Commonwealth v. Collins

A.2d 564 Appellee/Cross-Appellant, Pennsylvania, COMMONWEALTH COLLINS, Appellant/Cross-Appellee. Ronald Pennsylvania.

Supreme Court 27, 2004. Submitted Jan. 27, 2005. Dec.

Decided Wiseman, Philadelphia, Michael for Ronald Collins. Burns,

Hugh Philadelphia, Amy J. Zapp, Harrisburg, Com. C.J., CAPPY, CASTILLE, NIGRO, NEWMAN,

Before SAYLOR, EAKIN, BAER, JJ.

OPINION Chief Justice CAPPY. Collins, herein, Appellant

Ronald appeals from the order of the of Court Common Pleas of Philadelphia County denying guilt phase claims under the Relief Post-Conviction Act (PCRA), § 42 9541 et seq. Pa.C.S. The ap- peals order, from granted that same which Appellant relief in the form of a penalty phase new For hearing. the reasons herein, stated affirm the Order of the Court of Common Pleas. 21, 1994,

On October a jury convicted of Appellant two counts of first degree murder and one count each of aggravat- assault, ed reckless endangerment, possession and of an in- strument of crime.1 Following penalty phase hearing, the jury found aggravating two circumstances related to each of the murders one mitigating jury circumstance.2 The then found that the aggravating circumstances outweighed the mitigating circumstance in both cases and fixed the penalty at death. This court affirmed the sentences of death on Novem- underlying Appellant's 1. The facts convictions are set forth at Common- Collins, 46, (1997). wealth v. 550 703 A.2d 418 murder, regard 2. With jury to the first Appellant found that killed a prosecution felony witness to a murder or other that he committed for him, purpose preventing testifying against of the witness from 9711(d)(5), § Appellant Pa.C.S. and had been convicted of another issue, murder either before or at the time of the offense at 42 Pa.C.S. 9711(d)(ll). murder, regard § With jury the second found the (d)(ll) aggravator same killing and that the was committed in further- business, Appellant’s drug (d)(l4). ance § of 42 Pa.C.S. The circumstance, mitigating 9711(e)(8), catchall § 42 Pa.C.S. was found for both murders. denied his Supreme Court and the United States ber 30,1998. November for certiorari on petition authorizing a Pennsylvania signed warrant The Governor then Appellant 1999. February execution Appellant’s Petition for Post pro Execution and a se a Stay filed The Relief on December Conviction Collateral resolution pending execution stayed Appellant’s court PCRA New new counsel. litigation appointed of the PCRA 15, 2000. The August Petition on filed an amended Petition. Appellant’s on evidentiary hearings held court PCRA court affirmed hearing, PCRA evidentiary Following granted penalty but new murder convictions degree the first hearing, penalty phase new hearing. granting phase this case to the United States Court analogized court PCRA Horn, Jermyn case of for the Third Circuit Appeals (3d that the Cir.2001), in the court concluded which F.3d 257 child Jermyn’s about testimony and specific lack of directed jury’s left the mental illness Jermyn’s on impact hood and its incomplete. state of his mental awareness Initially, parties appeal. order that the It is from this jurisdiction Appellant’s peti over that this court has note relief post from the denial of conviction appeal tion as a direct 9546(d). Additionally, § 42 case. Pa.C.S. penalty in a death Appellant’s the denial of jurisdiction to review court has court vacated though the PCRA claims even guilt phase v. Bryant, of death. See Commonwealth sentence Appellant’s (2001) 646, that of (indicating 648 review Pa. 566 relief should denying guilt phase court’s decision the PCRA court). the trial by of a new sentence imposition precede claims, the PCRA court guilt phase Appellant’s to Turning previously of claims were Appellant’s that two concluded court’s case that this response, Appellant argued In litigated. issues, by as defined litigated” holding “previously law 9543(a)(3) 9544(a)(2), could not be overcome §§ Pa.C.S. counsel’s ineffectiveness conflicted with a claim of forwarding assistance of counsel. right Amendment effective the Sixth of argument worthy Appellant’s acknowledged We supplemen- to file parties and ordered the closer consideration issue: following tal on the briefs interpreted by as litigated doctrine previously

Whether that are claims of ineffectiveness precluding this court as consti- is proceeding first time a collateral raised for the not, “previ- of proper interpretation if tutional and what 9544(b).3 § set forth in 42 Pa.C.S. litigated” is as ously Pennsylvania, of Supreme Court Per Curiam Order 9/30/2004. simply interpreta- that an general argument

Appellant’s of precluding that has the effect litigated” tion of “previously ineffectiveness, not been raised previous- claims of which have rights granted consideration to ly, give adequate does not constitutions or to the nature of ineffec- the federal and state con- support argument, Appellant claims. of his tiveness statutory language merely prohibits tends that the is clear and an issue. presenting Appellant a defendant from “identical” argues interpretation “previously then this court’s of claims of counsel’s ineffectiveness litigated” encompassing that the discrete issue of counsel’s ineffectiveness has ignores has points not been out that a defendant litigated. Appellant at trial and on direct right effective assistance counsel under both the federal and Constitutions. appeal Pennsylvania Lucey, Evitts 83 L.Ed.2d 821 U.S. S.Ct. (1985) in- the U.S. Constitution amend. VI as (interpreting coun- cluding right appeal to effective assistance direct Const, V, Thus, sel); § § 9 and art. Appellant art. interpretation “previously litigat- that this court’s concludes under- attacking ed” to include claims counsel’s effectiveness right by precluding mines the constitutional attacking performance. defendant from counsel’s that an of interpretation “previously continues Appellant claims fails to litigated” precluding as ineffectiveness acknowl- by often the means edge post-conviction only review is of challenge a criminal can the effectiveness which defendant 9544(b), Although the order listed the relevant section as as both recognized, parties the iteration of that was in error and the subsection 9544(a)(2). § purposes of this was 42 Pa.C.S. relevant section for order 54 counsel,

his direct prior including appeal Appel- counsel. lant also out that the for the points statutory provi- reason finality prevention sion—the concern with and the of repetitive filings today and vexatious of less moment than it 35 —is this court the years ago, strictly interpreted since has one- PCRA, year by time limitations of the itself prevents which reasons, For repetitive filings. Appellant vexatious these 9544(a)(2) § offers that this court interpret literally, should limiting only filings those which raise claims of trial court error or ineffectiveness that actually presented were decided on direct appeal.

The the responds previous Commonwealth PCRA’s litigation infringe does not a defendant’s consti- provision upon Rather, right provision simply pre- tutional to counsel. the rejected previously cludes a claim of trial court error from as the basis of an serving allegation counsel’s ineffective- ness. Such a result is consonant -with the PCRA’s bedrock Peterkin, principles finality. See Commonwealth 547, 638, (1998); 722 A.2d 642 v. Haag, Commonwealth 570 (2002). 271, Thus, Pa. 809 A.2d 287 unambig- PCRA’s provision interpreted uous should continue to be to foreclose repetitive litigated claims that were on direct and to appeal finality judgments. ensure The asserts Commonwealth “previous litigation” merely that the bar is the codification of doctrine, of the case” provides “law which later phases of a matter should not litigated reopen issues decided by another of the same court or judge higher court Furthermore, in the earlier phases involved of matter. decisis, uphold interest stare this court should its interpreting previous litigation numerous cases the PCRA’s The provision. points out that this court has consistently interpreted the doctrine to previous litigation preclude reconsideration of a claim that serves as basis for an if allegation underlying of ineffectiveness issue was Bond, rejected on appeal. E.g., direct Commonwealth v. (2002); McCall, Pa. 819 A.2d 33 Commonwealth v. (2001); Pa. Carpenter, Commonwealth v. (1999). reasons, all 725 A.2d 154 For these concludes that this continue court should interpret previous litigation the PCRA’s provision preclude issue, of an reconsideration even when the issue is raised in the context of ineffective assistance of counsel. mind, that in we turn to the statutory provi-

With relevant sions, which are as follows:

(a) eligible General rule.—To be for relief under sub- petitioner must chapter, plead prove by prepon- derance of the all of the following: evidence :{«

si? sfc (3) allegation That the of error has not been previously litigated or waived. 9543(a)(3). §

42 Pa.C.S. (a) litigation. Previous of this an purposes subchapter, —For has been previously litigated issue if:

[*] ^{[*] [*] [*] [*] [*]} (2) highest appellate court in the petitioner which could as a right have had review matter of has ruled on the merits issue; of the 9544(a)(2).4 §

42 Pa.C.S. subsections, From these it is clear that the relevant 9544(a)(2). statutory inquiry § is the term “issue.” 42 Pa.C.S. There nothing this subsection defining “issue”. That term, in “pleading as used and practice,” is understood to certain, mean “a single, material point, deduced allegations and of the pleadings parties, which is affirmed on the one side and denied on the other.” Law Dictio Black’s Thus, 6th ed. 831. “issue” refers to the discrete legal nary, ground that was forwarded on direct appeal and would have See, entitled the defendant to relief.5 e.g., Sanders v. United PCRA, predecessor post-conviction 4. Under the only review resulting available where the error in the conviction has not been waived,” 3(d). “finally litigated § or 19 P.S. An issue was "final- 1180— ly litigated Supreme Pennsylvania if the Court of the Commonwealth of 4(a)(3). § has ruled on the merits of the issue.” 19 P.S. 1180— 9544(a)(3) § 5. specifically Pa.C.S. refers to issues raised on collater- review, today. al but has no relevance to our discussion (1963) States, 1068, 10 L.Ed.2d 148 373 U.S. 83 S.Ct. legal granting “a sufficient basis for (defining “grounds” as allegations The theories sought by applicant”). relief a subset of the issue ground simply are support many there can be theories way, Stated another presented. issue, ultimately, but single in of a allegations support or 9544(a)(2) raised and legal ground refers to the discrete § level, Thus, this at the most basic on direct review. decided legal ground of the same relitigation prevents section See, allegations. e.g., theories or Common under alternative (1973) Wilson, 376, (concluding A.2d 9 v. 452 Pa. 305 wealth in claim of trial counsel theory support of same new since the claim decided unavailing was was ineffectiveness in direct Com petitioner previous appeal); adversely (“A (1972) Slavik, 424, 449 Pa. 297 A.2d 920 v. monwealth relitigate validity plea not entitled to of his defendant is he had theory argument time he offers a new or which every advanced.”). understanding our of upon not Based previously 9544(a)(2), question § of purposes the term “issue” is is a claim of ineffectiveness today simply before us whether in merely theory an alternative legal ground a discrete raised on direct underlying of the same issue was support appeal. that this question appeared

