Appellant has not offered to prove why trial counsel in this case must be deemed to have had no reasonable basis for declining to give an opening statement. As the trial court noted in its well-reasoned opinion below, trial counsel could have had any number of perfectly reasonable strategic reasons for not giving an opening statement: “Perhaps the best of these is the fact that there was some uncertainty as to where the Commonwealth‘s evidence might lead in this case [and][i]f the Defense were to have made an opening outright denying the guilt of the Defendant, or averring a different version of facts than those presented, this might have destroyed the credibility of Defense Counsel and endangered their case.” Opinion at 9-10. Nor has appellant attempted to demonstrate how it is that, but for his trial counsel‘s waiver of the opening statement, there is a reasonable probability that the outcome of his trial would have been different. Because appellant has failed to rebut the constitutional presumption that counsel was effective, this claim fails.
Appellant next claims that trial counsel rendered ineffective assistance when he questioned appellant, who testified in his own behalf during the guilt phase, about his prior convictions, as follows:
Q: Now, before we get into your testimony, I‘d like to just ask you some questions. In 1991, you had a conflict with the law; is that correct?
A: Yes, I did. Q: And that resulted in a conviction for robbery?
A: Yes.
Q: And there was something else, was there not? An assault?
A: No, a robbery.
Q: Was there any—was there any other conviction?
A: Oh, yes.
Q: Tell the jury what it was, please.
A: It occurred on Rikers Island.
Q: What was it?
A: It was a[n] assault on an inmate.
N.T. 2/17/99 at 341. Appellant contends that, because the prior assault conviction did not involve dishonesty or false statement, the Commonwealth would not have been able to impeach him with it. See
In response, the Commonwealth does not dispute that it would not have been able to introduce the assault conviction to attack appellant‘s credibility. The Commonwealth instead notes that counsel had a formidable task as he was faced with appellant‘s multiple inculpatory statements as well as eyewitness and cohort testimony. Against that evidence was ar-
Assuming that this claim has arguable merit and that counsel lacked a reasonable basis for his conduct, we agree with the trial court that appellant has not proven that he was prejudiced by counsel‘s action in introducing the assault conviction. In arguing prejudice, appellant simply relies upon this Court‘s decision in Commonwealth v. Williams, 524 Pa. 404, 573 A.2d 536 (Pa.1990). In Williams, this Court held that the trial court had erred in permitting the Commonwealth to impeach the defendant with prior convictions that did not involve dishonesty or false statement, i.e., resisting arrest, assault and carrying firearms on public streets, and that such error was not harmless. That the improper admission of a defendant‘s prior non-crimen falsi convictions proffered by the Commonwealth for the purpose of impeaching the testifying defendant‘s credibility may be harmful reversible error, however, is not dispositive of the distinct question of whether a defendant was prejudiced as a result of his counsel‘s unreasonable introduction of such evidence for a different purpose. As this Court has recognized:
The harmless error standard ... which places the burden on the Commonwealth to show that the error did not contribute to the verdict beyond a reasonable doubt is a lesser standard than the [ineffective assistance of counsel] prejudice standard, which requires the defendant to show that counsel‘s conduct had an actual adverse effect on the outcome of the proceedings. This distinction appropriately arises from the difference between a direct attack on error occurring at trial and a collateral attack on the stewardship
of counsel. In a collateral attack, we first assume that counsel is effective and that not every error by counsel can or will result in a constitutional violation of a defendant‘s Sixth Amendment right to counsel.
Commonwealth v. Howard, 538 Pa. 86, 645 A.2d 1300, 1307 (Pa.1994) (citation omitted).
