*1 951A.2d 1110 Pennsylvania, Appellee COMMONWEALTH GIBSON, Appellant. Ronald Pennsylvania. Supreme Court of Submitted June 2002. July 2008.
Decided *2 Castille, C.J., McCaffery, concurring opinion issued which J., joined.
Eakin, J., dissenting opinion concurring part issued part. *6 Moreno, Defender Association of Philadel- Esq.,
James H. Philadelphia, for Ronald Gibson. phia, Burns, Jr., Esq., Philadelphia Amy Zapp, Esq., Hugh J. Office, Pennsylvania. Attorney’s District CASTILLE, SAYLOR, EAKIN, C.J., and BEFORE: GREENSPAN, BAER, TODD, McCAFFERY and JJ. OPINION Justice SAYLOR.1 appeal, capital post-conviction
After remand we error, allegations prose- of trial court appellant’s address misconduct, of counsel. and ineffective assistance cutorial reassigned 1. This case was to this author.
On December Appellant companions, two Green, Gregory Tancemore and David to a Philadelphia drove Woody’s Playhouse, bar known as approximately thirty where patrons present. other were entered a restroom at establishment, the rear of the he an off-duty where confronted bouncer, pointing a .45 caliber semi-automatic at his handgun ensued, stomach. A struggle and Tancemore fired his 9 millimeter semi-automatic into an handgun ceiling as apparent warning. Appellant and Tancemore fired more bar, shots fleeing resulting injuries while from the in fatal victims, Vernae Nixon and officer Freder- off-duty police ick Dukes. Tancemore away picked up drove with Green and direction, Appellant, running who had been a different a few blocks away. later, days
Two off-duty barmaid and the bouncer identi- fied from photographic arrays, and Appellant was arrested that afternoon.2 Appellant rights waived his under Arizona, Miranda v. U.S. S.Ct. 16 L.Ed.2d (1966), first, gave a statement to detectives. At Appellant admitted that he present had been at the scene of *7 Rather, the but he killings, any denied shots. he firing indicat- ed that Tancemore carried both the 9 millimeter and .45 caliber handguns and had him given a .380 caliber as the pistol two entered the bar. He also stated that Tancemore told him bouncer, to follow the whom Tancemore selling believed was cocaine, to the restroom and detain him there gunpoint. Appellant explained that the struggle the began when bouncer the handgun saw and until continued Tancemore shoot- began ing from the that, front of the bar. Appellant indicated when bar, he reached the front of the Tancemore him “get told money” the and that Tancemore had all fired of the shots. During interview, however, a break in the the detectives questioning Appellant learned that a .45 handgun caliber had been seized from apartment Green’s and that given Green had However, by 2. Tancemore was also identified several witnesses. he home, police, fled from the hostage took two women in their and ultimately committed suicide with a 9 millimeter semi-automatic hand- gun Gibson, apprehended. before he could be See Commonwealth v. (1997). 83 n. 1158 n. 6 it there. statement, that had hidden claiming Appellant a information, admitted Appellant confronted When with his, brought that he had handgun that the .45 caliber was bar, gun that he had concealed the within to the and gun that, after Appellant reaching also stated apartment. Green’s bar, weapon, he Dukes draw his the front of the saw Officer fleeing at the officer before and that he fired three shots interviews, statements, and upon scene. Based these witness evidence, counts of Appellant charged was with two physical murder, 2502(a), § see 18 Pa.C.S. two counts first-degree § count of criminal see 18 Pa.C.S. and one conspiracy, § robbery, see 18 Pa.C.S. 3701. counsel,
Initially, Appellant represented appointed was Ciccone, Esquire, appeared Appellant’s pre- Thomas who Apparently dissatisfied liminary hearing arraignment. however, retained Oscar representation, with this Gaskins, him trial represent shortly before was Esquire, initially commence. The trial court directed scheduled to cooperate to be Attorney present Ciccone with proceedings. the course of the Sub- attorney throughout new ex- during suppression proceedings, prosecutor sequently, regarding a concern the eleventh-hour substitution pressed court requested counsel and the trial conduct brief he indicated that colloquy Appellant. with Gaskins, representation Attorney satisfied with ready proceed joint representation. he with the See 24,1991, at 6. September N.T. immediately upon voir dire commenced denial
Individual outset, prosecutor expressed At the suppression. Attorney present, concern that Ciccone was violation of Attorney order. stated as follows: court’s Gaskins any problem your I don’t order or with Mr. have The is that the defendant is problem Ciccone. satisfied with *8 my representation.
[*] [*] :|: necessity continuing I to march him and any up don’t see ask him questions. Thereafter,
N.T., 2-3. trial September proceeded but Attor- Attorney representing Appellant, with Gaskins with ney Ciccone absent. chief,
In its case the the testi- presented Commonwealth mony of eyewitnesses, including several barmaid and off- bouncer, duty described the events that on the who occurred of the night positively murders and identified as a shooter. The bouncer also identified the that weapon Appel- lant had his as a .45 possession handgun. caliber Several police officers and concerning detectives testified their roles in collecting evidence from the scene circumstances surrounding Appellant’s apprehension questioning. Fur- ther, a expert ballistics described his of the tests bullets and cartridge casings from the killings, recovered scene as involved, as the weapons concluding well his opinion a bullet body recovered from the Dukes Officer was .45 caliber bullet from the handgun fired recovered from Green’s The apartment. medical examiner explained findings from the post-mortem examinations of the Finally, victims. Appellant’s introduced statements implicating himself in the crimes.