It not until the mid-1990’s was can be origin question The of this frequency. relative Peterkin, in v. this court’s decision Commonwealth traced to forth, (1994), Pa. A.2d 121 wherein we set 649 fashion, petitioner of has cursory proof burdens PCRA including that on litigated ap- of claims

post-conviction previously review by alleging ineffective assistance cannot be obtained peal prior theories of relief to by presenting new claims. Commonwealth v. Wil- previously litigated support (1973). son, 452 Pa. 305 A.2d 9 added). Peterkin, The court did (emphasis 649 A.2d at of this but in this phrase, applying the contours explore case, held a claim “previously rule to the facts of the on Peterkin raised claims ineffectiveness litigated” when ineffec- raise these same attempted to and then appeal direct Thus, Id. at collateral review. claims on tiveness clear context was in that litigated” meaning “previously the same issues to raise attempting appellant since the however, noted, that the The court also proceedings. both fail- conduct for counsel’s challenged appellate also appellant found This claim was appeal. issue on raise or brief this ing to therefore, substance, discussed above “in the one to be 124 n. 3. Id. at litigated.” previously deemed in a Peterkin, often phrase employed Following that were trial counsel ineffectiveness that claims of way direct were appeal raised on on an issue that was based merit of the claim and the litigated”; precluded “previously represen- of his adequacy conduct and relating to counsel’s See, v. Commonwealth e.g., examined. tation were never (1995) (reversed on other 656 A.2d 877 Christy, Travaglia, grounds); Albrecht, 31, (1995). Indeed, v. 554 Pa. 352 Commonwealth 693, (1998), fully this more explained concept we 720 A.2d 703 as follows: by claiming attempt requirement evade

Appellant’s because he must have been ineffective appellate that if is properly presented on this issue should have succeeded a claim for relief The PCRA unavailing. requirement if nullity would be rendered previously litigated not be decided every be to revisit issue compelled this court could that that decision the bald assertion appeal upon on direct was erroneous.

Albrecht, 703; v. Abu- at see also Commonwealth 720 A.2d (2003); Jamal, 724, v. Pa. 833 A.2d 719 Commonwealth 574 Bond, 588, (2002); v. A.2d 33 Commonwealth 572 Pa. 819 264, (2001); A.2d 935 Bracey, 568 Pa. 795 (1999). Thus, Pursell, 233, our case Pa. 724 A.2d 293 law 555 an “alter a claim of counsel ineffectiveness to analogized has issue.6 We support or same theory” allegation native rules, course, exceptions. many general there have been 6. Of as with recognized exception akin to an "after- notably, has an Most this court presenting new exception when the claimant is discovered” evidence 58 so, however,

have done fully analyzing without whether the nature an ineffectiveness claim a legal ground discrete relief, entitle would a defendant to and not some alterna tive theory allegation. This distinction been highlight has ined our recent case emphasized law and have underlying of error is claim different from the collateral claim of ineffectiveness in circumstances different from those at Gribble, 647, issue in this case. See Commonwealth v. 580 Pa. 455, (2004); Jones, 868 A.2d 471-72 Commonwealth v. 572 Pa. 343, 598, (2002); Williams, 815 A.2d 615 Commonwealth v. (2001). 553, 517, Moreover, 566 Pa. 782 A.2d 535 citing Morrison, 365, 2574, Kimmelman v. 477 U.S. 106 91 S.Ct. (1986), L.Ed.2d 305 we have indicated that underly while the claim ing of trial court error is relevant to a claim of assessing ineffectiveness, it is only relevant the extent that it impacts assessment under the three prong ineffectiveness test.7 Grib ble, Jones, 472; 615; 863 Williams, A.2d at 815 A.2d 782 Thus, A.2d at 535. we now turn our attention to the nature of an ineffectiveness claim. above,

As noted Pennsylvania United States and Consti provide tutions a defendant right with the to effective assis tance 830, of counsel. Evitts v. Lucey, U.S. 105 S.Ct. (1985) L.Ed.2d (interpreting U.S. Constitution amend. including right VI to effective assistance of counsel); direct appeal Const, V, § art. § and art. Kimmelman, the court considered whether a defendant Amendment, claim, could raise a Sixth ineffectiveness on collateral review counsel’s attacking performance regard support evidence in of the ineffectiveness claim. See Commonwealth v.

Moore, (2004) (noting 98 n. 5 that the issue evidence”); litigated "previously does not rest on Commonwealth v. Miller, 500, 592, (2000) 560 Pa. (holding 602 nn. 9 & 10 that involving unchallenged claim previously litigated). evidence was not 668, 2052, Washington, In Strickland v. 466 U.S. 104 S.Ct. 80 L.Ed.2d (1984), performance 674 prejudice the court set forth a and test for evaluating Pennsylvania, adapted counsel's conduct. we have Pierce, 153, Strickland test as forth in set Commonwealth v. 515 Pa. 527 (1987) require prove A.2d 973 a prongs defendant to three —-that merit, arguable the claim has that counsel had no reasonable basis for omission, prejudiced his action or that the defendant was counsel’s conduct.

59 Powell, to a Fourth Amendment claim. The of v. case Stone 465, 3087, (1976) 428 U.S. S.Ct. L.Ed.2d 1067 established that Fourth Amendment claims for pur- were available review, poses corpus of habeas since the for a Fourth remedy Amendment exclusionary violation—the rule —existed to deter Thus, Kimmelman, police argued conduct. the state a issue, claim raising Amendment a Fourth Amendment Sixth i.e., motion, trial counsel’s failure to litigate suppression reasoning barred based on the of Stone.

The Supreme rejected argu Court the prosecution’s ment since claims related to the Fourth Amendment and Sixth Indeed, Amendment were distinct. respondent’s “while de faulted Fourth Amendment claim is one element of of proof claim, his Sixth Amendment claims have separate two and reflect identities different constitutional values.” Kim melman, 375, 477 U.S. at “The S.Ct. 2574. essence of an claim ineffective-assistance is that unprofessional counsel’s upset errors so the adversarial balance between defense and prosecution trial was rendered unfair and the verdict 374-75, Id. at suspect.” rendered 106 S.Ct. 2574.

“The to counsel right is a fundamental right criminal defendants; it assures the fairness and thus the legitimacy 377, our adversary process.” Id. at 106 S.Ct. 2574. “Without counsel the fair right trial itself would be little consequence.” Id. The court then noted collateral review frequently only means an through which accused can right effectuate the extending counsel and Stone to prohibit review of ineffectiveness effectively deny claims would a de the opportunity fendant to vindicate the Sixth Amendment 378, right counsel.8 Id. at Accordingly, S.Ct. 2574. Supreme Pennsylvania jurisprudence 8. As the United States Court and force, developed, point has has more since both courts have explained, fully, more the distinction between direct review and collat- States, eral review. In Massaro United 538 U.S. 123 S.Ct. (2003), explained 155 L.Ed.2d 714 the court that the evidence intro- guilt duced at trial will be devoted to issues of or innocence. Id. at Thus, resulting 123 S.Ct. 1690. record in most cases will not Id.; necessary disclose the facts to decide the ineffectiveness claims. Grant, (2002). see also Commonwealth v. 813 A.2d 726 On Stone, conclude, it had in “that restriction of could not court the severely not interfere with federal habeas review would asserted the habeas right of the constitutional protection Id. petitioner.” find that Kimmelman Appellant’s lends support

We the nature of Sixth Amendment regarding distinct argument only the claim of error is highlights underlying claims claim. Amendment ineffectiveness component one of Sixth to the same conclusion.9 In other court has come At least one Rison, (9th Cir.1989), the Ninth 886 F.2d 1124 Molina allegation considered whether an Appeals Court of Circuit trial judge to move for the recusal of the that counsel failed § under 28 U.S.C. petition in defendant’s first alleged seeking claim to raise the recusal issue subsequent barred a After noting in a existence directly petition. second Kimmelman, that “a claim of ineffective explained the court claim any to an issue is ‘distinct’ from regard assistance with itself, issue ‘both nature and concerning underlying ” Id. at 1130. Based proof.’ upon elements of requisite Kimmelman, concluded that “the basic nature and the court from that of his recusal claim is different thrust of Molina’s claim.” Id. recu- Accordingly, Molina’s ineffective assistance successive, barred from and he was not sal claim was directly petition in his second under the recusal issue raising § 2255. Kimmelman and Molina is that is clear from