We are satisfied that there is not a reasonable probability that the misstep by trial counsel had an actual adverse effect on the outcome of the trial. Appellant does not allege that the Commonwealth exploited the evidence of his prior assault in any fashion, impeachment or otherwise. In point of fact, the exchange with counsel marked the only time during the course of the trial that the assault conviction was referenced. Although both trial counsel and the trial court later discussed other of appellant‘s prior convictions, neither mentioned the assault at Riker‘s Island. N.T. 2/17/99 at 438, 447. Importantly, the Commonwealth never argued to the jury that the prior conviction was a basis to reject appellant‘s testimony on credibility or other grounds. The fact that the reference was not introduced by the Commonwealth to impeach, that it was isolated and not exploited, combined with the strength of the Commonwealth‘s evidence—including the testimony of Wilson Melendez and Tamika Johnson, the ballistics evidence linking appellant to the shooting, and appellant‘s own inculpatory statements to the police—strongly indicate that, even in the absence of the non-exploited evidence concerning the Riker‘s Island assault, appellant would still have been convicted.
B. Penalty Phase Claims
Appellant argues that his trial counsel, who was trying his first capital case, was ineffective in his alleged “complete failure” to investigate and present mitigation evidence during the penalty phase.13 Specifically, appellant claims that trial counsel failed to interview ten of appellant‘s friends and family members and failed to present their character testimony at
Appellant‘s assertion that counsel failed to even investigate or consider presenting this character testimony in mitigation is contradicted by the post-verdict record. At the evidentiary hearing, trial counsel testified that, after consulting with appellant, the defense consciously chose not to pursue character testimony at the penalty phase because of a joint concern that such testimony would “open the door” to the Commonwealth presenting and arguing the evidence of appellant‘s bad character, including appellant‘s convictions for robbery and for the assault while incarcerated at Riker‘s Island, and additional evidence that he was involved with the “Bloods”
This Court noted in Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373, 382-83 (Pa.1986), that “[a]lthough evidence of good character may not be rebutted by evidence of specific acts of misconduct, a character witness may be cross-examined regarding his knowledge of particular acts of misconduct by the defendant to test the accuracy of his testimony and the standard by which he measures reputation.” Id. Although the bare fact of appellant‘s robbery and assault convictions were elicited by counsel during the guilt phase, no details of these crimes were presented, nor was there argument concerning what they revealed of appellant‘s character. Among the details not shared with the jury was the fact that the Riker‘s Island incident involved the stabbing of two prison guards. N.T. 12/17/99 at 23, 41, 47, 92. Meanwhile, no evidence at all concerning the assault in the Berks County jail or appellant‘s gang affiliations had been introduced. In addition, the trial court noted that there was sufficient evidence to permit the Commonwealth to cross-examine appellant‘s character witnesses concerning his activities as a drug dealer to test the accuracy and basis for their testimony. See Opinion at 14. In addition to the fact that appellant‘s character witnesses would have been subject to such substantial impeachment, the trial court, which heard the testimony of the witnesses at the post-verdict hearing, noted that, in his view, they were “largely incredible.” Id. This was so because, while the witnesses claimed to be close to appellant, they revealed such a convenient, or perhaps even “feigned,” unawareness of his criminal activities, or the extent or specifics of them, as to be “simply unbelievable.” Id. In light of these circumstances, we see no error in the trial court‘s determination that counsel‘s concern that the foregone character testimony would have opened the door to substantial, damaging evidence was reasonably based. Since counsel had an objectively reasonable basis for determining that the evidence would have done more harm than good, this claim fails.
Here, appellant failed to present any evidence at the post-verdict evidentiary hearing which shows that he suffers from any specific mental illness or defect that might have mitigated the crime. Appellant‘s mental health expert, Dr. William Russell, who was unable to interview appellant because appellant refused to meet with him, offered no diagnosis of mental disorder that might have been advanced in mitigation. N.T. 12/19/99 at 15.16 Appellant now adverts to the fact that trial counsel did not secure evidence regarding appellant‘s “commitment history and mental health history.” Initial Brief of Appellant at 19. But, as the trial court found, the juvenile medical and mental health records introduced at the hearing below revealed “no significant diagnosed mental disorder.”17
This is particularly so because, contrary to appellant‘s assertion that counsel did not even consider or investigate mental health evidence in mitigation, the post-verdict record reveals, and the trial court found, Opinion at 15-17, that trial counsel did consider that course. At the hearing below, counsel noted that he was aware from his discussions with his client that appellant had some history of psychiatric problems in his background. Counsel explained at some length his reasons for not pursuing such evidence at the penalty phase:
Because quite honestly, the jury I think on their own reached a conclusion, as every one of us could, that obviously someone who is in that, is in the line of work that he is in and settles his differences by shooting people is a person who is psychiatrically and psychologically dysfunctional, not
insane, not unaccountable for his actions. It wouldn‘t be hard to draw that conclusion. I don‘t see what we would gain by putting that evidence in.