The defense by countered contesting identification of Appellant by the Commonwealth’s witnesses and challenging Appellant’s ownership weapon. murder The defense also presented testimony Appellant’s statements force, detectives had been coerced physical with several witnesses stating that his appearance arraignment at his consistent with his having been beaten. Appellant testified on his own behalf that he had been drinking with Tancemore and Green prior to the he no killings; knowledge had of a planned robbery; although he carried .380 caliber handgun into the bar, he did not fire any weapon; Tancemore and Green did the shooting; and the .45 pistol caliber Appel- Green’s. lant also indicated that the detectives had physically assaulted him to obtain his incriminating statements. Finally, de- presented fense several character witnesses who testified to reputation truthfulness. *9 and, in the charges, of all guilty jury Appellant
The found aggravating offered as the Commonwealth penalty phase, during perpetra- occurred killings that the circumstances 9711(d)(6); the defendant § see Pa.C.S. felony, tion of a in other persons risk of death to a grave created knowingly offense, 42 Pa.C.S. see addition to victims of another 9711(d)(7); had been convicted and the defendant § time of the offenses or at the either before murder committed 9711(d)(ll). to the issue, regard § With see 42 Pa.C.S. ar- Dukes, additionally the Commonwealth murder Officer in perform- killed peace a officer that the victim was gued 9711(d)(1). In support, § 42 Pa.C.S. ance of his duties. See instead, but, re- testimony, no presented the Commonwealth guilt phase, at the testimony adduced the record of upon lied in mat- present convictions reflecting Appellant’s the file Dukes counsel that Officer ter, from defense stipulation and a identification, pistol and badge, police of his possession was killed. when he was his lack of a circumstances mitigating offered as convictions, see 42 Pa.C.S. history prior
significant offenses, 42 Pa.C.S. 9711(e)(1), time of the see § his at the age 42 Pa.C.S. 9711(e)(4), see mitigator, and the catch-all § 9711(e)(8). factors, Appellant presented these support § To witnesses, of members consisting primarily character several friends, that: he testified was and his who family of his murders; he a time of the was old at the twenty-two years community college attended school and high student good most of his time; throughout absent his father for a child; he father to his own childhood; a good he was members; family from his discipline amenable jury The re- for Appellant. out of character murders were three death, aggravating that the finding turned sentences occurring killing found—that the unanimously circumstances risk of death grave the defendant created felony, during another convicted of the defendant was another person, found circumstance mitigating the sole outweighed murder — histo- criminal significant had no juror by any —that ry. Attorney permitted Gaskins was delays,
After several
appointed
from
the trial court
representation,
withdraw
mo-
post-trial
represent Appellant,
counsel to
substitute
delays,
more
the trial
Following
tions
filed.
several
were
and,
February
hearing
court conducted a
on such motions
sentences,
it
death
which were
reimposed
Gibson,
appeal.
affirmed on direct
See Commonwealth
(1997).
Pa.
In filed a se November Act, §§ 9541-9546 under the Post Relief Pa.C.S. Conviction (the “PCRA”). counsel and filed an appointed New was claims, additional petition, supplemented amended later with relief, allegations for included raising grounds numerous which (1) investigate for to and failing that: counsel was ineffective intoxication mitigation Appellant’s evidence related to present abuse, murders, drug at the time of the of and alcohol history (2) family penalty phase; and life at the the dysfunctional Brady evidence in of Commonwealth withheld violation (1963); Maryland, 373 U.S. S.Ct. L.Ed.2d (3) in peremptory challenges the exercised its Commonwealth and, racially discriminatory manner for this reason and others, death sentence the Appellant’s product improp- (4) discrimination; er racial in to failing trial court erred (5) continuance; grant for a Appellant’s request pretrial (6) jury improperly qualified; death trial counsel was failing present Appellant’s ineffective for to evidence of dimin- (7) capacity during guilt ished counsel was ineffec- phase; failing investigate tive for to and present evidence Green’s (8) murders; role in the counsel for to failing was ineffective (9) obtain and the “ballistics” adequately challenge report; in failing grant trial court erred to a continuance to the (10) witness; defense to locate a the “overwhelming” presence in police deprived Appel- uniformed officers the courtroom (11) trial; right lant of his to a fair the Appellant’s right process failing violated to due to test the (12) alleged fingerprints; murder for the trial court weapon erroneously jury instructed the on the murder of both victims together, relieving prove the Commonwealth of its burden to (13) offense; the trial court erred in
every element instruction; (14) and failing give voluntary to statement guilt penalty misconduct occurred prosecutorial count, that, In a also phases. separate argued of error trial adequately preserved, where claims were objections, to make failing counsel was ineffective provided failing counsel ineffective assistance appellate appeal. raise these and other matters on direct The Common- dismiss, alia, filed a motion to inter asserting, wealth waived, claims either Appellant’s previously litigated, were motion, meritless. The court an granted finding PCRA In its evidentiary hearing unnecessary. opinion, court that all of claims had noted been either waived or and, litigated, the substance of each previously addressing claim, them to merit. found be without
In to the claim of particular, respect ineffective assis- tance trial failing investigate present counsel for evidence, the court took the trial mitigation position counsel had “a case of at the presented very strong mitigation such case as penalty hearing,” describing follows: testify Counsel called nine to defendant’s good witnessés *11 character; mother, grandmother, grandfather, defendant’s uncle, aunts, school, a high two friend since the mother of daughter family’s. his and a friend of the Defendant’s a very good mother testified that her son was student who School, 20th in his graduated High class Simon Gratz senior president community college. class and went Mrs. also testified that her son in a grew up “jungle,” Gibson crack there are houses across the street and two doors down from her house and that defendant’s father left when 21 defendant was old. Defendant’s uncle testified mo[n]ths respectful pleasant that defendant was a and person who did very grandmother well school. Defendant’s testified that he The loving grandson. mother of defendant’s daughter testified that defendant “has been there for always my daughter.” me and All of the nine called on witnesses defendant’s behalf testified as to good his character. De- fense counsel and case for presented thorough strong mitigation jury. to the Gibson, Term, 1991, No. January slip 2001) (citations omitted). (C.P.Phila.Jan.8,
op. at 16 The court “pure speculation” Appellant’s characterized as assertion intoxication, abuse, jury might have found his substance to be a factor or to sufficient background mitigating have weight multiple weighty aggravating to overcome the Further, circumstances. Id. at 16-17. the court noted this admonition that ineffec- Court’s counsel will not be considered tive for one another. id. at merely choosing strategy over See Hardcastle, (citing Commonwealth v. 549 Pa. (1997)). A.2d Court,
On to this appeal many raised the same court, and, presented claims to the PCRA in December this evidentiary development, Court remanded the matter for fact, findings regard Appel- and conclusions of law with lant’s allegations failing trial counsel’s ineffectiveness in adequately investigate present mitigating evidence. We also directed the court to aspects PCRA address all layered jurisdiction ineffectiveness claim and retained over matter.3 Appellant supplemental filed a brief the PCRA court to conform his arguments regard to this Court’s requirements claims of ineffective assistance of appellate counsel, McGill, see Commonwealth v. (2003), and to apprise developments the court of new
the law.
