COMMONWEALTH of Pennsylvania, Appellee v. Steven DUFFEY, Appellant.
889 A.2d 56
Supreme Court of Pennsylvania.
Submitted May 28, 2002. Decided Dec. 28, 2005.
585 Pa. 493
Under these circumstances, we agree with the Board that disbarment is warranted. In choosing an appropriate sanction, we have recognized that “there is no doubt that dishonesty on the part of an attorney establishes his unfitness to continue practicing law.” Grigsby, 425 A.2d at 733. Truth is the cornerstone of the judicial system; a license to practice law requires allegiance and fidelity to truth. Id. Respondent‘s behavior in defrauding his own family members and attempting to avoid payment after the civil judgment was entered demonstrates the antithesis of these requirements and warrants imposition of the most severe sanction.
Accordingly, Respondent is hereby disbarred from the practice of law in this Commonwealth. He is directed to comply with the provisions of
Justices CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER join the opinion.
George S. Bobnak, Billy Horatio Nolas, Philadelphia, for Steven Lewis Duffey, appellant.
Amy A. Schwed, Kathleen M. Granahan; Amy Zapp, Harrisburg, Andrew John Jarbola, Scranton, for the Com. of PA.
Before: CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.
Chief Justice CAPPY.
The instant case arose as an appeal from the denial of post-conviction relief under the Post Conviction Relief Act,
In Duffey II, this court was presented with a layered claim of ineffectiveness related to the testimony of the Commonwealth‘s rebuttal witness, Dr. John Hume.2 After reviewing the relevant law, we believed that Dr. Hume‘s testimony unconstitutionally commented on Appellant‘s right to remain silent in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Duffey II, 855 A.2d at 774-75. “Relying on that expert testimony, the prosecutor then impermissibly referred to Appellant‘s silence and suggested damaging inferences from that silence.” Id. at 775. Thus, the court concluded that Appellant‘s claim that trial counsel was ineffective for failing to object to Dr. Hume‘s comments and the prosecutor‘s closing arguments had arguable merit. Id. Likewise, we held that Appellant was prejudiced by the impermissible reference to his silence and the prosecutor‘s comment on his silence during his closing arguments. Id. We did not, however, deem defense counsel ineffective at that juncture, since we were unable to assess the reasonableness of trial counsel‘s actions. Accordingly, we remanded this matter for an evidentiary hearing. We also ordered that the hearing should encompass testimony related to appellate counsels’
The PCRA court held an evidentiary hearing on November 18, 2004 and issued findings from the bench. These findings subsequently were memorialized in an opinion dated December 15, 2004. The PCRA court found that trial counsel‘s strategy in failing to object to the unconstitutional comments was reasonable. The court, however, then concluded that appellate counsel was ineffective. The PCRA court‘s findings are now before this court, and it is now our responsibility to review those findings.
As a general proposition, an appellate court reviews the PCRA court‘s findings to see if they are supported by the record and free from legal error. Commonwealth v. Reyes, 582 Pa. 317, 870 A.2d 888, 893 n. 2 (2005). The court‘s scope of review is limited to the findings of the PCRA court and the evidence on the record of the PCRA court‘s hearing, viewed in the light most favorable to the prevailing party. See, e.g., Commonwealth v. Meadius, 582 Pa. 174, 870 A.2d 802, 2005 WL 711621 (2005).
Following Duffey II, the initial question with regard to this claim is related to the strategy of trial counsel. Counsel is presumed to have been effective. Commonwealth v. Miller, 572 Pa. 623, 819 A.2d 504, 517 (2002). “Generally, where matters of strategy and tactics are concerned, counsel‘s assistance is deemed constitutionally effective if he chose a particular course that had some reasonable basis designed to effectuate his client‘s interests.” Id. A claim of ineffectiveness generally cannot succeed through comparing, in hindsight, the trial strategy employed with alternatives not pursued. Id.