* * *
Because [mental health mitigation evidence] would be directly contrary to the other evidence that came in in the case where he seemed to be wheeling and controlling the whole, frankly, the whole murder operation. He‘s telling them to go down and see whether or not the person is dead. He‘s giving orders as to what to do with the guns. He‘s obviously in a position where he‘s in some kind of—the impression that you would get from the testimony is in some kind of control of the situation.
* * *
I based my decision on what I felt was a sound trial strategy. And also I based my decision upon the fact that I felt that [at] the penalty stage perhaps the most important overriding consideration of all was that the attorney had to be completely honest and straightforward with the jury.
Perhaps more importantly, the jury had to feel that the attorney was completely honest and straightforward with them, and that if the attorney tried to behave in [a] manipulative, trick[y], dishonest, or deceptive way, it would only harm the client.
And under the egregious facts, operative facts of this case to put before the jury, for instance, that a sentence should be altered or modified because, as an example, reading the expert‘s report that at nine years old he had reading difficulties would be an argument so totally dishonest it would insult the intelligence of the jury and infuriate them to the detriment of the client.
N.T. 12/17/99 at 95-96, 100, 107-08.
This Court cannot say that the trial court erred in concluding that trial counsel‘s concerns that mental health mitigation
Appellant‘s reliance upon the United States Supreme Court‘s decision in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), in advancing this claim is misplaced. In Williams, the Court upheld a Virginia state trial judge‘s finding on collateral review that counsel were ineffective under Strickland v. Washington for failing to investigate and present mitigation evidence. In so holding, the Court noted that counsel had failed to even investigate “records graphically describing Williams’ nightmarish childhood, not because of any strategic calculation but because they incorrectly thought that state law barred access to such records.” Id. at 395, 120 S.Ct. 1495. The evidence that Williams’ counsel failed to locate included evidence memorialized in “documents prepared in connection with Williams’ commitment when he was 11 years old that dramatically described mistreatment, abuse, and neglect during his early childhood, as well as testimony that he was ‘borderline mentally retarded,’ and suffered repeated head injuries, and might have mental impairments organic in origin.” Id. at 370-71, 120 S.Ct. 1495. The Court further described Williams’ “night
Juvenile records contained the following description of his home:
“The home was a complete wreck. . . . There were several places on the floor where someone had had a bowel movement. Urine was standing in several places in the bedrooms. There were dirty dishes scattered over the kitchen, and it was impossible to step any place on the kitchen floor where there was no trash. . . . The children were all dirty and none of them had on under-pants. [The parents] were so intoxicated, they could not find any clothes for the children, nor were they able to put the clothes on them. . . . The children had to be put in Winslow Hospital, as four of them, by that time, were definitely under the influence of whiskey.”
Id. at 395 n. 19, 120 S.Ct. 1495 (citations to record omitted). After concluding that counsel had no tactical basis for failing to investigate this information, the Court agreed with the assessment of the Virginia trial judge—“the very judge who presided at Williams’ trial and who once determined [as required under Virginia law] that the death penalty was ‘just’ and ‘appropriate‘“—that there was a reasonable probability that the result of the sentencing phase might have been different if the jury had heard this evidence. Id. at 396-97, 120 S.Ct. 1495.