The subsequently PCRA court an evidentiary conducted hearing, that, at which trial counsel testified due to retention, his eleventh-hour he adequate pre- lacked time to statement, Nigro concurring dissenting 3. Mr. Justice filed a devel- oping position scope that the of the remand should be limited to the development Appellant's regard claim with to the ineffective assis- counsel, as, view, appellate already tance of in his had by submitting demonstrated trial counsel’s written wit- ineffectiveness Eakin, support petition. ness declarations in of his PCRA Mr. Justice *12 Newman, joined by Mr. Justice Castille and Madame Justice issued a statement, dissenting expressing the belief that trial counsel’s decision present positive aspects Appellant’s evidence of of life was the strategy. result of a reasonable preparation or investigation trial and did little or no for pare 10, 2006, at 45- April of N.T. phase for trial. See penalty that he 46, 48-49, 50-51, counsel testified Appellate 103.4 claims, such as a of extra-record investigation conducted no of stewardship development to trial counsel’s challenge circumstances, understanding since it mitigating was record and existing to a his role confined review 133-34, 136.5 claims. id. at of record-based See presentation of family history to an entrenched mother testified Appellant’s use, as a Appellant witnessed drug alcoholism and which id. at ultimately succumbed. See and to he young child which Gibson, drinking Appellant began to Mrs. According 106-10. nineteen was years age by age alcohol at fourteen at 111. Mrs. Gibson also See id. frequently. intoxicated and was a victim domestic that Appellant testified witnessed other the hands of his father and in the household at abuse that, to her prior indicated men. id. at 111-17. She See trial, her trial counsel asked testimony penalty phase at the or life cir- concerning background questions no case, and cumstances, in a explain mitigation capital did not The id. at 118-19.6 her as a witness. See prepare did other fact present to permit PCRA court refused health testimony professionals. from mental witnesses opinion concluding The then issued an court the court hearing. Initially, penalty entitled to a new with trial also investigator who had been retained connection 4. An phase pre-trial penalty that there was no confirmed counsel’s assertions N.T., 10, 2006, investigation. April at 10-15. See regard prevail- understanding was inconsistent with Counsel’s in this 5. Hubbard, ing 276 n. v. Pa. law. See Commonwealth counsel[, (1977) (‘'[(Ineffectiveness including prior A.2d 695 n. 6 claims,] stage an issue at the earliest must be raised as extra-record being proceedings which the counsel whose effectiveness defendant.”). Parenthetically, challenged longer represents this no cases, approach subsequent Court has abandoned Hubbard that, case, be holding claims of ineffective assistance should in the usual Grant, post-conviction proceedings. See deferred to (2002). and fell testified that trial counsel was intoxicated 6. Mrs. Gibson also trial; however, rejected testimo- asleep during the PCRA court ny credibility grounds. on
417
change
development
penalty
attributed the
to the
of death
and a
subsequent
opinion
to the court’s 2001
jurisprudence
trial
counsel’s
appellate
performance
reexamination of
and
test
three-prong
of those
light
developments. Applying
developed
for actionable ineffectiveness as
Commonwealth
Pierce,
153,
(1987),7
v.
515
[h]ad
even
[counsel]
[he]
would have uncovered
of [Appellant’s]
evidence
intoxication
crime,
at the time of the
personal
family history
[his]
abuse,
drug and alcohol
dysfunctional family
and a
life.
counsel,
7. To obtain relief on a claim of ineffective assistance of
petitioner
underlying
arguable
must demonstrate that the
claim is of
merit,
inaction,
no reasonable basis existed for counsel’s action or
prejudice
proba-
counsel's error caused
such that there is a reasonable
bility
proceeding
that the result of the
would have been different absent
Pierce,
186, 203,
such error. See Commonwealth v.
567 Pa.
786 A.2d
203,
(2001);
Kimball,
299, 312,
213
Commonwealth v.
555 Pa.
724 A.2d
326,
(1999);
668, 687,
Washington,
see also Strickland v.
466 U.S.
2052, 2064,
that,
(1984) (explaining
104 S.Ct.
Id. at basis, the court that trial As to reasonable PCRA observed penalty-phase counsel testified that his failure to conduct a N.T. strategic was not a tactical decision. See investigation that, (reflecting testimony at 117 counsel’s “We April we, penalty way not to the the get phase, did believe we would fact, certainly enough And I didn’t have time—I had did. trial”). stage little time to even discuss the earlier of the very court that it that counsel apparent The PCRA indicated that led him to explore did not issues would have uncover mitigating evidence. The court characterized the available that been overwhelming evidence would have uncovered as counsel’s inactions and deemed unreasonable.
Finally,
prejudice,
developed
in terms of
the court
that a
that there is a
proba-
defendant must demonstrate
reasonable
that,
conduct,
the result
bility
unprofessional
but
counsel’s
proceedings
of the
would have been different. See Strickland
Washington,
(explaining
466 U.S.
“And I submit to heard you you what saw what not an mitigation was effort to address evidence mitigation, but an effort to not for engender your sympathy, but for those people expended uselessly defendant who their on affection his behalf.”