What from those claims that are claims are distinct’ ineffectiveness challenge The former claims appeal. raised on direct than the rather conviction adequacy representation hand, of ineffective assistance of counsel concern the other claims representation appellate and the court is not the forum best adequacy of 1690; Massaro, U.S. at 123 S.Ct. those facts. suited assess reasons, that the supra. the Massaro Court concluded Grant For these n them to collateral review. nature of ineffectiveness claims suited jurisdictions there are other that adhere to similar 9. We note that that litigated” recognized "previously this court has interpretation of States, (2d v. United 15 F.3d 16 Cir. Peterlcin. See Underwood since Shriner, Cir.1984); (11th 1993); Bannister v. 735 F.2d In re State, (Mo.Ct.App.1987). 726 S.W.2d 821 by Appellant’s are persuaded Accordingly, defendant. claim ineffectiveness Amendment position that a Sixth of state PCRA legal purposes distinct ground raises a 9544(a)(2). fail on Ultimately, may claim § review under reasons dis merit or for the prejudice prong the arguable raises a Amendment claim appeal, on direct but a Sixth cussed treated must be purposes issue for of the PCRA and distinct Gribble, 647, 863 A.2d v. 580 Pa. as such. Cf. (2004) 455, if the ineffec (noting 462 alternatively even severance litigated, claim the previously tiveness was not the fails for underlying the claim of ineffectiveness theory 123, States, 88 the 391 U.S. same reason Bruton United (1968) 1620, failed on direct S.Ct. 20 L.Ed.2d 476 theory reasons, a court appeal).10 For these we believe that PCRA recognize should claims as distinct issues ineffectiveness them under the standard three-prong review ineffectiveness standard, in Pierce.11 announced Consistent with this (1) has must that: claim petitioner underlying establish (2) merit; arguable being is chal counsel whose effectiveness lenged did not have a basis for his or her actions reasonable (3) act; as a failure to suffered petitioner prejudice Pierce, result of that deficient 527 performance. counsel’s A.2d at 976-77. case,

Turning to the instant we consider now court as by merits of those claims dismissed the PCRA See, Com., litigated. Blackwell v. Ethics previously e.g., State Com’n, 1094, (1991) (holding 1101 527 new to the case procedure commonly applied only rules are court). Furthermore, pending before the we will currently Furthermore, although many in cases the claim will be dismissed for appeal, on without reasons discussed direct not a distinction difference, distinct, because it is claim that deserves constitutional Furthermore, analysis regardless analysis. its own the result of that may we can envision where a defendant be entitled to circumstances attacking performance relief on an claim on ineffectiveness counsel’s review. direct course, this, following exception rarely 11. Of an which should occur Grant, supra our decision in n. would occur claim of ineffective- if a appeal ness was raised on direct and a claimant to raise the same seeks claim review. of ineffectiveness on collateral remand this matter to the court for PCRA further consider- ation if find only we the claims that considered were “previously litigated” by PCRA court are in need of further elucidation and cannot be evaluated this court. Rush, (2003).12 Commonwealth v. A.2d The first claim that the PCRA court dismissed as previously litigated a claim that trial counsel was ineffec tive for to raise a process support due claim in joined issue that the trial court should not the aggravat have charge ed assault from an unrelated shooting to the murder charges involved the instant case.13 appeal, Appellant argued On direct that the trial court erred his motion denying charge aggravated to sever the Collins, degree assault from the first murder convictions. claim, A.2d at 422. In denying Appellant’s explained that test in a motion proper considering to sever offenses that act, are not based on the same requires a consideration of: thé of each of the whether evidence offenses be admissi- would other; ble in a trial for separate the whether such evidence is capable separation by the so as jury danger to avoid confusion; and unduly whether the defendant will be preju- by diced the consolidation. Id. (citing Commonwealth v. Lark, 290, (1988) 518 Pa. 496-97 for the proposi- tion of the rule proper deciding a motion to sever under Procedure). Pennsylvania Rules of analyzed Criminal We each of these considerations and concluded that the evidence of the aggravated offenses of assault and first degree murder been in separate would have admissible trials for each other as motive, either evidence of to demonstrate the develop- natural relief, appeal 12. On from the denial of PCRA our standard of review is findings supported by whether of the PCRA court are the record Abu-Jamal, legal and are free from error. Commonwealth v. 574 Pa. (2003) Breakiron, (citing 833 A.2d 719 Commonwealth v. (2001)). scope findings 781 A.2d 94 Our of review limited to of the PCRA court and the evidence on the record of the PCRA court's See, hearing, light prevailing party. viewed in the most favorable to the Meadius, (2005). e.g., Commonwealth v. 870 A.2d 802 reference, 13. For ease of “trial will counsel” refer to both trial and counsel, appellate represented Appellant since the same counsel through appeal his direct to this court. case, intent; ment of the or evidence of jury capable separating the evidence since the criminal dis- offenses were time, involved; tinguishable in and the space, characters Appellant unduly prejudiced by was not Id. consolidation. at 423.

Appellant forwards his claim now of ineffectiveness relying on the Due Process Clause of the United States however, Appellant’s admission, Constitution. By own in assessing factors consider a due claim process when joined offenses have been is similar to the test employed fact, on direct See id. In in appeal. according Appellant, federal, test, due applying process the court must consider the same three factors that we considered on direct in appeal gave addition whether trial court an adequate limiting Appellant’s instruction. Brief at 55. As we made clear our claims, of “previously litigated” discussion although we will analyze a distinct claim of ineffectiveness that is based on the issue that underlying litigated on direct appeal, many cases, those claims fail for will the same as they reasons failed on appeal. direct claim, considering Appellant’s merits we need not anew,

reassess the Due Process claim since the factors that we appeal considered on direct are the same as the factors Appellant asks us to now consider on collateral review. The additional factor that exists under the test federal as set forth relief, by Appellant provides no as Appellant does not claim that the trial court failed to an give “adequate limiting instruc- tion,” independent and our review record reveals that the trial gave N.T., 10/20/1994, court such an instruction. for the Accordingly, reasons on appeal, discussed direct Appellant merit, cannot establish that this claim has arguable and this claim of ineffectiveness fails.

The claim that the second PCRA court “previ- dismissed as ously also to litigated” fails entitle Appellant to relief. On appeal, direct Appellant raised a hearsay challenge to the testimony of two witnesses. This court determined that the hearsay statements properly were admitted under the state of Collins, mind to the exception hearsay rule. 703 A.2d at 425. to that counsel was ineffective argues now Appellant violated the Confrontation a claim that the statements forward that the state of mind argues Specifically, Appellant Clause. rooted” nor do “firmly rule is neither hearsay to the exception guarantees contain “particularized herein the statements to Con- application sufficient evade trustworthiness” frontation Clause. to made referring were Appellant

The statements case, Anderson, who one of the victims the instant Dawn “they” she killed that were night on the made statements N.T., 10/19/1994, 99, head, her in the to shoot going the corner and would be “to work” around going that she was 10/18/1994, me, N.T., at 85. Both of kill “they” if don’t back the witnesses through were introduced these statements of the witnesses was the statements were made. One whom “they” understood to mean testify further that she allowed to Wilson, N.T., 10/18/1994, co-actor, and his Shawn Appellant returned closing arguments, prosecutor During 109-10. that the statements hearsay emphasized statements she left going Anderson was when demonstrated where Dawn before she “shortly and her words presence the witnesses’ evidence, killed,” to one conjunction pointed with the other N.T., those [Appellant] people.” “that killed thing: 10/20/1994,at 53. that “in all provides

The Clause Confrontation ... enjoy right the accused shall prosecutions, criminal him.” U.S. Const. against confronted with the witnesses be to the applicable The Confrontation Clause is amend. VI. Amendment. Pointer v. Tex the Fourteenth through States (1965). as, 13 L.Ed.2d 923 At its 85 S.Ct. 380 U.S. level, Amendment’s Confrontation Clause basic the Sixth most by preserving that the trial is fair and reliable seeks to ensure to cross-examine and confront witnesses right an accused’s Robins, him. against See Commonwealth (2002) (Opinion Announcing Judgment A.2d Court).

65 can be Clause in which the Confrontation way One against statements hearsay the admission of byis violated instances, the In those as substantive evidence. defendant and the of the declarant unavailability consider the court must Roberts, 56, 448 66- v. U.S. of the statements. Ohio reliability (1980).14 In 2531, assessing 67, 65 L.Ed.2d 597 100 S.Ct. statements, must decide whether the court reliability of rooted “firmly to a pursuant admitted the statements were state or the circumstances which hearsay exception” guarantees “particularized made contained ments were ex would be testing such that adversarial trustworthiness” little, reliability. if to the statement’s anything, to add pected Roberts, 66, 100 2531.15 448 U.S. S.Ct. “firmly is exception an explained have whether

We rooted,” jurisprudence is purposes of Sixth Amendment Robins, 812 A.2d at of federal law. question be treated as a vein, jurisdictions In that we note that several federal state of concluded that considering question have hearsay rooted to the law. exception firmly exception mind is (1st Cir.2004); Allen, 75, v. F.3d 85 Evans Horton v. 370 (8th Cir.2004) Luebbers, on Lenza v. (relying 438 371 F.3d (8th York, Cir.1981)); 311 F.3d 665 F.2d 804 v. Wyrick, Hayes (4th Cir.2002); 1086, 321, 153 F.3d Reynolds, 324-25 Moore v. (10th Cir.1998) on Lenza v. 665 F.2d 804 (relying Wyrick, 1107 (9th (8th Kincheloe, 424, Cir.1981)); Terrovona v. 852 F.2d 427 Cir.1988). that the excep The federal courts have reasoned longstanding recognized by tion has been a one that has been Horton, 85; jurisdiction in the 370 F.3d at every country. Further, at 325. statements are Hayes, F.3d such and resulting deemed reliable because of their “spontaneity Horton, on sincerity.” (quoting McCormick probable supra argument that not “unavailable” and 14. There is no the declarant was argument unavailing Dawn Anderson was such would have been since and, therefore, killed was unavailable. superseded by test forth in Roberts has the decision in 15. The set been Washington, 541 U.S. 124 S.Ct. 158 L.Ed.2d 177 Crawford v. (2004), Crawford, regard evidence. howev at least testimonial review, therefore, er, unavailable to claimants on collateral Gribble, proper forth in test is that set Roberts. Commonwealth (2004). 464 n. 7 (5th ed.1999)). Evidence, reasons, § For ratio- these exception nale behind the state of mind is similar to the other been exceptions “firmly have deemed rooted.” find the of the federal reasoning persuasive We courts no reason to conduct an of the independent see review that exception. Accordingly, agree the state of mind rooted” for of the exception “firmly purposes Confrontation cannot Appellant Clause and establish that his clam of ineffec arguable tiveness has merit.