During the evidentiary hearing before the PCRA court, trial counsel gave a multitude of reasons for failing to object to Dr. Hume‘s testimony. Trial counsel‘s first line of reasoning in support of his failure to object to Dr. Hume‘s testimony was that he did not want to undermine either his credibility or line of communication with the jury by raising objections which would not be fruitful. N.T., 11/18/2004, at
Trial counsel‘s second line of reasoning in support of his failure to object to Dr. Hume‘s testimony was that he believed he could use Dr. Hume‘s testimony regarding Appellant‘s
Lastly, PCRA counsel questioned trial counsel about his failure to object to the prosecutor‘s closing argument. PCRA counsel also pointed out that trial counsel raised numerous objections during closing arguments, but none to the reference to Dr. Hume‘s testimony. N.T., 11/18/2004, at 98-99. Counsel responded, “When I say I was concerned about my credibility with Hume, I didn‘t want to give the impression of hiding anything. There was nothing to hide. In the closing argument that you just referenced, my recollection is tenor or emotional aspects of it or such that I probably felt it wise to object to just get a break or to tone it down a little bit.” Id. at 100. Once again, the PCRA court credited trial counsel‘s reasoning that trial counsel “wished to draw the jury‘s atten-
Based on our review of the record of the PCRA court‘s hearing, we conclude that the factual findings of the PCRA court are supported by the record and agree with the PCRA court‘s legal determination that counsel‘s strategy had some reasonable basis designed to effectuate his client‘s interest. Miller, supra. We reiterate that a claim of ineffectiveness generally cannot succeed through comparing, in hindsight, the trial strategy employed with alternatives not pursued. Id. Accordingly, we conclude that the PCRA court did not err in finding that counsel was effective, and we affirm the PCRA court‘s finding in this regard.
Having affirmed the determination by the PCRA court that trial counsel was effective, we will turn to the second part of this claim—the layered ineffectiveness claim. As noted previously, the PCRA court analyzed appellate counsels’ conduct independently and found that the record demonstrated that the appellate counsel who prepared the brief was ineffective since he only analyzed issues related to the guilt phase of trial and did not prepare any arguments related to the penalty phase of the trial. Similarly, the appellate counsel who argued the case on appeal did not separately review the issues. Accordingly, the PCRA court concluded that Appellant presented sufficient evidence to establish that appellate counsel were ineffective for failing to pursue this issue on appeal.
As we explained in Duffey II, the instant issue arose as a layered ineffectiveness claim. Thus, as with all claims of ineffectiveness, the petitioner must establish that: (1) the underlying claim has arguable merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and (3) the petitioner suffered prejudice as a result of that counsel‘s deficient performance as to each prior counsel. Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, 1023 (2003) (citing Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987)). The arguable merit prong of appellate counsel ineffectiveness is grounded in the underlying claim of trial counsel ineffectiveness. In order
The discussion of Appellant‘s underlying trial counsel claim and our agreement with the PCRA court‘s conclusion that trial counsel had a reasonable basis for pursuing a certain strategy makes clear that Appellant has not proved his underlying claim of trial counsel ineffectiveness. Accordingly, he cannot prove the arguable merit prong related to appellate counsel ineffectiveness and no relief is due on this claim.4
Alternatively, Appellant argues that even if the PCRA court‘s findings regarding trial counsel were correct, appellate counsels should have raised this claim as a claim of trial court error under the then-applicable relaxed waiver doctrine. Appellant ignores that this court‘s relaxed waiver doctrine was discretionary, and thus, there was no guarantee that we would have analyzed this issue under the relaxed waiver doctrine. See Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385, 400 n. 9 (2003). Accordingly, any reliance on this court‘s relaxed waiver doctrine is unavailing.
Having resolved the issue that was the subject of our remand in Duffey II, we must consider Appellant‘s remaining penalty phase issues, since in Duffey II we postponed review
Appellant first argues that trial counsel was ineffective for failing to adequately investigate and present mitigating circumstances to the jury. In support of his claim, Appellant raises five separate challenges to trial counsel‘s investigation, preparation, and presentation of mitigating evidence. The PCRA court held extensive hearings regarding Appellant‘s challenges and ultimately concluded that he was not entitled to relief. We now review the PCRA court‘s conclusion keeping in mind the standard of review set forth supra, 585 Pa. at pages 501-03, 889 A.2d at page 61.