This case is distinguishable from Williams. The childhood evidence cited by appellant, which counsel failed to secure and produce, is of a different nature and quality than the evidence of borderline mental retardation and the “nightmarish” upbringing that counsel in Williams failed to present. Furthermore, unlike Williams, counsel here did not fail to pursue what evidence there was because he misunderstood Pennsylvania law, but because, in light of the evidence already presented in this case revealing appellant‘s controlling role in the crime, he did not think such evidence would have persuaded this jury. And finally, here, unlike in Williams, the judge
Appellant next claims that counsel was ineffective during the penalty hearing because he failed to object when the Spanish/English interpreter was not sworn in, as required by
Appellant has failed to demonstrate that an objection would have benefited him. According to the trial court, as an official court interpreter for Berks County, Ms. Herrera-Weaver was previously sworn in through her general oath as a court interpreter. Although the trial court could not recall exactly
Further, appellant notes that the prosecutor cut short his direct examination of Mr. Rosa because of what he perceived to be problems in translation resulting from the fact that Mr. Rosa was of Puerto Rican descent and Ms. Herrera-Weaver was of Mexican descent. But the fact that the prosecutor abandoned his direct examination of Mr. Rosa in no way demonstrates that appellant was prejudiced by trial counsel‘s failure to object when Ms. Herrera-Weaver served as a court interpreter without being sworn in and qualified on the record. If anything, appellant may have benefited from the prosecutor‘s difficulties in communicating with this witness, as he admitted at a sidebar that he was unable to elicit some of the testimony he had hoped Mr. Rosa would provide. N.T. 2/19/99 at 525.19
By contrast, the defendant must prove any mitigating circumstance. However, he only has to prove it by a preponderance of the evidence; that is, by the greater weight of the evidence. Put the evidence on a scale. Imagine a scale. One side is the aggravating. One side is the mitigating. And does it tip ever so slightly on the one side. Actually, with regard to this part here, the proof of the mitigating circumstance, you put whatever mitigating circumstance and the evidence supporting that on one side of the scale and the evidence against supporting it and, depending on how that is weighed, then you decide whether a mitigating circumstance has been proven by a preponderance of the evidence or not.
* * *
Now, in this case under the Sentencing Code, the following matters if proven to your satisfaction by a preponderance of the evidence can be—can be mitigating circumstances, the age of the defendant. . . . So that is a fact before you for your consideration as to whether or not it is a mitigating circumstance. The second possible mitigating circumstance, that the defendant‘s participation in the homicidal act was relatively minor. And the third is any other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.
N.T. 2/19/99 at 551-53.
It is well-established that appellate review of a trial court charge must involve a consideration of the charge as a
When voting on the general findings, you are to regard a particular aggravating circumstance as present only if all of you agree that it is present. On the other hand,—now this is very important—there are two possible aggravating circumstances. You must decide whether all of you agree that any one of those or both of them or none of them have been proven beyond a reasonable doubt before you can go into the weighing analysis or go any further before you could really reach the ultimate decision on death. However, with regard to a mitigating circumstance, only if one of you feels, believes that the defendant has proven a particular mitigating circumstance,—and three possible are listed, okay, three possible are listed for you—then a mitigating circumstance has been proven. And, therefore, in order to return a sentence of death, the aggravating circumstance must outweigh any mitigating circumstance that has been identified by one of you, not all 12, but just one. This different treatment of aggravating and mitigating circumstances is one of the law‘s safeguards against unjust death sentences. It gives a defendant the full benefit of any mitigating circumstances.
N.T. 2/19/99 at 554-55 (emphasis added). Thus, the charge, when viewed in its entirety, clearly instructed the jury that any mitigating factor found by one juror must be weighed against aggravating factors unanimously found by all the jurors. These instructions unquestionably fulfilled the mandate of Mills. Additionally, the verdict slip provided to the jurors instructed them to list the mitigating circumstance(s) found by one or more of us. Thus, there was not a reasonable likelihood that the jurors in [appellant‘s] case understood the challenged instructions to preclude consideration of relevant mitigating evidence offered by petitioner. Boyde v. California, 494 U.S. 370, 385, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990).