The next claim that raises is that the trial court Appellant unduly Appellant’s ability by restricted to his defense present prohibiting showing jury him from of his co- picture actor, Wilson, that holding gun Shawn was the same or similar to the murder used to kill the weapon two victims questioned this case. The trial court relevance photo only and ruled that such evidence admissible if could establish Appellant photo Appel- when was taken. argues lant that trial counsel for to failing was ineffective witnesses, to one of the attempt have Commonwealth’s Mark Sisco, date the since photograph, “effective counsel” would have asked the if he could date the photograph.16 witness also that trial Appellant urges counsel was ineffective for failing to raise the issue of trial court error on direct appeal. Alternatively, Appellant argues that the erred Commonwealth failing According reveal information to trial counsel. trial Appellant, counsel did not know of the existence of this “critical until it him exculpatory by evidence” was revealed to present counsel.

As by Appellant’s arguments, Appellant demonstrated rais- es this claim in three different ways, and we will address them First, Appellant argues seriatim.17 that the trial court erred trial, Apparently 16. at Shawn Wilson's which occurred two months trial, Sisco, Appellant’s photo Marc after testified that the was taken December, months, around November or or about six before the instant Appellant's murders occurred. Mark Sisco also testified at trial. court, counsel, alleges Appellant also errors the trial trial process. infra, and the Commonwealth denied him due As discussed ineffec- by excluding this evidence and trial error on tive to raise this claim trial court direct claim, In order to on this must appeal. prevail Appellant establish trial error the claim has court establish merit. arguable

It is settled that the admission of evidence is well discretion of the trial court. within sound (1998). Robinson, 554 Pa. The inquiry threshold admission of is whether the evidence evidence is if it logically relevant. “Evidence is relevant tends case, to establish a material fact in the to make a fact at tends or probable, issue more less a reasonable infer supports ence or presumption regarding the existence of a material fact.” Id. (quoting Commonwealth v. Spiewak, (1992)). A.2d case,

In this the trial court questioned relevance of the photograph and concluded that the photograph only was relevant if the defense photograph could establish that the was taken at or near the time of the in question. murders This reasonable, was since a temporal relationship between the and the photograph murders would lend some credence to the inference Appellant that attempting was establish —that counsel, however, the Wilson was shooter. Trial did therefore, establish the date of the photograph and the trial court did not err in the excluding proffered evidence. Accord ingly, Appellant cannot establish that his claim trial regarding counsel’s failure to raise this issue on appeal arguable had merit, and Appellant is not entitled to relief on this claim.

Alternatively, Appellant argues that trial counsel was question ineffective for Mark Sisco as whether he knew the date this photo prejudice was taken. The Appellant alleges is that he prevented presenting was from his defense that Shawn the Wilson committed murders instead of him. however, That argument, since there noth unavailing, was that ing prevented Appellant from arguing that there was however, thus, Appellant’s we find there were no errors and due process argument is also without merit.

68 shooting at the time of the apartment

another the person 10/18/1994, Indeed, trial, N.T., at 46. at it had a gun. who apartment established Shawn Wilson was N.T., 10/18/1994, shootings. at the time of the Appellant that he cannot establish Accordingly, Appellant 44-48. and this issue fails on ruling, the trial court’s prejudiced by 108, v. 541 Pa. Travaglia, that basis alone. Commonwealth (1995) (“If 352, has not Appellant it is clear 661 A.2d standard, ineffectiveness prong met the prejudice on that basis alone and the court need may claim be dismissed the first and second have prongs not first determine whether met.”). been that the

Lastly, Appellant argues Commonwealth Brady material in violation of v. “exculpatory” withheld (1963). 83, 1194, 10 L.Ed.2d 215 Maryland, 373 U.S. S.Ct. the existence of a Brady for a defendant to establish order violation, that there has been a suppression he must establish exculpatory impeachment of either prosecution accused, to the and that that was favorable evidence prejudiced of such evidence the defendant. See omission Morris, 822 A.2d v. 573 Pa. Commonwealth (2003); Paddy, (2002). Further, no occurs Brady violation where if access to the information or the defendant parties equal had or could have uncovered such evidence with reasonable knew Morris diligence. supra. case, equal

In this trial counsel had access to information, Mark to the since trial counsel called Sisco stand N.T., 10/19/1994, at at trial for additional cross-examination. no for to contend that simply Appellant 14-22. There is basis Indeed, by Appel this evidence. the Commonwealth withheld he that counsel could prior argument, acknowledges lant’s information reasonable diligence. have uncovered this this issue is merit. Accordingly, without three of his arguments support next raises Appellant to the failing challenge claim that counsel was ineffective for First, that the Appellant asserts Common- ballistics evidence. erroneous, not ballistic was since it did evidence wealth’s to the shooting the from the Mark compare bullets Sisco Rather, taken from the of murders.18 bullets scene the instant from the expert erroneously compared the the bullets taken to the of the instant murders other bullets taken from scene Second, of the that Appellant alleges scene instant murders. ballistic Brady by suppressing the Commonwealth violated taken from the scene of that separate shooting evidence a attributed contends that Appellant. Lastly, Appellant also hearing the court erred in him an denying evidentiary PCRA to determine whether trial counsel ineffective for be to find request fingerprint investigation performed casings. the fired fingerprints cartridge latent on bullets or argument confounding. accepting first is Even Appellant’s the that the allegation that documents Appellant’s supported confusion in no confusing, way were the expert testimony Rather, the trial. the expert’s testimony affected ballistics at clearly that there three retrieved witness testified were bullets that, shooting following from the Mark examina- Sisco his bullets, tion of the he to a reasonable degree concluded that from the certainty scientific two the bullets were fired N.T., 10/18/1994, The weapon. expert same at 161-68. wit- then that he examined the from the ness testified bullets murders the ... from compared instant those “to bullets the Again, Mark Sisco.” Id. at 165-66. he concluded that that bullets were fired the same used in the weapon from shooting Mark Accordingly, Sisco. record does support Appellant’s allegation expert erroneously compared shooting. ballistics evidence from the same Appellant’s Brady similarly reliance on since unavailing, simply concluding there is no basis another bullet exists. on a testi- Appellant allegation bases witness that trial police fied Shawn that she saw take Wilson’s out of a shooting. bullet doorframe Aside from following important Appellant 18. This evidence was committed establish case, murders in Appellant since Mark Sisco identified as his and the evidence shooter ballistics at trial established that the bullets from scene of the Mark Sisco murder were fired from the same weapon as the bullets collected at the murders. scene instant statement, however, this one Appellant points to in nothing claim, support of his Brady which would demonstrate that the possesses additional ballistics evidence that it Appellant. failed reveal to it that that

Lastly, is well settled a PCRA court does not need to conduct a on all hearing issues related to 909(B); counsel’s ineffectiveness. see Pa.R.Crim.P. Common Lewis, (2000). wealth v. A 743 A.2d 907 trial court’s decision not to a hearing only hold will be reversed the trial when court abused its discretion.

Like the prior argument, Appellant has not pointed to any evidence that there indicating fingerprints were on the bullets or casings taken from the scene of the crime or that evidence, existed, such if it even would have been exculpatory. Accordingly, Appellant cannot establish that he preju by diced trial counsel’s action and this issue is without merit. Travaglia, supra.

Having guilt concluded that the phase issues do not entitle relief, Appellant to turn to the penalty phase now issues. Appellant forwards in penalty phase support two issues of his petition court, for relief that by were addressed the PCRA since it determined a third claim merited Appellant relief. The PCRA court Appellant awarded relief on his claim that trial counsel did not adequately investigate and present avail- able mitigating evidence during penalty phase. The Com- challenges monwealth this determination and consider we will this issue first. case,

In this awarding penalty phase new hearing, PCRA court focused on four main trial points: counsel did not childhood; uncover evidence related to Appellant’s abusive trial counsel did not uncover evidence related to a head 1990; trauma by Appellant sustained trial counsel failed to Appellant’s records; review school and psychological and Dr. Tepper’s testimony at the PCRA hearing. Regarding Ap- pellant’s background, at the PCRA hearing, Appellant pre- presented Tepper psychological expert during Trial counsel Dr. as a original penalty phase. family sented five members who testified to the fact that he father, was abused paternal grandfather, and mother’s boyfriends. The members family Appel- also testified as lant’s head trauma that he in 1990.20 to regard sustained With members, of Appellant’s family contrary two who testified to trial, their at the of the the testimony penalty phase PCRA court determined that they only met trial counsel “brief- with ly” immediately prior to the At that penalty phase hearing. meeting, they to say “good things” were told about Appellant. Furthermore, in of the the support remaining findings, PCRA court relied on the fact that to counsel failed secure relevant records, school and mental health which would have demon- that Appellant diagnosed strated was with serious emotional problems from early age an and that such problems were a compounded by injury head he sustained in 1990. Dr. Tepper testified that he presented had been the docu- ments he in possession, now had he would have advised trial counsel to obtain a neurological examination and neurop- sychological At testing. hearing, the PCRA Appellant pre- sented experts two other corroborating Tepper’s Dr. testimo- All ny. three experts given testified that Appellant’s cognitive defects and his emotional problems, Appellant was under the influence of disturbance, extreme mental or emotional 42 9711(e)(2), § Pa.C.S. and his capacity appreciate the crimi- nality of his conduct conform his conduct to require- the ments of substantially law was impaired, 42 Pa.C.S. 9711(e)(3). § reasons, For these the PCRA court concluded that the evidence was relevant to two additional mitigating circumstances and trial counsel was ineffective for failing to investigate evidence mitigation. of Accordingly, the court a ordered new penalty phase hearing.