Appellant attacks trial counsel‘s failure to uncover information related to the fact that Appellant lived in an EPA Superfund area from ages three to nine. The site was declared to be a Superfund site in 1983 and was known, at that time, to contain toxic elements, including lead. Additionally, PCRA counsel uncovered anecdotal evidence from Appellant‘s mother that Appellant ate paint chips. According to experts presented by Appellant during the PCRA hearing, exposure to lead could have caused Appellant‘s organic brain damage.
The PCRA court concluded that Appellant‘s claim failed since he never established that the facts and circumstances to be investigated were within counsel‘s knowledge. We agree. While counsel must undertake a reasonable investigation, there was no reason for counsel to conceive that Appellant had ever been exposed to lead, other than the fact that Appellant lived in a town that was declared to be a Superfund site in 1983. See Commonwealth v. Malloy, 579 Pa. 425, 856 A.2d 767 (2004) (indicating that counsel‘s ineffectiveness for failure to investigate depends upon a myriad of factors including the mitigation evidence that was actually presented, the reasonableness of counsel‘s investigation, and the mitigation evidence that could have been presented). As noted by the PCRA
Appellant next points to trial counsel‘s failure to investigate, prepare, and present mitigating evidence from family witnesses. While Appellant acknowledges that relevant mitigating evidence was presented by Appellant‘s mother and sister at the penalty hearing, he challenges the quality and quantity of this evidence. Specifically, Appellant offers that the evidence did not adequately establish Appellant‘s poverty-stricken childhood, the extreme mental and physical abuse he suffered at the hands of his father, his exposure to toxic chemicals, his poor performance at school, and the development of his mental and emotional disorders.
At the penalty phase trial counsel presented the testimony of Appellant‘s mother, sister, and a school counselor for evidence of Appellant‘s childhood history in support of the catchall mitigator,
After reviewing Appellant‘s challenge, the PCRA court concluded that trial counsel presented adequate testimony of Appellant‘s childhood. We agree with this conclusion. Based upon the testimony that was presented at the penalty phase hearing, Appellant has not established that counsel was ineffective in presenting mitigation evidence of Appellant‘s childhood. Appellant‘s argument regarding trial counsel‘s alleged deficiencies is directed at the quantity and quality of the same type of testimony that was offered in support of the catchall mitigator. Appellant does not offer that there was different evidence that could have been presented in support of the mitigating factor,7 but merely asserts that more evidence of
With respect to the remaining arguments regarding mitigating evidence, Appellant is challenging trial counsel‘s presentation of mitigating evidence to the jury during the penalty phase. As such, the focus of our review of these challenges will be on the reasonableness of trial counsel‘s presentation of mitigating evidence under the standard set forth supra, 585 Pa. at pp. 501-03, 889 A.2d at p. 61. See Miller, supra.