Appellant next claims that trial counsel was ineffective for failing to object to the trial court‘s failure to instruct the jury that the Commonwealth must prove each element of each aggravating circumstance beyond a reasonable doubt. The trial court gave the following instruction concerning the Commonwealth‘s burden of proof with respect to aggravating factors:
The Commonwealth must prove any aggravating circumstance beyond a reasonable doubt. This does not mean that the Commonwealth must prove the aggravating circumstance beyond all doubt and to a mathematical certainty. A reasonable doubt is the kind of doubt that would cause a reasonable and sensible person to hesitate before acting upon an important matter in his own affairs. A reasonable doubt must be a real doubt. It may not be one that a juror imagines or makes up to avoid carrying out an unpleasant duty.
N.T. 2/19/99 at 550-51. We are aware of no decision from this Court or any other court—and appellant does not cite one—that requires the court to charge that “each element” of an aggravating circumstance must be proved beyond a reasonable doubt. We note that the charge sub judice was consonant with Pennsylvania Suggested Standard Criminal Jury Instruction 15.2502F(2), and clearly, adequately, and accurately described to the jury the Commonwealth‘s burden of proof with respect to aggravating circumstances. Because there was no basis in existing law for counsel to forward the objection appellant faults him for failing to forward, counsel cannot be deemed ineffective. Finally, appellant has not demonstrated that, but for counsel‘s alleged error here, there is a reasonable probability that he would not have been sentenced to death. Accordingly, this claim fails.
Citing to no authority, state or federal, appellant asserts that he is entitled to relief due to the cumulative effect of the foregoing alleged instances of ineffective assistance of counsel. It is settled, however, that “no number of failed claims may collectively attain merit if they could not do so individually.” Commonwealth v. Bracey, 568 Pa. 264, 795 A.2d 935, 948 (Pa.2001) (quoting Commonwealth v. Williams, 532 Pa. 265, 615 A.2d 716, 722 (Pa.1992)). Because appellant has failed to demonstrate that any of his claims warrant relief individually, they do not do so when considered in toto.
III. Trial Court Error at the Post-Verdict Evidentiary Hearing
Appellant‘s next claim is that the trial court erred in refusing to interrupt the post-verdict evidentiary hearing and grant another defense continuance in order to allow appellant to be examined by his own mental health expert, Dr. Russell. Prior to the evidentiary hearing, appellant had refused to meet with Dr. Russell. During the evidentiary hearing, however, appellant apparently changed his mind about meeting with Dr. Russell and requested a continuance of the hearing so that he could do so. N.T. 12/17/99 at 26-27. The trial court denied the request.
The denial of a request for a continuance is within the sound discretion of the trial court and will not be reversed absent a showing of an abuse of discretion. Commonwealth v. McAleer, 561 Pa. 129, 748 A.2d 670, 673 (Pa.2000). An abuse of discretion is not merely an error of judgment; rather, discretion is abused when “the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the record.” Id. (citations omitted). The docket reflects that appellant requested and was granted three extensions of time to file his post-verdict motions with the trial court. A fourth motion, filed jointly with the Commonwealth, requested a continuance of the post-verdict evidentiary hearing due to the unavailability of Dr. Russell. This
Defendant was given more than adequate time to consent to an exam and failed to do so. We do not believe that our Court system should be held hostage by a fickle Defendant who cannot cooperate with his own counsel. The reason this continuance was denied was because of Defendant‘s own actions, and for those actions Defendant must be held accountable.
Opinion at 23. The trial court also noted that it denied the continuance because, inter alia, it was cognizant of its obligation to rule promptly upon post-trial motions in death penalty cases. Id. (citing
We are satisfied that the trial court did not abuse its discretion in denying appellant‘s request for a fifth continuance, raised in the middle of the evidentiary hearing, merely because appellant apparently experienced a change of heart concerning the advisability of cooperating with his own expert witness. Accordingly, this claim is denied.