The crux of the controversy regarding this issue is the performance of prong Strickland merit (arguable lack of and See, reasonable in strategy Pennsylvania). e.g., Common- Apparently, Appellant in was hit in the head with a baseball head, resulting bat and in hospitalization. Although slabbed during hearing, experts the course of disputed the PCRA injury, “seriousness" question Appellant head there was no injury. sustained the 1990 head 72 (Pa.2004). The Pa. 856 A.2d 767 Malloy, v.

wealth court erred its determina- the PCRA of whether question investigate ineffective for trial counsel was tion that myriad depends upon circumstances mitigating present actually evidence was mitigation including of factors investigation, of counsel’s reasonableness presented, See presented. that could have been mitigation evidence however, factors, in and of itself is None of these Malloy. if the investi- since even question presented, dispositive unreasonable, a fact alone such will gation by that he cannot demonstrate in relief if the claimant result See, e.g., conduct. counsel’s prejudiced that a Brown, (explaining A.2d a claim always prerequisite showing prejudice counsel).21 alleging the ineffectiveness the fact that the reason- highlights of cases trilogy A recent into circum- investigation mitigating of counsel’s ableness In by Malloy, a case case basis. we determined on stances is resolving prong this roadmap an extensive provided reiterated the United States Su- We inquiry. ineffectiveness undertaking inquiry, explain- such an focus in Court’s preme in deciding concern whether principal [counsel] that “our ing judgment’ is not whether professional ‘reasonable exercised Rather, case. we mitigation presented should have counsel deci- supporting counsel’s investigation on the focus whether back- [appellant’s] evidence of mitigating not to introduce sion 856 A.2d at 784 Malloy, reasonable.” was ground itself 522-23, Smith, 510, 123 539 S.Ct. v. U.S. (quoting Wiggins (2003) in original)). 2527, (emphasis 156 L.Ed.2d 471 first considered Malloy, we considering question the that counsel and evidence investigation performed the that ineffectiveness, repeat we that we review the of 21. As with all claims by they supported record and findings if are to see PCRA court's 317, Reyes, legal v. 870 A.2d error. Commonwealth free from (2005). findings scope is limited to the of Our of review 893 n. PCRA court’s on the record of the PCRA and the evidence court See, party. prevailing hearing, light most favorable to viewed in the Meadius, 2005 WL e.g., (2005). counsel’s trial out that overall presented. pointed counsel We meetings it of minimal consisted lacking, was preparation Id. 788. family his members. appellant and concerning appel- mitigation also noted that evidence We Id. at the time trial. background available at lant’s was Thus, there proved that appellant we concluded 786. easily certain in his which were background factors were minimal at 788. investigation. Id. discoverable even with “the explained that reaching After this conclusion we further identify types to what upon onus is not a criminal defendant development pur- may require be relevant evidence [mitigating] evidence duty suit. Counsel’s is discover efforts, questioning of through including pointed his own Id. at client.” investigation depen- then acknowledged

We counsel’s dent, in part, given the information counsel upon clear, in the course of his We made appellant investigation. however, that less complete choices made after than “strategic rea- investigation are reasonable to the extent that precisely professional judgments sonable the limitations on support investigation.” Ultimately, Id. found the failure counsel to since investigate upon strategy, based failed of the appellant’s counsel to conduct review cursory not a trial had background. “This is case where attempted to elicit information from his mitigation relevant members, abuse, client and family only have childhood family problems, potential mitigation or other evidence within reasons, these knowledge their not be mentioned.” Id. For Malloy, investigation we concluded that counsel’s unrea- sonable. Brown, we consider the again were asked to reasonable investigation mitigation

ness counsel’s and presentation at the the penalty phase. pointed evidence We first out that appellant record at the time of trial that the did not indicated suffer from illness that any mental or abuse would have Brown, investigation. counsel to conduct prompted further Specifically, 872 A.2d we noted that information did counsel further available trial counsel not alert issues, he investigate such since told the appellant police had issues; never been treated for mental health a pre- sentence investigation report prepared by a psychologist indi- that the appellant cated no reported history of neurological, suicidal, psychiatric problems; and the record indicated appellant not had been abused his by father. Id. at back to (referring the lack of record in support evidence defense). Thus, of his claim regarding self we concluded that the issue did not arguable have merit appellant and the did not prove counsel did undertake a reasonable investi- gation on the basis of the record existed at the time of trial. Hall,

Lastly, in Commonwealth v. (2005), again faced an issue related to counsel’s investigation presentation of mitigation evidence. In dis- claim, of this posing we first noted that allegations” the “bald by forwarded the appellant, did not demonstrate that he any suffered from mental deficiencies as a result alleged Furthermore, abuse. Id. at 1188. in considering counsel’s investigation, we found that trial spoke counsel appellant, family, and friends for the express purpose of evidence, obtaining mitigating yet counsel was never informed of any alleged mental condition or of any mental abuse alleg- suffered edly Indeed, as a appellant child. Id. at 1189. we noted that over the appellant’s objection, trial counsel put the appellant’s mother on the stand to testify as to the appellant’s good character and trial counsel testified that he did not put the remaining witnesses on the stand in light of the appellant’s wish that no witnesses be called to on testify his behalf. Id. at 1190. Accordingly, we concluded that the appellant “has failed to demonstrate that his counsel was ineffective when he essentially appellant’s] followed [the in not wishes additional presenting evidence.” mitigating Id.

Considering findings of fact of the PCRA court and the evidence adduced at the PCRA hearing light most favorable to Appellant, we find that Appellant is entitled to relief on his claim of ineffectiveness. are We aware that this case is a from step Malloy, here, removed since presented evidence of Appellant’s “good character” and also testimony presented expert demonstrating Appellant had abuse, intelligence, history of alcohol lack drug low and esteem, Appellant self and that lacked a male role model in his life family because his father left the Appellant when was Further young. complicating matters is the fact that Dr. Tepper asked he Appellant any inju- whether sustained head ries, N.T., 11/8/2001, Appellant told him no. at 225. Moreover, hearing, suggested at the PCRA it was that Appel- lant’s uncooperative mother was trial counsel in prepar- with for ing Appellant’s penalty phase and did not meet extensively Thus, counsel.22 there evidence that counsel did some investigation Appellant’s penalty phase hearing. find, however, differences,

We that even in light these similar to the in Malloy, counsel did not undertake a investigation. “reasonable” Counsel could remember he whether asked either or his Appellant family members N.T., 11/9/2001, Appellant any history. whether had medical admitted, however, at 77. Counsel that he did not ask Appel- family lant or his members Appellant whether ever sustained N.T., injury. 11/16/2001, Indeed, a head at 17. one of the at the hearing, witnesses PCRA who also at the testified penalty phase testified that hearing, she was aware of Appel- lant’s head but injury, only interviewed counsel imme- before diately period trial for a brief of time and only was told N.T., to say “good things” 11/16/2001, about Appellant. at 55- Additionally, counsel admitted that he did not obtain Appel- records23, 11/9/2001, lant’s school N.T. at ob- never history” tained a “social of Appellant from either Appellant exactly why 22. While it testify Appellant’s is unclear Mother did not penalty phase, suggested it was that she did not have much faith in the trial, legal system Appellant’s at the time of since her other son had recently degree been convicted of first murder and sentenced to death. clear, however, It family that several other members testified at the trial; penalty phase Appellant’s and the evidence adduced at the hearing suggested any remaining PCRA family interview of the members was only say “good brief and trial counsel told them things’’ Appellant. about expert 23. At least one testified that the school records would have been N.T., 11/8/2001, helpful assessing Appellant’s ability. overall mental at 24-27. 11/16/2001, under- members, N.T., at 40. Counsel family regarding Ap- information to include history” stood a “social i.e., learning had Appellant whether pellant’s background, in Id. Based adolescence. significant problems and difficulties that this it hearing, appears of the PCRA testimony the upon counsel; and, like the accessible to readily testimony was of counsel’s not uncovered because Malloy, in situation Furthermore, thorough investigation. a to undertake failure Tepper, to Dr. misleading statement Appellant’s from aside infor- to that relevant suggest no evidence simply there was process by Appel- the interview during mation was withheld In- 856 A.2d at 788. Malloy, members. family lant or his found, the it unclear whether deed, court as the PCRA given opportunity the family members were even extended since coun- Appellant, information about counsel relevant give “good only say and told them briefly met them sel with things” Appellant.24 about Brown, because simply case is distinct from