Appellant argues that trial counsel did not assist the jury in understanding the connection between Appellant‘s life history and his behavior at the time of the offense. In support of his argument, at the PCRA hearing, Appellant offered numerous experts to testify that Appellant suffered from organic brain damage and that there was extensive evidence in support of such a diagnosis at the time of the penalty phase hearing. Appellant does not argue that trial counsel did not have such information in his possession, but takes issue with the direction the defense experts’ testimony took, arguing that there was evidence of organic brain damage, mental illness, psychological deficiencies, physical abuse, and intellectual impairment, which the jury never heard. Further, Appellant contends that counsel failed to elicit testi-
During the penalty phase hearing, trial counsel offered the testimony of four experts in support of the two mental health mitigators. See
At the PCRA hearing, as noted above, Appellant presented extensive expert testimony in support of his contention that evidence existed at the time of the penalty phase hearing that demonstrated that Appellant suffered from organic brain damage. Furthermore, the expert testimony suggested that such brain damage was exemplified by Appellant‘s poor school performance, his feelings of isolation, and his seizure disorder,
In response, trial counsel testified regarding the presentation of Doctors Brennan and Lesniak‘s testimony during the penalty phase hearing. Trial counsel explained that from the outset, he wanted to focus on the seizure disorder and Appellant‘s competency. Both experts he secured, however, “determined without any hesitation that [Appellant] was competent to stand trial.” N.T., 12/17/1999, at 33; id. at 67. Trial counsel also testified as to his meetings with Dr. Brennan, after Dr. Brennan had reviewed Appellant‘s case, supporting materials, and the statutes regarding aggravating and mitigating circumstances. He testified that they focused on Appellant‘s epilepsy and the physical abuse. Id. at 67. Further, Dr. Brennan told him that he could diagnose Appellant with organic brain syndrome, but that ultimately, “[Dr. Brennan] said it isn‘t going to help you at all.” Id. at 68. Dr. Brennan explained to trial counsel that he felt the proper diagnosis was “personality disorder, antisocial personality.” Trial counsel further testified as to his discussions with Dr. Brennan and how his diagnosis would be helpful during the penalty phase:
I discussed how I could use that diagnosis, that evidence, in terms of the case, and he explained what he could say and he could not. The good part was you could say in front of the jury that it was classified as a mental illness. The good part was that it would relate to things that happened to him as a child that he was not responsible for. He couldn‘t help it that his father was mean and his economic circumstances.
Id. at 69. Trial counsel related that Dr. Brennan told him he could testify as to “organic brain syndrome,” but that “it wouldn‘t mean anything because in his interpretation whatever had occurred to this individual did not affect his thought or cognitive processes.” Id. at 71. Regarding the epilepsy, counsel remembered Dr. Brennan telling him that “it‘s in the wrong place,” implying that it was not relevant to the mitigating circumstances. Id. at 77-78. Lastly, with regard to Dr. Lesniak‘s testimony, trial counsel testified that “Lesniak was reluctant to state anything other than a personality, organic
personality disorder which, you know, was not going to be as helpful as I wanted.” Id. at 74. Thus, based upon his discussions with Doctors Brennan and Lesniak, counsel believed that he had no other choice, but to focus on the antisocial personality diagnosis, since at the very least it would give him the opportunity “to back door an additional element of [Appellant‘s] mental capacity” in order to raise a question in the jury‘s mind. Id. at 79.
The PCRA court credited trial counsel‘s testimony and ultimately concluded that “the fact that the appellant had found experts who now claim he has brain damage does not negate the fact that his trial counsel investigated his cognitive abilities and discussed it with the trial experts.” PCRA court opinion, 12/19/2000, at 23-24. Accordingly, the court concluded that counsel acted with a reasonable trial strategy in presenting mental health evidence. We agree.
In Commonwealth v. Rompilla, 554 Pa. 378, 721 A.2d 786 (1998),9 the appellant mounted a strikingly similar argument. In Rompilla, the defense hired three experts who diagnosed the appellant as a sociopath, but not as being brain damaged. Thus, trial counsel did not present any mental health mitigating evidence at trial. Following his trial, the appellant found additional experts willing to testify that he had brain damage. This court concluded that “the fact that Appellant now has found two experts who conclude that he has brain damage does not negate the fact that trial counsel investigated Appellant‘s cognitive abilities with other experts.” Id. at 790.
Similar to the situation in Rompilla, trial counsel investigated the possibility of presenting mental health mitigators to the jury. In fact, trial counsel in this case did much more than the counsel in Rompilla, since in this case, trial counsel obtained the relevant records, gave them to the experts, and actually presented evidence in support of the mental health mitigators. Based upon counsel‘s testimony
Appellant next argues that counsel was ineffective in the manner in which he presented the testimony of Thomas Gilhooley, a prison social worker. At the penalty phase, Gilhooley testified to the fact that Appellant told him details about the murder and then described the details of the murder that Appellant related to him. During closing arguments, trial counsel referred to different conversations Appellant had following the murder with various individuals, including Appellant‘s statements to Gilhooley, and argued that such statements were “corroborative of a type of impulsive, lack of conscious (sic) individual that we suggest that this individual is.” N.T., 2/7/1985, at 233.