Gibson, at 7. The PCRA court it clear that the jury found evidence, presented with essential mitigation describing the defense “a penalty-phase evidence as sham effort elicit positive testimony character from ‘cry witnesses who would ” not to sentence beg jury to death.’ Id. [Appellant] Further, (quoting testimony from the defense investigator). shocking the court found “a lack of preparation was so [that] far of adequate below standard as to representation concept render the virtually effective assistance of counsel Thus, court, Id. meaningless.” according to the PCRA there was a probability penalty reasonable the outcome of the jurors deliberations would have been different had been presented mitigating evidence at the developed post- conviction id. stage. See *15 our
Surprisingly, although remand order authorized brief- ing, neither filed party supplemental briefs this Court with following Nevertheless, the PCRA court’s decision. as our retained, jurisdiction proceed was we to consider the PCRA court’s resolution of all by claims raised Appellant.
In addressing grant the or denial of post-conviction relief, consider the we whether PCRA court’s conclusions are record supported by evidence and are free of error. legal See Jones, 268, v. Commonwealth 590 Pa. 912 A.2d (2006) 108, (citing Travaglia, 541 Pa. 117 n. 352, (1995)). 4n. the eligibili Consistent with relief, ty requirements for PCRA Appellant frames his claims involving as violations of the or Pennsylvania United States Constitutions, including the denial of assistance of effective ii). noted, 9543(a)(2)(i, As § 42 Pa.C.S.
counsel. See
must dem-
allegations, Appellant
on his ineffectiveness
prevail
merit;
that
arguable
claim is of
underlying
that the
onstrate
act or
existed for counsel’s
strategic basis
no reasonable
or, in
prejudice,
resulted in
omission;
that counsel’s error
that the
words,
probability
a reasonable
that there is
other
In
note 7.
supra
been different. See
have
outcome would
that
claims
addition,
to establish
required
42 Pa.C.S.
See
litigated
not been
waived.
previously
have
9543(a)(3).
repre-
since
regard,
§
In the latter
his claims of ineffec-
appeal,
on direct
sented
new counsel
not raised at that
counsel that
assistance of trial
were
tive
claims are
waived,
extant ineffectiveness
only
time are
performance
counsel’s
challenging appellate
ones
derivative
McGill,
claims.
ineffectiveness
See
underlying
relative to the
in a number
I. The Claim above, perspective the PCRA court’s developed As associat claim of ineffective assistance concerning Appellant’s mitigating evi presentation development ed changed trial dra penalty phase dence at the supporting In its initial opinion after remand. matically evidentiary development, dismissal of the claim without trial, strategy pursued primarily court on focused mitigation” presented. case of finding “very strong Gibson, Term, at 16 slip op. January No. See contrast, remand, (1/8/2001). the court indicated By after lack “complete lack of “shocking preparation,” there awas evidence,” to mount a penalty- and a “sham effort” mitigating Term, 1991, Gibson, slip January No. defense. phase *16 (4/26/2006). court explained the PCRA Although at 7 op.
421
of
“development
penalty
its reversal was due
the
death
jurisprudence,”
identify
any
it did not
a decision from
court
characterizes as
which would have treated what
court now
adequate stewardship.
a “sham effort” as
that,
now,
recognize
We
for some time
both this Court and
Supreme
the United States
been operating
Court have
majorities
swing
capital-sentenc
slim
and
votes in the arena of
v.
generally
See
Commonwealth
ineffectiveness claims.
ing
Uderra,
(2004)
492,
17,
74,
580 Pa.
524 n.
862
98 n.
A.2d
17
(noting
opinion among
substantial differences of
Justices con
cerning
proper merits resolution of claims of ineffective
assistance of counsel for
failing
investigate, develop,
cases).8 Further,
in
reso
present mitigating
capital
evidence
fact-intensive,
that,
lution of the cases is
so
other
frequently
standards,
than in terms of
pronouncement
overarching
precedential
effect of
decisions
be limited.
may
individual
While
understand the
certainly
may
we
difficulties
hearing-court
cause at the
and are
to the
sympathetic
level
courts,
substantial
of the
required
work
PCRA
we believe
example,
opinion
Hughes,
8. For
in the divided
in
v.
581
274,
(2004),
general applica-
Pa.
Given we find remand is court to necessary permit additional PCRA Williams, them. address Accord Commonwealth 207, 232-33, (1999) (remanding 1189-90 to a court for factual conclusions specific findings legal PCRA alia, inter trial regarding, stewardship counsel’s connected evidence). alleged present mitigating with the failure to The expressly requested court is to resolve areas of factual contro- versy credibility disputes findings. via numbered factual Further, given that there is some overlap between trial *18 post-conviction and of the lay life-history cases terms testimony, appears it that determinations concerning the cred- and ibility impact of the mitigation may mental-health be Therefore, of the dispositive present claim.11 as of the part fairly support another reason that could a conclusion that fair opportunity provided presentation testimony. for the Bernstein, M.D., example, 10. For the declaration of Lawson F. indi- cates as follows: [Appellant’s] impairment mental state and aas result of his head- aches, self-medication, alcohol/drug organic mood disorder and su- per-imposed provided acute intoxication would have substantial mitigating [Appellant's] mental health evidence. illnesses caused a significant impairment functioning, in his mental and emotional including key cognition, memory, reasoning, deficits in areas of control, span, judgment, learning, impulse attention emotional labili- ty ability weigh appreciate consequences, and the to and and the ability [Appellant's] to aggregate understand cause and effect. neu- ropsychiatric neurological, condition constituted an extreme mental and emotional disturbance!.] believed, If obviously implicate this evidence mitigating would the 9711(e)(2), 9711(e)(2) (estab- § circumstance under Section 42 Pa.C.S. lishing mitigating the circumstance that "[t]he defendant was under the disturbance.”). influence of extreme mental or emotional Notably, 11. Appellant’s proffer, least on the face of alcoholism and drug mitigation. use are intertwined with the mental-health Since drug may regarded by jurors alcohol and use having be at least some as component, a substantial volitional creditable medical/mental-health testimony may heightened general- assume a role in such cases. More ly, empirical there is at support least some for the notion that mental- mitigation may impact penalty proceedings, health have substantial see, e.g., Stephen Garvey, Aggravation Mitigation P. Capital and Think?, (1998) Cases: What Do Jurors 98 Colum L.Rev 1559
424
develop-
the
court
is to
proceedings,
permit
remand
PCRA
(as
as
mitigation
of the mental-health
evidence
well
ment
and
cross-examination
rebuttal evidence
appropriate
Commonwealth),
of such
why
explain
presentation
to
be
if there is
default
should
some relevant
precluded
evidence
develop
to
part. Finally, the PCRA court is
on
at trial with
comparison
mitigation
of the
case offered
specific
review,
post-conviction
offered on
the credited evidence
it is
object
why
reasonably probable
as to
elaborating
juror
assigned
Appel-
one
might
weight
that at least
have
greater
evidence
to or
post-conviction
equal
lant’s credited
jury.