The instant at the here, that was available there was relevant evidence minimal been uncovered with trial that could have time of that medical records question There is no investigation. a demonstrated time of trial would have existed at the evidence, had such injury. If counsel uncovered serious head expert’s to a difference in the have led the evidence would Moreover, today United States is consonant the our decision Beard, Rompilla in 545 U.S. recent decision Supreme Court’s wherein, (2005), the court held: 162 L.Ed.2d 360 125 S.Ct. family capital members and the defendant when a defendant's even available, mitigating his suggested evidence is have that no himself to obtain and review lawyer to make reasonable efforts is bound probably rely on as prosecution will that counsel knows the material sentencing phase of the trial. aggravation at the evidence of ultimately Rompilla, the court concluded Rompilla, at 2458. In presentence investigative a to review counsel was ineffective mitigation no yielded range of leads that have "a report that would Although the conclusion in opened up.” Id. at 2459. had other source we are particular result in this case since Rompilla, compel not does presentence report dealing failure to review with counsel’s Commonwealth, possession the we in the evidence that was other underlying holding with our reasoning such is consistent find that that, circum- today, Rompilla made clear under certain since decision stances, rely representations enough on simply not for counsel it is defendant, family, by and his friends. his testimony expert’s and the to counsel recommendation led to fact, have such evidence would phase. penalty circumstances, nei- mitigating additional of two presentation Further- phase. during penalty offered ther of which was Hall, case, has Appellant in more, the situation unlike support allegations” “bald more than presented evidence and, expert as demonstrated contentions that he has demonstrated hearing, adduced at the PCRA injury the head a result of deficiencies as suffered mental the PCRA reasons, agree with For these childhood abuse. a reason- not conduct that counsel did determination court’s evidence mitigating the relevant to uncover investigation able that his established thus, Appellant conclude trial a reasonable and counsel lacked arguable merit claim has strategy.25 fact that dissenting opinion much of the concurring makes

25. The and Fears, we have failed to discuss Furthermore, (2003), it believes analyzing issue. in the instant dispositive Appellant's issue. in our decision Fears impact of opinion respect, responsive overstates With all due First, recognized that each time it must be the instant case. Fears on ineffective counsel was appellant claim that trial an raises a colorable during penalty mitigation evidence failing present sufficienl for unique present- analyzed considering facts phase, the case must be no life histories and capital will have the same ed. No two defendants Thus, what is proceed will in the identical manner. two counsel necessarily be considered will not reasonable in one case considered Fears, Second, overruling but rather in another. we are not reasonable Fears, court distinguishable In the trial from the case at bar. find it establishing appel- testimony that the appellant's expert discounted the that trial impairments and concluded from severe mental lant suffered present evidence was reason- performance in 1o such counsel’s Here, found that trial the PCRA court able. 836 A.2d at n. court basis. The PCRA performance lacked reasonable counsel’s members, family testimony by crediting the reached this conclusion preparing spend time them that trial counsel did not who testified merely history, told regarding Appellant’s life but questioning them performance indi- say "good things” Appellant. Such about them to part, rather than a failure preparation lack of on counsel's cates a In addition family forth with relevant information. members to come history” information failure of counsel to uncover "social to the injury, the additional regarding Appellant's head we have information mental admittedly procure school and did not relevant fact that counsel health records. Having concluded that counsel’s not rea- investigation was sonable, we still must consider whether such failure prejudiced Brown, case, Appellant. 872 A.2d at 1150. Appellant’s testified that such experts evidence was relevant establish- ing mitigating two additional factors that were not presented Thus, evidence, at trial. the jury had heard all of the relevant there is a probability juror reasonable at least one would have found an mitigating additional circumstance and struck a in weighing different balance aggravating mitigating circumstances. Malloy, See 856 A.2d at 789. herein,

For the reasons stated we affirm the PCRA court’s order denying Appellant guilt relief on his issues and phase on granting penalty relief issue phase supra.26 discussed this matter Accordingly, penalty is remanded a new phase hearing. NIGRO,

Justice join Justice NEWMAN and Justice BAER the opinion. concurring

Justice SAYLOR files a opinion. concurring Justice CASTILLE files a and dissenting opinion joins. which Justice EAKIN SAYLOR, Justice Concurring. the previous

On I litigation point, agree with the majority that our present criminal law an jurisprudence adequate- lacks Finally, acknowledge presents that this case somewhat of a “close call,” ultimately finding but err on Appellant, the side of in favor of based, part, on the deference that is due to a PCRA court’s determi- nation, supra p. see standard p. set forth 62 n. 888 A.2d at n. emphasize constantly evolving, 12. We that area of the law this building each rely solely case on the case that came before. To on Fears, Brown, considering Malloy, without recent our more decisions in Hall, ignore and would duty pursue be unwise. We cannot counsel’s mitigating reasonably all evidence of which he should be aware. See Zook, 11, 1218, Commonwealth v. 887 A.2d 2005 WL 3160270 (Pa.2005) (holding performance that trial counsel’s lacked a reasonable explanation when he pursue

basis failed to set forth an trial, evidence that existed at the time of which indicated that the appellant injury resulting damage). suffered a brain and brain 26. Appellant regarding We need not reach the two issues raises the penalty phase, granting penalty hearing. since are him a new ly consistently and construct to determine developed applied and to a claim has been degree previously whether what I litigated.1 agree layered also claims of ineffective are regarded underlying assistance as distinct from ineffectiveness, claims of trial error or in the sense that direct recourse to the claim no underlying may longer be available Nevertheless, light of the waiver doctrine. the Court also recognizes layered claims are not wholly ineffectiveness are, fact, distinct from the claims underlying but derivative See, Gribble, from those claims. e.g., Commonwealth v. (2004). 647, 675, Pa. 863 A.2d proof 471-72 Since underlying claim is an essential element of the derivative claim, I previous litigation ineffectiveness believe that doctrine should apply underlying where the claim has been meritless, fully fairly litigated and and deemed and a petition- nothing er seeks more on post-conviction review than differ- ent more precisely and favorable resolution of the same claim rejected that was previously on direct albeit an appeal, via ineffectiveness overlay.

I therefore do not believe that the Court needs to or should discard the precept, as discussed by majority, post- conviction petitioner may not obtain relief by mere fact of layering. From my perspective, the primary difficulty that has arisen in the previous litigation context is that occasionally courts have not confined the doctrine’s to situa- application tions in which an essential element of the ineffectiveness claim Rather, has been fully fairly addressed. courts have sometimes it extended to situations in petitioners which have sought to demonstrate that the underlying claim not fully fairly litigated counsel, on account of some dereliction by regard, In this I woodenly am not of the view that the Court is bound statutory previous litigation. Significantly, PCRA's references to that, given Legislature’s the Court has determined desire to sub- possible range post-conviction sume the broadest remedies within framework, respects yield PCRA's the statute inmust some to the proscription against Constitution's the curtailment of such remedies. Lantzy, See Commonwealth v. 222-25 & n. (1999). perspective, 569-70 & n. 4 Consistent with I do not believe previous litigation that the requires codification of the doctrine strip prudential Court to it of its character.

80 error, the asserted preserve failure to raise or

such as a facts, controlling a relevant pursue essential present reviewing the initial courts. before legal theory has view, underlying an claim in situations which my addressed, to determine required what previously been been previ- ineffectiveness claim has layered or not a whether the assessment of whether is an evaluative ously litigated faith contention that counsel’s good forth has set petitioner adjudication fair of a full and stewardship prevented deficient I that the Court should issues. also believe underlying the to the of exception application manifest error recognize a cases, that if a doctrine, petitioner such capital particularly on the of part clear and manifest error to demonstrate is able review, relief should not be foreclosed in the initial the court exception would be consistent of that review. Such by virtue doc- previous litigation of the character prudential with of the interests of trine, and in furtherance see note supra moreover, unduly it would I do not believe justice; courts, limita- one-year as the reviewing particularly burden effectively has petitions filing post-conviction on the tion challenge. single to a state collateral petitioners limited most Williams, 553, 565, Pa. 782 A.2d v. See Commonwealth (2001).2 517, 524 I the majority opinion, the balance of regard

With in the result. concur respectfully CASTILLE, Dissenting. Concurring Justice in the denial of join Majority Opinion I Although relief, I dissent from its respectfully guilt phase collateral relief. grant penalty phase of the affirmance Phase I. Guilt claims, Majority collateral guilt phase to the respect With 567-79,1 51-71, join Majority Opinion 888 A.2d op. require Although my the Court to abandon position would not layering to overcome understanding that mere alone is not sufficient employ the rubric that litigation, I would not continue to previous by presenting new theories of previous litigation can never be overcome 554, 565, relief, see, Beasley, e.g., (1996), is overbroad. I believe that such formulation because concerning the following points minor exception Act Relief Post Conviction litigation provision previous First, join in the I do not (“PCRA”), seq. § 9541 et 42 Pa.C.S. where retroactivity principles, to oblique reference Majority’s Com’n, Com., 527 Pa. Ethics to Blackwell v. State it cites (1991) rules for the “new proposition 1101 currently the case only to commonly applied are procedure 61-63, 888 A.2d at at Majority op. the court.” before pending previous of the PCRA’s proper scope The of the question procedural a discretionary bar not one Implicating litigation Rather, lawful, substan- it is a by fashioned this Court. “rule” but to has no choice Court statutory requirement tive it. understand existing statute we apply Second, litiga Majority’s previous in supplementation I it is worth join, I otherwise believe analysis, tion which non- distinction between that there is an obvious emphasizing (e.g., of counsel claims of ineffective assistance record-based evidence, material or call wit investigate, failure to discover nesses) subject previous litigation be to a rarely which will in bar, attorney performance deficient allege and claims which in the litigated a claim was particular the manner which the latter to upon appeal. respect trial court or direct With circumstance, that this Court it has too often been case of coun a mere assertion presented boilerplate has been with involving a record- theory ineffectiveness attached to new sel at trial challenged and denied ruling already based which was always should undeveloped claims or on direct review. Such fail, the failure is it be a matter of semantics may whether (demonstrated) to or lack of previous litigation attributed addition, there are Amendment merit. arguable Sixth manner of on direct disposition instances other where harmless) (such any alleged as a error was finding review alternative upon any relief effectively operates preclude of ineffective assistance theory guise advanced under Gribble, See, e.g., counsel. 61-65, A.2d (2004); also at Majority op.