Appellant now argues that the testimony elicited from Gilhooley was extremely harmful, since it highlighted the details of the crime. At the PCRA hearing, trial counsel explained that he put Gilhooley on the stand in order to contradict the Commonwealth‘s argument that Appellant killed the victim because he did not want to go back to jail. Trial counsel‘s position was that if Appellant did not want to go back to jail, he would not have confessed six times shortly after the murder. N.T., 12/17/1999, at 81. Appellant‘s statement to Gilhooley was evidence of an additional confession, and counsel pursued this line of inquiry to demonstrate Appellant‘s confused mental state. Id.
Lastly, Appellant argues that trial counsel‘s statements during closing arguments were weak, ineffective, and harmful, and painted Appellant as a “frightening, anti-social person without a conscience whose behavior was unexplainable.” Appellant‘s Brief at 50. In support of his argument, Appellant directs our attention to comments made by trial counsel during closing arguments, when he stated that: “[Appellant] has a personality disorder, lacks conscience, doesn‘t have a conscience“; “if you believe our testimony, people like this cannot be deterred“; “[Appellant] ... can‘t be treated“; “consider also, most important the fact that he said he felt better because he might do it to his own family next time“; “he doesn‘t even know he has a damn problem.” N.T., 2/7/1985, at 225, 230, 233-34.
During the PCRA hearing, counsel testified that his defense strategy was to raise the question of whether Appellant was “in his right mind.” N.T., 12/17/1999, at 87. Again, the PCRA court credited counsel‘s testimony and concluded that trial counsel‘s focus during closing arguments was to highlight the mental health issues and that counsel acted “in the best interest of his client.” PCRA court opinion at 27.
While this court would not go so far as to conclude that counsel acted in the “best interest” of Appellant, we agree that this claim is meritless. Notably, Appellant takes these comments out of context, and when read in context, it is clear that counsel was attempting to communicate to the jury that Appellant had a personality disorder and that the personality disorder made him act impulsively. Furthermore, counsel implied that jail was the best place for Appellant, since “the
Having reviewed Appellant‘s allegations regarding counsel‘s performance in presenting mitigating evidence, we turn to Appellant‘s remaining penalty phase claims. Appellant asserts that the penalty phase was tainted by victim impact evidence and points out that at the time of Appellant‘s trial, victim impact evidence was inadmissible. Commonwealth v. Fisher, 545 Pa. 233, 681 A.2d 130 (1996).
While Appellant correctly argues that the 1995 amendment to the death penalty statute permitting victim impact evidence “applies only to sentences imposed for offenses which took place on or after” the effective date of the amendment, id. at 145 n. 7, Appellant overlooks that we have indicated that it was not until Fisher that this court explicitly held, for the first time, that victim impact testimony was inadmissible at the penalty phase. Commonwealth v. Bracey, 568 Pa. 264, 795 A.2d 935, 939 n. 3 (2002). Fisher, however, was decided after Appellant‘s direct appeal was final, and Appellant cannot rely on that case to support claims made in a collateral appeal such as the one presented here. Id. Moreover, Appellant did not raise and preserve a challenge to victim impact evidence on direct appeal. Accordingly, this issue does not entitle Appellant to relief.
Appellant next argues that the trial court erroneously instructed the jury that it should weigh the sole aggravating circumstance against each mitigating circumstance individually, rather than against the collective weight of all of the mitigating circumstances. According to Appellant, such an
In DeHart, the verdict slip informed the jury that the aggravating circumstance was to be weighed against the mitigating “circumstance,” even though more than one mitigating circumstance was presented to the jury. Id. at 48. We held that the appellant‘s trial counsel was ineffective for failing to object to the instructions, which failed to track the statutory language in
In this case, Appellant acknowledges that the written instructions on the verdict slip correctly communicated the law to the jury, but contends that such a fact should not be deemed to correct the oral instructions, which did not properly communicate the law under
Appellant next argues that the penalty phase jury instructions erroneously suggested that the jury must unanimously find a mitigating circumstance in violation of Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988).