found by
sentencing
than the substantial
aggravation
merit
arguable
The PCRA court need
revisit
inquiry,
strategy prongs
and reasonable
ineffectiveness
however,
its
in such
present
findings
as we conclude that
supported.
are
It is
established
respects
sufficient
well
“obligation
thorough
counsel
to conduct a
capital
has
Williams,
evidence,
529
mitigating
for
investigation”
possible
(citing
120
ABA
at 1514-15
U.S.
S.Ct.
Standards
(2d ed.1980)),
deci-
or make reasonable
Criminal
Justice
(finding
be the
evidence of mental retardation
mental illness to
factors,
doubt),
certainly
persuasive mitigating
after
most
residual
See,
potential mitigating
various other courts have stressed the
effect.
Barnette,
(4th Cir.2000) (stating
e.g.,;
211 F.3d
United States v.
trials”);
important part many
"psychiatric
an
Baxter
evidence is
Thomas,
(11th Cir.1995) (“Psychiatric mitigating
F.3d
"
potential
totally change
evidentiary picture).'
'has the
evidence
Cir.1988));
(11th
(quoting
Dugger,
F.2d
Middleton v.
*19
919,
Coleman,
509,
212,
People
934
v.
Ill.2d
214 Ill.Dec.
660 N.E.2d
168
(1995) (“We
importance
acknowledge
critical
of a defendant’s
decision.”).
background
sentencing
and mental health to the
appears
Mr.
Eakin
to discount the notion that mental-health
Justice
capital
sentencing pro-
mitigation can be
beneficial to
defendant
Dissenting
ceedings.
ever,
Concurring
Opinion, op.
How-
See
at 1157.
understanding
long-standing precedent
such
is embedded
302,
Supreme
Penry
Lynaugh,
States
See
v.
492 U.S.
United
Court.
2947,
319,
2934,
(1989) (explaining that
109 S.Ct.
Here, the conclusion that no supports the credited evidence undertaken. pre-trial investigation mitigating evidence was case, Attorney late into the it light entry While Gaskins’ certainly stewardship is debatable whether the deficient original attributed to him or to counsel should be largely Attorney replaced, question whom Gaskins purposes, collateral to the For our it is present inquiry.12 finding pre-trial that there is a that no enough supported (or undertaken, and there is no investigation was evidence finding) professional judgment sup- some reasonable the limitation of the ported investigation. Remaining
II. The Claims Brady A. Claim Appellant contends that the Commonwealth withheld Green, provided the statement thus detectives David the rule of at violating Brady, U.S. 83 S.Ct. material, which holds that the failure to disclose exculpatory evidence violates the Due Process of the Fourteenth Clause counsel, original replace 12. While made the decision his suggesting attorney there is evidence of record that such conducted no N.T., investigation concerning mitigation. April See (reflecting Appellant's original 49-50 that the file received from counsel Thus, mitigation investigation). Appellant's contained no record of a founded, appears unlikely decision to have been well it seems any position permitted original he have been in would better had he proceed. counsel to *20 observes that Green’s statement was Amendment. discovery by included materials disclosed to trial. See Letter prior 1991; Declaration, Ciccone, Feb. see also Ciccone Thomas ¶ ¶ Declaration, Further, 3; 3. Appellant highlights Gaskins denials, see Letter from repeated Jan Commonwealth’s Berkowitz, 13, 1998; N.T. December April Folena to Ellen (“We taken from David at 7 of no statement know it, it to trial provided don’t have and wasn’t Green. We it.”), counsel because we don’t have contradicted even- see Letter from May tual disclosure of statement Cotter, 21,1999. May Klein to John Andrew In statement favorable to his asserting Green’s was defense, observes that Green informed the detec- that: tives
[Appellant] stayed my place Sunday night. had over on On it around 2 or 4 o’clock in the past Monday was go up afternoon and we decided to to this bar at 29th & Chalmers, it’s called ... got DONNERS When we DONNER’s, drings had a and couple [Appellant] we [sic] knew, I guy saw this he had met [Tancemore]. [Tance- club, about or 3 before at this other NINO’s weeks more] stayed at Broad & Girard. The 3 of us DONNER’s for a of hours and then left and couple riding we was West boy.... to see some Philly
... I I talking went into the bar. saw to some [Tancemore] guys ways [Appellant] sitting a little down the bar and was drink____ bar and he sipping My beeper was I in the I went off while was bar so left went outside just I phone---- sitting and used the the front for about 2 minutes all of a passenger seat sudden some came out of the bar and then I people running seen [Tance- from the and it like I running bar chaos. was more] half at first and ran to the car and asleep [Tancemore] I jumped gun in the driver’s seat. seen that his in his him, said, hand I said to “what he happened”, [sic].... “I shot a I him he couple people”. why asked but didn’t say nothing right away but then he said about something *21 him and some into guy got arguement a[sic] [sic]. Green,
Statement David Dec. at 2-3 (emphasis added). Appellant contends that this statement would have alerted counsel to the intoxi- possible voluntary defense cation or potential mitigating factors to the penalty relative Brief for phase. See at 13 (citing Pa.C.S. 9711(e)(2), (e)(3), (e)(8)). § Further, argues that the statement would trial that supported have contentions no robbery planned had been and that Tancemore com- had mitted the killings, as Green denied of a any knowledge planned robbery having and heard Tancemore admit to an argument with someone and “a shooting couple people.” Appellant also maintains that statement Green’s was material defense, to the on relying the declarations of Attorneys Cic- Gaskins, cone and who stated that the statement would have substantially their preparation affected and trial strategy. Although Appellant admits that aspects there are of Green’s defense, statement that could have harmed his he claims that the favorable portions of the statement far outweigh any potential harm and created a reasonable jury, likelihood that a upon learning of Green’s statement or him hearing testify, rejected would have the Commonwealth’s conspiracy theory. Commonwealth, The hand, on the other that the contends Brady claim is because it waived was not raised at trial and has not been properly layered in Appellant’s submissions. Furthermore, the Commonwealth stresses that it appar- ent at the time of trial that Green had given typewritten detectives; statement to therefore, there is no doubt that both trial appellate and counsel knew of the statement’s existence. The Commonwealth highlights Appellant has of- never fered to prove that intentionally sup- statement, pressed Green’s necessary of a requirement claim. The Brady Commonwealth also stresses that Green’s statement rather, was neither nor exculpatory, favorable but powerfully In Appellant. regard, incriminated the Com- monwealth relies following on the from passages the state- ment: into the car him and [Appellant] got
After [Tancemore] talking happened [Appel- in the bar and started about what said, said, “I somebody” I hit and [Tancemore] think lant] somebody I think I too”. “yeah, hit
[*]
[*]
[*]
my apart-
day,
seeing Appellant
next
after
outside
[The
ment], I
did
[my
[Appellant]
asked
niece and
what
brother]
me he
they
got
in the house
told
had
some clothes.