A.2d see sever respecting ineffectiveness claim (rejecting at 574-75 appeal”). discussed on direct process “for the reasons ance/due There obviously is an element of issue preclusion work this, such an instance. said I Having ultimately have no quarrel general Majority, distinction drawn recognizes which the constitutional underpinnings Majority’s analysis ineffectiveness claims. The should encour age the bench and bar to heed to substantive pay require (ie., claim) ments elements of the necessary prove viable Amendment claim of counsel Sixth ineffectiveness. Penalty

II. Phase Majority The affirms the determination of the PCRA Hon (who orable E. Temin Carolyn judge) was not the trial appellant’s trial counsel in 1994 was ineffective present uncover and a different and case in supplemental mitigation focusing on appellant’s supposedly abusive child hood, an brain alleged injury, cognitive dysfunctions. and his granting penalty hearing, new the PCRA court discussed none the many of cases from this Court considered which have issues, instead, similar but relied exclusively upon almost select, decision, Jermyn v. Third non-binding panel Circuit Horn, (3d Cir.2001). 266 F.3d 257 I respectfully dissent from relief, the Majority’s grant affirmance of this of as I do believe rebutted the appellant presumption that his counsel below, legal was effective and the determination however much it may square with the Third Circuit’s non-deferential to this approach performance Court’s of its federal constitu tional in duty, flies the face of from this binding authority Moreover, Court. I do not believe has appellant proven prejudice. the question Strickland performance aspect

On Washington, U.S. 104 S.Ct. 80 L.Ed.2d 674 (1984), assumes, Majority did, as the PCRA court that a constitutionally investigation reasonable counsel under by standards extant in 1994 would have uncovered the additional mitigation belatedly evidence counsel faulted for I uncover. do not the record concerning believe counsel’s below, performance compiled through viewed the deferential Strickland, lens contemporaneous required and and viewed through precedent, supports assumption. this Court’s Drost, counsel,

Trial John T. at the Esquire, testified PCRA that, trial, noted hearing. Counsel the time of appellant’s he had had considerable criminal trial both as a experience, prosecutor attorney, and as a defense experience which includ- ed over 100 murder cases defended and six trials. prior capital Counsel further noted that he appointed represent in other appellant contemporaneously two murder cases with here; cases, the double murder at issue in one of those acquittal counsel secured an and in the other the prosecution dropped. Counsel then testified as to his penalty phase strategy investigation appellant’s background. into Coun- strategy develop sel’s overall was to and present any mitiga- end, tion evidence that he could muster. To that retained Dr. Allan M. Tepper, who is both a licensed psycholo- gist attorney, recognized and an and a expert witness psychology. Tepper, forensic Dr. also who testified at the PCRA task hearing, understood his to be to evaluate appellant if any mitigating determine circumstances existed.

In addition to Dr. retaining Tepper, counsel interviewed mother, fiancée, appellant, appellant’s appellant’s other members of appellant’s family. These family meetings were fruitful, they revealed information positive which was about i.e., that he appellant, loving had a relationship family performed members and had numerous good family works for members and others in his community. Counsel presented positive evidence at the penalty phase along with evidence and, fact, from Dr. Tepper point jury found mitigator. “catchall” trial, passage

Given time since counsel could not recall specifically what information he had to Dr. provided Tepper, but he noted that his general practice would have been to provide discovery materials, all preliminary hear- notes, record, ing appellant’s prior and some background and his concerning appellant case. Counsel numer- also met ous times not in appellant, only connection with this case but in appellant’s well, connection with other pending cases as an to observe and form his opportunity thus counsel had functioning. mental Coun- concerning appellant’s opinion

own him able to with relevant appellant provide noted that sel him in the defense. preparing and consult with information much say in could he so “only hindsight” noted that Counsel extremely might flat” that “affect was which appellant’s as noted, injury. of some brain Counsel been an indication have however, that a flat affect “absolutely” he was aware that, from other causes and over the course could result connecting the idea of years represented appellant, he two me.” “did not occur to damage simply affect to brain organic interviewed, Dr. exam- Tepper, noted that who Counsel also organic detected no evidence of appellant, and tested ined testimony Dr. Tepper’s or mental disease. damage brain addition, fact; Tepper Dr. noted that he had confirmed test- nothing neuropsychological that would warrant detected concedes, the doctor’s Majority As the ing appellant. or no doubt result- injury impairment failure to brain diagnose appellant specifically from the fact that had part ed at least Indeed, injuries. Tep- it Dr. any head suffering denied been subjects they to ask his whether had ever practice per’s over, accident, hit in the stabbed, shot, been in a car or run injury no medical/physical disclosed such Appellant head. Further, informed Dr. appellant Tepper never the doctor. any abuse. Whatever physical that he had been the victim had, it obviously was damage impairment appellant brain a trained to be to counsel or to enough apparent mild so as not spent interviewing who hours professional mental health for counsel cannot be faulted Surely, evaluating appellant. re- expert mental health he experienced assuming any mitigation purposes would uncover specifically tained health evidence. mitigation such mental the notion of a pursue that he did not Counsel testified injury penalty phase preparations, brain because his previous appellant during lengthy interaction with as his well him no gave reason believe representation, course of injury. Although head significant had suffered appellant if appellant recall he had asked specifically counsel could medical and appellant’s family concerning questions and his any injuries head he had history and whether suffered “social” ask (counsel specifically he not said that in all likelihood did counsel note history), or social did injuries head prior about or forthcoming by appellant had been if such information that it upon he have acted and followed family his members would he certainly In this counsel that was regard, it noted up. that a prior significant at the of trial time evidence aware in developing a injury pursued an area that could be head was in mitigation. case defense short, the that the fact that

In record below demonstrates does mitigation did not mental health evidence present counsel here, mean that counsel failed such pursue not evidence— did, fact clearly just it did not out. pan Similarly, counsel produce negative counsel not additional information that did childhood, mental concerning background, and appellant’s develop present counsel state does mean that failed to and presented To the contrary, a case mitigation. consisting testimony of cogent mitigation appellant, case family, Tepper, members of and Dr. which served appellant’s in a present sympathetic and him personalize appellant sentencing jury appel- Dr. thus told the that light. Tepper nine family father left the appellant lant’s had home when was ten lacked a years appellant subsequently or old and male model or “father circumstance figure,” stable role led him in school. Con- develop which behavioral problems Dr. also tinuing personalized history, Tepper with this social than jury appellant slightly informed had lower grade, that he the tenth average intelligence, completed had focus, he some and opined appellant and that with more effort The could succeed in academics or doctor also his vocation. appellant drug noted that had owned to an “extensive and up history very early use problem” began alcohol marijuana grade, alcohol while in and then and seventh cocaine, frequent cough syrup, escalated into the abuse of and expert testimony, to this psychological Valium. addition mem- presented family trial counsel from several testimony aunts, bers, fiancée, cous- including three appellant’s two ins. These appellant witnesses stated that an intelligent, sweet, man, loving, caring, good acted as an who older cousins, brother to younger helpful to his aunts and grandmother, and had three children of his Significant- own. none of ly, those witnesses the injury described or abuse which forms the basis for Majority’s of a grant new penalty phase hearing.

Under this Court’s authority, I do not see how counsel can be labeled a upon Indeed, ineffective record such as I this. see little material difference in the claim in forwarded case and the claim rejected forwarded and in Commonwealth Fears, (2003), 836 A.2d 52 a case front which is and center in the I Commonwealth’s brief. understand why Fears, court PCRA did not discuss since the case was after decided the court issued its opinion.1 But I do understand why ignored Fears is Majority, except to response this dissent. Majority op. at 77-78 n. Fears, here,

at 583-84 n. 25. In as trial counsel produced the testimony of a mental health expert at the penalty phase in support of the catchall mitigator court, and the trial sitting factfinder, found that but mitigator, nevertheless returned a sentence of death. Fears later alleged trial counsel was ineffective for to conduct an adequate mitigation inves- tigation, one which would have uncovered additional evidence relating to his mental health and what might be called “social background,” evidence which was similar in respects material to the Thus, undiscovered evidence at issue here. according Fears, an adequate investigation would have revealed he was born to prematurely twelve-year old girl and suffered from cardiac birth, arrest within an hour of causing severe brain; lack of oxygen he placed in foster care a few later; months he suffered from a serious mental illness (including diagnosis of “severe psychopathology including disorder”). schizoid personality disorder and schizoaffective Fears, 836 A.2d at argued, 72-73. Fears as appellant does perplexing why It is more inexplicably ignored the PCRA court all authority from commonly-recurring this Court on this issue and instead only panel followed a Third Circuit decision. here, that this evidence would have supported two additional ie., circumstances, and distinct mitigating extreme mental and disturbance, 9711(e)(2), emotional § 42 Pa.C.S. and substantial of his impairment capacity appreciate criminality of his 9711(e)(3). conduct or to conform his conduct to § the law. Id. In Opinion by an Mr. Chief Justice the Fears Cappy, Court found that appellant’s possessed merit, claim arguable but we denied relief finding after that counsel had a reasonable basis for not discovering and producing additional evidence concerning the two mental mitigators. health The Chief Justice, writing for the Majority, emphasized that neither client, counsel’s interactions with his nor the client’s disclo- sures, put had counsel on reasonable notice that he should pursue this course: reiterate

We reasonableness this context depends, in critical part, upon information supplied by the defen- Basemore, dant. Commonwealth 258, 560 Pa.