As we recently explained in Commonwealth v. Cox, 581 Pa. 107, 863 A.2d 536, 554 (2004), an alleged Mills violation will not be available on collateral review in cases in which the alleged error occurred before the United States Supreme Court‘s decision in Mills.13 In this case, the allegedly erroneous instruction was given in 1985, well before the Court‘s decision in Mills. This court affirmed Appellant‘s conviction on direct appeal on October 14, 1988, which was after the High Court‘s decision in Mills. Appellant, however, never raised or preserved a Mills claim before the trial court or on direct appeal. As such, Appellant‘s claim regarding Mills is waived. Cox, supra.
Like the appellant in Cox, Appellant attempts to overcome waiver by raising a layered claim of counsel‘s ineffectiveness. Trial counsel, however, will not be deemed ineffective for failing to anticipate a change in the law. Id. Accordingly, trial counsel was not ineffective for failing to anticipate the Mills decision, and thus, Appellant‘s layered claim necessarily fails.
Appellant next argues that the trial court erred in failing to instruct the jury that life in prison means life without the possibility of parole in violation of Simmons v. SouthCarolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). At the time of Appellant‘s trial, however, Simmons had not been decided and the law in Pennsylvania prohibited juries from being informed that “life means life.” Commonwealth v. Santiago, 579 Pa. 46, 855 A.2d 682, 700-01 (2004). Indeed, we have explained that ”Simmons will not be given retroactive effect in a collateral attack upon a petitioner‘s sentence.” Id. (citing Commonwealth v. Laird, 555 Pa. 629, 726 A.2d 346, 360 (1999)). Accordingly, this issue does not entitle Appellant to relief.
Lastly, Appellant raises a challenge to the proportionality review this court conducted on direct appeal.14 Specifically, Appellant argues that the procedures used to conduct the proportionality review in his case were defective and did not comport with the statutory requirement,
The statute governing proportionality review in effect at the time of Appellant‘s direct appeal provided that “[t]he Supreme Court shall affirm the sentence of death unless it determines that ... the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant.”
Under the pre-1995 version of the PCRA, in order to be entitled to relief, the burden was on the petitioner to establish that the conviction or sentence resulted from “a violation of the Constitution of Pennsylvania or laws of this Commonwealth ... which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.”
In this case, we agree with Appellant that in order to meet the mandate of
The relevant discussion in our opinion on direct appeal, states:
IV. PROPORTIONALITY REVIEW
Finally, it is the practice of this Court to conduct a proportionality review of each case in which the death penalty is imposed. Our review focuses on whether the sentence of death is excessive or disproportionate to the penalty im-
Our review indicates that where the aggravating circumstance found was that the killing was committed while in perpetration of a felony, and no mitigating circumstances were found, the death penalty has been imposed in the overwhelming majority of cases.
Duffey I, 548 A.2d at 1190-91 (citations and footnotes omitted) (emphasis added). The verdict slip that accompanied the death sentence, however, reflected that the jury found “one or more aggravating circumstances which outweigh any mitigating circumstances.” On its face, it appears that this court relied on erroneous information in conducting our proportionality review on direct appeal, since the verdict slip indicated that the jury found at least one mitigating circumstance.15 Thus, for purposes of the instant appeal, we will presume that there was a violation of the “laws of this Commonwealth,” since we did not accurately consider “the circumstances of the crime” as required by
Proceeding from this assumption, however, does not answer the question of whether this error entitles Appellant to relief, since we must also resolve whether the “error so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place” and whether the sentence of death “resulted from” this error.
We have indicated that claims arising during the penalty phase of a death case implicate the truth determining
In this case, we cannot simply turn the clock back and speculate as to what was in the court‘s mind at the time it affirmed Appellant‘s sentence of death on direct appeal. We need not engage in such speculation, however, since we can perform the necessary proportionality review at the present time, based on the aggravating circumstances found by the jury and the mitigating circumstances presented to the jury.16 Upon such review, we are confident that Appellant‘s sentence of death was proportional, and thus, cannot conclude that the sentence of death was a result of this court‘s alleged error in the direct appeal.