IV. Statutory Review
Finally, this Court is required to conduct a statutory review of the death sentence. Pursuant to
(i) the sentence of death was the product of passion, prejudice, or any other arbitrary factor; or (ii) the evidence fails to support the findings of at least one aggravating circumstance specified in subsection (d).
Accordingly, we affirm the verdict and sentence of death imposed upon appellant by the Court of Common Pleas of Berks County.20
Former Chief Justice FLAHERTY did not participate in the decision of this case.
Justice SAYLOR files a concurring opinion in which Chief Justice ZAPPALA joins.
Justice SAYLOR.
CONCURRING OPINION
I join the Majority Opinion, save for the discussion concerning Appellant‘s claim that trial counsel was ineffective in failing to investigate and present evidence of Appellant‘s mental health history. In this regard, counsel testified during the post-verdict evidentiary hearing that he had “learned in very, very general terms from talking to [Appellant] that there was some kind of psychiatric problem;” however, counsel did not view such information as significant and did not believe that its introduction would have made any difference. Other than this general discussion with Appellant, counsel made no effort to ascertain the nature and extent of Appellant‘s mental health history. Moreover, apart from asserting that Appellant‘s role as an accomplice in the killing diminished his culpability and warranted the imposition of a life sentence as opposed to the death penalty, counsel did not introduce any mitigating evidence. Counsel justified such inaction based upon the belief that the proposed mental health evidence would have been inconsistent with the Commonwealth‘s proof that Appellant
As the majority acknowledges, “strategic choices made after a less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland v. Washington, 466 U.S. 668, 690-91, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984). Where, as here, counsel foregoes investigation, his judgment must be “directly assessed for reasonableness in all the circumstances,” while at the same time affording a heavy measure of deference to his decision. Id.1 Such assessment includes, inter alia, a comparison of the defense offered with that which the defendant has proposed. See generally Moore v. Johnson, 194 F.3d 586, 616–18 (5th Cir.1999) (evaluating the reasonableness of counsel‘s asserted strategic basis for failing to investigate and present available mitigation evidence in conjunction with such proof).2 Although a decision to not develop and present certain evidence may be deemed reasonable where such evidence is inconsistent with the defense theory, see, e.g., Commonwealth v. Williams, 557 Pa. 207, 250-51, 732 A.2d 1167, 1190 (1999), in this case, the defense theory was premised upon diminished culpability associated with Appellant‘s status as an accomplice. Evidence of Appellant‘s emotional or mental health problems was not necessarily opposed with this theory, as such information may have been viewed by the jury as rendering him less culpable. See Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 2947, 106
Nevertheless, I agree with the majority and the trial court that Appellant failed to demonstrate prejudice, as he refused to meet with the mental health expert retained following trial, thus preventing him from rendering an opinion or diagnosis bearing upon particular mitigating circumstances. In this regard, given the circumstances, including the continuances offered and opportunities provided to Appellant to submit to examination, I also support the trial court‘s decision to deny a further continuance to permit examination after Appellant finally acceded.
Chief Justice ZAPPALA joins this concurring opinion.
Notes
Opinion at 15 (record citations omitted).The strongest assertion we have found in those records is that [appellant] has oppositional disorder, Attention Deficit Disorder with Hyperactivity and Mixed Developmental Disorder ..., and this diagnosis occurred more than ten years prior to the date of trial. Our knowledge of these conditions finds none of them to be serious. Furthermore, [appellant‘s] own mental health expert, Dr. William Russell[,] was unable to diagnose [appellant] with any mental disorder.... Based on this evidence, we conclude that [appellant] has failed to show that he has any current significant mental disorder. As [appellant] has no disorder, we believe it would have been pointless for Defense Counsel to pursue a mental health expert for [appellant‘s] penalty phase.