[717,] [(2000)].... counsel [T]rial testified that Appel- lant no displayed overt psychotic behavior between the time trial____ of the arrest and also Appellant did not inform trial any counsel of mental or impairment of any birthing injury that would affect his mental stability at the time of Nevertheless, the offense. he presented psychiatric testi- mony mitigation, in in albeit support of the catchall mitigat- ing circumstance.... We find performance in [counsel’s] regard this reasonable. on Based the information trial possessed time, counsel at the he was not ineffective for failing to find psychiatric another expert who support would additional mitigating Thus, factors. counsel trial not be will deemed ineffective for “failing to present mitigation evi- dence that he did not know existed.” Commonwealth v. Johnson, 283, (2002). Roderick 572 Pa. 815 A.2d 563 (footnotes Id. at omitted). 73-74 and record citations If today’s Majority Fears, means to overrule it should do so directly and with an explanation, rather than by inference.2 decision; 2. Fears is not contrary, an aberrational to the it is consistent long See, Pennsylvania with a authority. line of e.g., Commonwealth v. Bond, (2002) (noting A.2d 45-46 that “[c]ounsel I no case other extant in 1994 authority which know in all that defense counsel cases must ask the required capital injuries family prior and his about head or other defendant instead, Majority that imposes mental health factors — Indeed, if obligation there were upon retroactively. counsel in could have authority such rendered that we did in the Fears line of cases. Particularly decisions where, here, client, extensive counsel’s interactions retained, and of the mental health counsel opinion expert that there fodder provided any mitiga- no indication for area, I investigation tion in do not think counsel’s should second-guessed. upon following be Based the facts adduced in this investigation, counsel’s reasonable course counsel a and in one presented positive cogent mitigation, case case background, and considered his personalized appellant which convincing mitigator and existed. jury succeeded can- light long-standing precedent, of this Court’s not be labeled ineffective. dismisses Fears

The and Majority “distinguishes” by sug- (1) here, judge unlike the gesting judge PCRA Fears, unreasonable, performance found counsel’s is to the court’s obliged this Court defer PCRA basis; (2) “this area of assessment of reasonable the law rather constantly evolving,” strange legal articulation of most principle apparently “only means recent cases which cases) (or Majority op. matter.” 77-78 n. supporting uniquely cannot be found ineffective introduce information knowledge family defendant and his which is not within the of the counsel;” family, provided appellant in and his who were ”[b]ecause position which to know about additional childhood trauma to counsel, appellant allegedly exposed, failed to reveal that trauma to appellant has how should otherwise have not shown counsel it, regard.”); counsel was not ineffective in this Roderick learned of 500, Miller, Johnson, supra; v. Pa. A.2d 592 Commonwealth 560 746 Rollins, 532, 435, (2000); v. 738 A.2d 448 Commonwealth (1999) (“We we will not find that counsel was ineffec- have stated that mitigating alleged produce relative tive in evidence to an any infirmity no had mental where there is indication might problem.”); know that the defendant have mental reason to Howard, 266, 233, (1998). v. 238 553 Commonwealth

89 persua- remotely Neither point A.2d at 583-84 n. 25. inquiry. in sive a Strickland findings of credibility to the must defer

Although Court are at material facts court in cases where contested the PCRA counsel’s issue, of the reasonableness of the determination performance prong conduct under the Sixth Amendment —the deference warranting any particular not one Strickland —is here, where, hearing judge, particularly to the PCRA trial. judge judge presided is not the same who Cf. 362, 396-99, 120 S.Ct. v. 529 U.S. Taylor, Williams (2000). Indeed, if the correct Majority L.Ed.2d 389 were assess judge’s defer to the PCRA reviewing courts should of counsel’s the U.S. performance, ment of the reasonableness its remarkable deci Court could not have rendered Supreme Beard, in v. 125 S.Ct. Rompilla sion U.S. (2005). on Rom Nigro’s opinion

L.Ed.2d 360 As Mr. Justice noted, in that case held a appeal PCRA the PCRA court pilla’s hearing question respecting on the of ineffectiveness undiscov evidence, claim that the mitigation ered additional determined merit, actions were arguable had but then found that counsel’s affirmed. reasonably based. This Court (1998). Supreme The Rompilla, 554 Pa. 721 A.2d 786 U.S. relief, 5-4 habeas a narrow granted corpus Court federal of the court margin, by simply rejecting conclusions PCRA while respecting performance, reasonableness counsel’s reviewing in our finding application this Court’s of Strickland mean Majority unreasonable. Does the capacity “objectively” suggest judge only that deference is due to the PCRA when in constitutional concerning she rules favor defendant reasonableness? to the the PCRA respect Majority’s point,

With second simply pick court seemed to assert that it could certainly Circuit precedent here, non-binding choose whichever Third — course, the ma- precedent supported its conclusion. Of law — But, an requires tures and inquiry evolves. Strickland performance assessment of trial counsel’s under the standards penalty that existed counsel tried the matter. The when 1994; in phase penalty phase this case was October later, Fears in 1995. The have had February was law would in to de-evolve order to fault counsel for to do what do, being counsel in Fears also failed to deemed effec- while fear, I tive. As Fears is no more. principled precedent, simply Fears, In of the line of cases includes lieu which cases, three recent v. Mal Majority discusses Commonwealth (2004), v. loy, 579 Pa. 856 A.2d 767 Commonwealth Brown, (2005), A.2d 1139 and Hall, (2005), 872 A.2d 1177 two which (Brown Hall) meritless, and involved claims deemed and the (Malloy) finding third of which involved a of ineffectiveness and a relief. The grant penalty phase Majority concedes step Malloy,” that this case is “a removed from but neverthe less like to relief. appellant, Malloy, concludes entitled 75-76, Majority at 888 A.2d at 582. But this case is more op. like a from a quantum leap Malloy. Malloy removed involved near total failure to effort any prepare undertake indeed, in present mitigation; a case counsel did not do so Malloy family much as sit down and discuss having -with members on his behalf. Counsel conducted little testify inves tigation presented penalty and no testimonial evidence counsel circum phase. Although argued mitigating two record, from the trial and it jury stances found neither returned a sentence of death after the existence of a finding single aggravating penalty phase circumstance. Counsel’s that, in so on performance Malloy remarkably inadequate appeal, Commonwealth conceded counsel was ineffec tive, arguing only prejudice. an absence of contrast,

In in this an investiga- case did undertake one, tion and it a reasonable it included retaining professional, mental health meeting appellant with an actual family presenting mitigation, case which jury finding resulted the existence of a mitigating Brown, Hall, circumstance. This case is more like Fears and such cases than it is like the outer Malloy, occupying case performance. limits deficient

I also respectfully disagree Majority’s offhanded conclusion that appellant proved prejudice. Strickland so finding, the cites Majority only Malloy, but expla- without nation; thereby appreciate Court fails rather Malloy’s sophisticated application more of the In prejudice standard. this Malloy, analyzed prejudice, Court in pertinent part, as follows:

Although recognize that the in unpursued evidence case not strongest, we further note that trial counsel’s presentation penalty phase at the no included affirmative all, only argument evidence but a brief and a stipulation. performance, Such a which by any was motivated strate- decision, left the a gic jury dry assessment of appel- short, lant’s just individual circumstances. it is not failure to present appellant’s evidence of background which us, concerns but the fact that the failure in occurred a case where there little effort to personalize appellant for the Indeed, jury. personalizing appellant’s background may have made one or more of jurors more likely accept to the other mitigating circumstances which were pursued. areWe satisfied that it is probable juror that at least one would have at least one accepted mitigating circumstance and found that it outweighed the single Commonwealth’s Thus, aggravating circumstance. jury had the heard testi- mony and been to able consider all of the mitigation evi- dence and argument together, there is a reasonable proba- bility juror that at least one would a have struck different balance and voted not to impose the death penalty.

856 A.2d at 789 (emphasis original). here,

The circumstances respecting prejudice, are not the same as Malloy. Counsel the case sub judiee went great lengths personalize his client for the jury, and indeed a finding secured that a mitigating circumstance existed. Moreover, I am unconvinced that there is a reasonable proba- bility that the introduction of this belatedly somehow discover- ed evidence of appellant’s childhood abuse and his head injury would have swayed jury into returning life sentence for both murders. This is a case appellant where shot one victim woman, five times over an argument about a shot at another person because appellant suspected she stole his money, jury The killed other victims. later shot and two days

five returned a of murder and counts guilty two appellant found aggravators of the on each count. One of death sentence murder multiple found, penalty, death as to each noted in Commonwealth recently author As this aggravator. (Castille, J., (Pa.2005) Zook, “I think that it is unreal- *11: concurring), WL difficult battle uphill in the extreme ever discount istic where, here, one faces lawyer defense any capital that his client the fact circumstances involves aggravating is a murders. This degree first multiple to commit elected in kind from other that seems different of distinction mark if I could fault counsel Even aggravators.” statutory family, and appellant’s appellant, to discover what appellant until failed to expert mental health discover/disclose row, I that evidence am unconvinced found himself on death in a have resulted damage and brain would abuse childhood in a case such verdict penalty and different weighing different Therefore, I this. dissent. dissenting opinion. joins concurring EAKIN Justice A.2d592 Pennsylvania, Appellant COMMONWEALTH KILLINGER, Appellee. James R. Pennsylvania. Supreme Court of 9, 2004. Submitted Nov. Dec. Decided

Case Details

Case Name: Commonwealth v. Collins

Court Name: Supreme Court of Pennsylvania

Date Published: Dec 27, 2005

Citation: 888 A.2d 564

Docket Number: 372 & 373 CAP

Court Abbreviation: Pa.