Accordingly, for the reasons stated herein, Appellant is not entitled to relief on his PCRA petition.
Justice NEWMAN and Justice BAER join the opinion.
Justice CASTILLE files a concurring opinion in which Justice EAKIN joins.
Justice SAYLOR files a dissenting opinion.
Justice CASTILLE concurring.
I join the Majority Opinion with the exception of the three points set forth below.
First, the Majority addresses the merits of appellant‘s claim of trial court error premised upon Commonwealth v. DeHart, 539 Pa. 5, 650 A.2d 38 (1994), as well as appellant‘s claim of trial court error premised upon a failure to issue a jury charge based on Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), as if they were preserved claims of trial court error available on PCRA review. See Majority, 585 Pa. at 516-19, 517-21, 889 A.2d at 70-71, 71-72. Neither DeHart nor Simmons was decided at the time the trial court instructed the jury in this case, and appellant did not anticipate them. As claims of trial court error, these belated contentions are waived and unavailable under the PCRA. To the extent appellant raises derivative claims of ineffective assistance of counsel, the claims fail because they clearly lack even arguable merit.
Second, with respect to the claim premised upon DeHart, in a footnote (though not in its substantive analysis) the Majority appears to recognize that the claim may be viewed through the guise of ineffective assistance of counsel. The Majority then suggests that an ineffectiveness claim premised upon DeHart is available to appellant even though the DeHart case did not exist at the time when counsel would have had to raise the objection because there is a distinction between failures to anticipate a change in the law and failures to vindicate statutory rights. See Majority op., 585 Pa. at 517 & n. 12, 889 A.2d at 70 & n. 12 (citing Commonwealth v. Hughes, 581 Pa. 274, 865 A.2d 761, 795 n. 36 (2004)). The footnote in Hughes which the Majority invokes in support of this rather simplistic view was written as a responsive repudiation of a point I made in my separate opinion in that case. See id. at 818-19 (Castille, J., joined by Eakin, J., concurring and dissenting). Hughes, however, does not stand for the broad proposition that counsel
As an example of the necessity for judicial construction of a statute before its proper interpretation may be deemed knowable and enforceable, one need only consider the Third Circuit‘s refusal to honor the state procedural default arising from the plain language of the PCRA‘s jurisdictional time-bar provision. The time-bar was adopted by the General Assembly in 1995 (taking effect in January 1996) and in the very first case in which this Court considered the new bar, we held that the plain language of the statute made clear that it was jurisdictional. See Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638 (1998). However, despite recognizing that the time-bar appeared “on its face to impose a one-year deadline in all cases except those falling within three categories,” the Third Circuit subsequently found that the statute could not be deemed to mean what it plainly said (for purposes of deferring to the time-bar as an adequate and independent state procedural default) until this Court had passed upon it a few more times and made clear that we would enforce its plain terms. See Bronshtein v. Horn, 404 F.3d 700, 708 (3d Cir.2005) (applying Fahy v. Horn, 240 F.3d 239, 245 (3d Cir.2001)). The Third Circuit experience proves the error of the simplistic approach to statutory interpretation suggested by the Majority.
It is also unclear whether this claim has been waived. The predicate for the claim is that this Court‘s opinion on direct appeal misapprehended the facts relevant to proportionality review. Under the version of the PCRA which governs here, an issue was deemed waived “if the petitioner failed to raise it and if it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or other proceeding actually conducted or in a prior [PCRA] proceeding.” See
Finally, and on a related note, to the extent that the record is unclear these many years later concerning whether this Court relied upon erroneous information in conducting its proportionality review, that ambiguity weighs against appellant, as he bears the burden under the PCRA. In addition, appellant must show that the supposed factual error on direct review “so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place” and that the sentence of death “resulted from” this error.