do
me
had
the bathroom to
My
[Appellant]
niece told
used
he left.
15 minutes later
change some clothes before
About
his car
[Appellant]
I
outside
I seen that
went
just
I
starting
get
It was
dark then.... When
gone.
my
putting
bed last
I took
I
it
night
money
and was
went
my
gun
mattress and that’s when I seen
there.
*22
under
picked
in a tan
I
it
that’s when I
up
It
sack and when
a
I looked at
when I
gun.
gun
it was
the
that’s
knew
When
[5,
I
a
I think
[Appellant’s] gun.
knew it was
knew he had
I
the
ago
Llama.
he had
3 weeks
it’s a
first knew
about
him
gun
pants....
I seen
the
tucked in his
carrying
when
or 11 this
called
morning
Then around 10:30
[Tancemore]
me and that’s when I found out that 2
had been
people
said,
called,
“yeah,
killed at the bar. Then
he
[Tancemore]
news”,
no,
said,
the
I toldhim
he
did
see
then
you
[sic]
news,
died,
the
in the bar
people
“it made
those two
we shot
lady”
one of them was
and one
them
...
a[cop]
him,
I
to
“I looked
mattress and
my
That’s when said
under
he
[Appellant’s]
that
had
there”. That’s
gun
left
found
me,
you
you
“if
like I
told
know
know
when [Tancemore]
...
get
gun”
had better
of that
rid
added).
In
of these
(emphasis
light
Green Statement at 3-5
develops
that
the statement
passages,
Commonwealth
weapon,
as the
the murder
as
implicated Appellant
owner
at
hidden
having
person,
having
shot
least one
as
thus
pistol
apartment,
providing strong
Green’s
corrobora-
To the
that
prosecution
degree
tion for
case.
counsel
argues that
statement would have alerted his
that,
intoxication, the
*23
we
Appellant
cannot
prejudice
establish
relative to the deriv
ative one. As the PCRA court
developed,
establish a
violation,
Brady
a defendant is required to demonstrate that
evidence,
defense,
or
exculpatory
impeaching
favorable to the
suppressed by
prosecution,
to the prejudice of the
Greene,
263, 281-82,
defendant. See Strickler v.
527
119
U.S.
1936, 1948,
(1999);
S.Ct.
430
(2002).
294,
47, 65,
satisfy
305
To
Pa.
800 A.2d
Paddy, 569
been
must have
suppressed
the evidence
prejudice inquiry,
87,
at
83
Brady,
See
373 U.S.
guilt
punishment.
material to
1196-1197;
66,
at 305.
Pa. at
800 A.2d
Paddy,
at
569
S.Ct.
probability,
there is a reasonable
material
Evidence is
when
trial,
of the
confidence in the outcome
to undermine
sufficient
been different
would have
proceeding
that the result
v.
514
Kyles Whitley,
been disclosed. See
had the evidence
1566,
(1995);
1555,
431
admission,
caliber
weapon,
but also identifies the murder
.45
also
Appellant.
as
to
The statement
handgun,
belonging
that Ap-
the
contention at trial
corroborates
Commonwealth’s
hiding
to conceal his
his
pellant
steps
took
involvement
the homicides.
handgun
attempting
implicate
Green
addition,
In
the
state-
argues,
as
Commonwealth also
Green’s
the
of an
necessary
possibility
ment
not
to alert counsel to
defense,
capacity
intoxication or diminished
since
counsel that
intoxicated on
could have informed
he had been
and,
offense,
night
notably, Appellant
the
of the
himself testi-
drinking
fied at trial that he had
fact been
for some time
7, 1991,
to the
prior
murders. See N.T. October
at 79-80.
Further, contrary to
statement
Appellant’s argument, Green’s
existed,
not
that no
conspiracy
did
demonstrate
rob the bar
instead,
but
not
only
may
evidenced
Green himself
have
conspiracy,
been aware of such a
that was
proposition
consistent
statement
Appellant’s
detectives. See
Further,
id. at 40-41.
the PCRA
not credit the
court did
declarations of
that the
Appellant’s attorneys
Commonwealth’s
disclosure of
statement
the de-
Green’s
would have altered
strategy,
fense trial
reasoning
absence
Green’s
benefit,
Appellant’s
statement worked to
as it would have
rebutted testimony
own
at trial that it was Green
7, 1991,
who fired
fatal shots. See N.T.
October
87-89.
reasons,
For the above
non-disclosure Green’s state-
ment does not undermine confidence in
Appel-
the outcome of
trial,
lant’s
and we will sustain the dismissal of this claim by
the PCRA court. See Commonwealth v.