Justice EAKIN joins this concurring opinion.
Justice SAYLOR dissenting.
I respectfully dissent, as I would remand to the PCRA court for clarification and supplementation of its opinion before relying on its fact finding, since I believe that the opinion is ambiguous and insufficient in material respects.
For example, Appellant presents a colorable argument that the PCRA court‘s finding of a reasonable strategy on trial
[M]y theory behind my reasoning and rationale in support of my decision here today is that [trial counsel] in my view, first of all, did properly preserve the appeal. He preserved it in both his pretrial filings and his trial objections particularly in light of the relaxed waiver rule that was in place in 1984 with regard to death penalty cases in constitutional issues.
I further found that there was reasonable basis and rationale for not objecting once again during the course of the testimony because, one, it was already preserved. But more importantly [counsel] didn‘t want to call attention ...
N.T., November 18, 2004, at 166-67.1 On the other hand, however, the PCRA court otherwise expressly credited, at least in theory, the Commonwealth‘s argument that appellate counsel could not have been ineffective for failing to preserve this issue, because the underlying claim of trial-counsel inef-
To the degree that the PCRA court misapprehended that a general objection to expert testimony will preserve a challenge to an inappropriate reference to post-arrest silence occurring in the witness‘s examination, I believe that such potential misunderstanding colors the court‘s findings and conclusions, and therefore, they should not be relied upon in our review as if detached from their ambiguous context.
If the PCRA court‘s opinion is, as the majority holds, that counsel‘s conduct in failing to preserve an objection to the prejudicial references to post-arrest silence was reasonable, I have substantial reservations about accepting it, because the opinion lacks a meaningful, supporting evaluation.
For example, while crediting trial counsel‘s testimony that he forewent objections to the prejudicial testimony and argument because he had made other objections and did not wish to appear obstreperous to the jurors, the PCRA court has offered no review of any portion of the trial record concerning such other objections in terms of their quality and likelihood of success relative to the objections that could have been made to alleviate the prejudice ensuing from the references to post-arrest silence. It seems to me that, before accepting counsel‘s logic that his making of unmeritorious objections foreclosed ones necessary to prevent prejudice that is reasonably likely to have affected the imposition of a sentence of death, see Duffey, 579 Pa. at 204, 855 A.2d at 775 (finding that Appellant was prejudiced by the commentary concerning his post-arrest silence), a reviewing court would be duty bound to make some evaluation along these lines to distinguish between truly reasonable strategic choice and serious miscalculation. Indeed, the mere fact that the other objections asserted afford no cause for relief, as did the omitted one, seems to me to suggest a degree of circumspection in evaluating such ques-
Concerning the alternate explanation that counsel held some notion (that he later abandoned) that he might be able to turn the references to Appellant‘s post-arrest silence to Appellant‘s advantage by using them to demonstrate his limited mental capacity, see Majority Opinion, 585 Pa. at 503-04, 889 A.2d at 62, it seems apparent to me that there were ample, alternate means available to counsel to make his point (including the direct testimony of his own experts) that were substantially more direct and consistent with the objective of advancing his client‘s interests in avoiding the imposition of a death sentence than permitting prejudicial testimony impinging on Appellant‘s constitutional right against self-incrimination onto the record concerning Appellant‘s refusal to answer questions posed by the Commonwealth‘s expert witness.3 In this regard, counsel‘s reasoning on its face appears to fall squarely within the category of serious miscalculation, as opposed to reasonable strategy.
Notes
Appellant overlooks that the PCRA court‘s finding related to Dr. Hume‘s testimony generally and did not relate to the specific constitutional error that this court discussed in Duffey II. Moreover, there is no allegation that the trial court erred in admitting Dr. Hume‘s testimony generally. Rather, the allegation relates to specific testimony by Dr. Hume. As we held in Duffey II, this specific testimony was unobjected to by trial counsel, and thus, there can be no allegation of trial court error, i.e., that the trial court erred in overruling trial counsel‘s objection. We reiterate that appellate counsel cannot be ineffective if there was no error below.