Travaglia,
(1995) (“If
it is clear that Appellant
not met
prejudice prong
has
stan-
ineffectiveness
dard, the claim may be dismissed on that basis alone and the
court
need
first determine whether the first
second
met.”)
prongs
(citing
have been
Strickland v.
Washington,
2052, 2069-70,
(1984)).
U.S.
104 S.Ct.
B.
Racial Discrimination
Acknowledging that a claim under
v. Kentucky,
Batson
(1986),
476 U.S.
106 S.Ct.
L.Ed.2d
was raised
contends that
this Court
Appellant now
appeal,
on direct
issue,
not rest upon
does
argument
as
should revisit
litigated. See Common-
previously
that has been
evidence
*25
592,
Miller,
500,
9,
602 n. 9
519 n.
746 A.2d
v.
560 Pa.
wealth
(2000) (“Because
the
solely upon
does not rest
this claim
evidence,
of
reach the merits
we will
litigated
previously
claim.”).
a
asserts that
Appellant
appellant’s
Specifically,
Attorney’s
District
by
Philadelphia
made
the
training tape
in
1987,
attorneys
district
in
which instructed assistant
Office
discriminatory
racially
strikes in a
peremptory
the use of
systemat
and
a
manner,
recently
light
came
evidences
only
in
the
part
prosecution
of
on
practice
ic
discrimination
1723,
Batson,
96,
at
The only suggestion prejudice associated deriva- tive claims contained upon Ap- within declarations which pellant relies from by Appellant’s derives assertions former that, attorneys they statement, had they obtained Green’s have their strategy, would altered since the statement con- exculpatory tained information in the form Tancemore’s admission to shot having patrons bar intoxi- declaration, however, cation.15 Neither addresses context *26 of the relied-upon passages, or their among highly occurrence statement, inculpatory passages Green’s a reflecting belief by Appellant someone, that he had shot Appellant’s ownership Dukes, of the .45 caliber handgun which killed Officer and his concealment of the weapon at the location at it which was Further, found by police. trial again, counsel did not need statement apprehend Green’s that Appellant had been on the drinking night offenses. his We conclude that Appellant’s proffer failed to a advance sufficient claim of prejudice associated the alleged failure of counsel to a preserve claim from the deriving denial of a Therefore, continuance. the PCRA court not err in did dis- missing this claim without a hearing. Qualification Improper
D. Asserted Death juror claims that a was excused improperly cause, since, for by when asked the trial court whether he was so irrevocably opposed to the death penalty as to be unable to law, not, follow he stated “I guess no.” relies investigator's 15. The defense statement also contains an indication that greatly investigation, the Green statement would have aided his but this sufficiently assertion is specific prejudice to contribute to the assessment. 434 1770, Illinois, 510, 20 88 v. 391 U.S. S.Ct.
upon Witherspoon (1968), Court Supreme the United States which L.Ed.2d 776 jury carried out if the death cannot be that “a sentence of held by excluding it chosen or recommended imposed objec- they general because voiced simply for cause veniremen conscientious or expressed or penalty to the death tions 522, Id. at 88 S.Ct. against its infliction.” scruples religious venireperson the fact that this According Appellant, 1777. he indicated though from even jury excused service feelings example is an personal aside his put he could Further, all he asserts that death-qualification. improper claim. failing for to raise this ineffective prior counsel were assertions that this claim responds with The Commonwealth merit, In terms of the Common and meritless. is waived nature of a trial court’s discretionary emphasizes wealth Stevens, cause, v. see Commonwealth challenges on rulings (1999), 507, and the standard 171, 197, A.2d 521 v. are assessed. See Commonwealth challenges such which (1997) Morales, 400, 417-19, 524-25 Pa. (“The determining prospective standard for when proper on dismissed for cause is whether views juror may be substantially impair ‘prevent capital punishment would juror in accordance with his of his duties as performance ” Witt, Wainwright (quoting and his oath.’ instructions (1985))). The 83 L.Ed.2d S.Ct. U.S. that, dire, the referenced during voir develops that he could not stated juror emphatically repeatedly penalty, the death as follows: impose moral, ethical you any religious, Do THE COURT: have death in a case? penalty against imposition beliefs *27 it, I no. don’t believe PROSPECTIVE JUROR: in the death you don’t believe you say THE When COURT: religious that based on belief? is penalty, just right I believe it’s to don’t PROSPECTIVE JUROR: matter anyone, the life of no what. take THE COURT: Counsel. questions. I no have COUNSEL]:
[DEFENSE I exactly, ... so I understand [PROSECUTOR]: [J]ust my in a fashion. It is question precise have ask understanding your Judge’s question from to the answer decision, if no matter you that were forced to make a what no matter particular the facts a case were and what is, beliefs, because of would be you, your personal law individual, unable to the death on another impose penalty that correct? No, I in it. JUROR: it’s not. don’t believe
PROSPECTIVE beliefs, I’m saying, your you because of [PROSECUTOR]: be is that impose penalty, would unable to ever the death you’re saying? what
PROSPECTIVE JUROR: Yes. Thank you.
[PROSECUTOR]: THE COURT: Is to the death such your opposition penalty that you automatically against penalty would vote the death for this regardless defendant of the facts of this case? PROSPECTIVE I change my opinion JUROR: wouldn’t Iwhat think.
N.T. September to the According 55-57. Com- monwealth, this Court has determined that trial courts dis- jurors missed prospective properly for cause due to their opposition to the death far penalty cases less obvious present one. Appellee (citing, See Brief for at 83-84 inter alia, Cox, Commonwealth v. (1999) (holding that a trial court did abuse its discre-
tion it potential jurors when dismissed after their cause answers to or more questions regarding ability two their impose the death in an penalty appropriate case indicated an so)). inability that, to do The prior Commonwealth stresses statement, his final the venireperson steadfastly had repeatedly opposed maintained he was to the death case, penalty every and that he change would not The opinion. prospective juror’s ultimate equivocation, asserts, merely represented “nearly desper- ate effort man highly repeated frustrated to end this pointed questioning.” Id. at 84.
436 that its degree to the Commonwealth agree with
We trial court’s discre- it that was within argument suggests prospec- from the arising issue credibility resolve the tion to Further, Appellant has juror’s contradictory responses. tive evidentiary an might warrant proffer which presented on this claim. hearing Capacity Defense
E. Diminished ineffec his counsel was contends that trial Appellant capacity of diminished to a defense failing present tive of his trial. guilt phase during intoxication voluntary conclu that, to the court’s contrary PCRA observes Appellant his been inconsistent with sion, not have such a defense would view, re accepted he as in testimony, trial own incident, N.T. Octo in the see for his involvement sponsibility 78, at the time that he armed ánd admitted ber murders, maintains id. at 85. see evidence mental health duty investigate has a counsel coun defense when capacity to a diminished potential related or, investigation, should have known sel with reasonable knew health See Com possible problems. mental of a defendant’s 437, 445-46, 433-34 Legg, v. monwealth (1998). trial counsel asserts that regard, Appellant In this defense, that this investigate that he did not admitted investigator. trial by corroborated counsel’s admission was cannot be reasonable absent strategy trial Because counsel’s alternatives, Appellant argues investigation of adequate a different defense strategic present decision no reasonable 551 Legg, in the matter. See present been reached could have (“Because counsel did not investi A.2d at 434 Pa. at mental histo investigating Appellant’s not recall gate or could that he made Superior Court agree cannot ry, we defense.”); capacity a diminished rational decision to avoid A.2d Pa. Perry, (1994) (“Failure abdication of the simply ... an prepare counsel.”). of defense required performance minimum that, any form claims had trial counsel conducted Appel he would have discovered background investigation, from history prior lant’s of alcohol and substance abuse records, a psychological court which included evaluation. See (“He Mental Health at 4 has a Byrne Evaluation Lawrence Abuse and also abuses Alcohol significant history Cocaine Moreover, heavily.”). Appellant contends that evidence of his *29 severely intoxicated state at the time of his offenses was available, readily provided as several witnesses could have information both concerning Appellant’s history substance consumption abuse and his on the of the murders.16 night asserts that the failure of counsel to and Appellant investigate this and to the creates a present testimony jury evidence probability reasonable that the result of his trial would have conclusion, In been different. asserts that Appellant briefly appellate failing counsel was ineffective for to and investigate raise this claim on direct appeal. claim, rejecting
In court on the PCRA relied principle that counsel not be found for failing will ineffective pursue capacity diminished defense when defendant See, his throughout maintains innocence the trial. e.g., Com Fisher, 558, 582, 1234, monwealth v. 559 Pa. 741 A.2d 1246-47 (1999). defense, Reviewing Appellant’s the PCRA court de termined that the evidence diminished and volun capacity intoxication tary Appellant that contends been should have presented directly would have contradicted his testimony own witness, that, example, explained 16. One would have at a different prior shootings, Appellant bar to the had consumed "at least six shots” of Southern Comfort and at champagne, least half of a bottle of rendering him unconscious. Another witness would also have in- Appellant "cough formed counsel that he and syrup had consumed angel night” barely dust that and that "could walk” when he addition, left the bar with Tancemore and Green. In another witness explained Appellant's significant would have alcohol abuse had Moreover, memory. effects on his observes that consultation experts viability capacity with would have revealed the of a diminished voluntary intoxication defense. See Affidavit of Brian McMillen at 2 10, 1998) (Sept. (estimating Appellant’s blood alcohol concentra- 0.284%); tion at the time of the offense was Declaration of Lawson ¶ Bernstein, (Feb. 23, 1999) (“[Appellant’s] aggregate 6 neuropsycliia- tric neurological, condition constituted an extreme mental and emotion- disturbance, substantially impaired al capacity premeditate, specific deliberate and form homicidal intent and to be conscious of during period question.”). that intent the time 438 that killed Nixon and gunshots
that he
not fire the
Ms.
did
See,
7, 1991,
Thus,
at 88.
e.g.,
Dukes.
N.T. October
Officer
trial counsel
not ineffective for
the court concluded that
that conflicts
present
a defense
failing
Laird,
629, 645-46,
Pa.
v.
555
testimony. See Commonwealth
(1999)
Paolello,
346,
v.
(citing
A.2d
354
Commonwealth
726
439,
(1995)).
47, 78-79,
Pa.
665 A.2d
observed, diminished
capacity
As this Court has
defenses,
are limited
do not excul
voluntary intoxication
which
liability entirely,
the defendant from criminal
but instead
pate
intent. See Commonwealth v.
negate
specific
element
(2005)
(citing
583 Pa.
Q: you anybody you any Did that night? bar No, I kill and I anybody any
A: didn’t didn’t fire shots. 114; N.T. see also id. at 112. Similar- October denied in or to ly, Appellant expressly participating agreeing robbery: Had made in the bar? Q: you any anybody efforts rob No, I A: had not.
Q: you any Had Taneemore or conversation with David robbing anybody
Green about inside the bar? No,
A:
I didn’t.
addition,
In
Id. at 90.
Appellant attempted
implicate
Taneemore and
perpetrators.
Green as
actual
See id. at
Thus,
record,
87-89.
upon review of the
it is
apparent
Appellant did not admit
liability
any
for the murders
fashion,
such,
but rather asserted his
innocence.
trial
own
As
counsel cannot be faulted for failing
present
evidence of
diminished
capacity
light of his client’s
testi-
contrary
own
See,
mony.
e.g.,
1218;
Spotz,
483-84, (2004) (“Moreover, even counsel if had thoroughly investigated Appellant’s past, the presentation of a diminished capacity defense would have contra- directly dicted Appellant’s assertions that someone else had committed crime, and thus would have been an available defense.” added)). (emphasis *31 Recently,
17.
receptive
this author indicated that he would be
to recon-
sidering
upon
upon
restrictions
alternative defenses
the advance-
arguments grounded
underpinnings.
ment of
in the theoretical
See
107-08,
Spotz,
J„
(Saylor,
concurring
F. Failure ineffective that trial counsel was argues Appellant impli- could have who present to locate and witnesses failing asserts Appellant Specifically, in the murders. cated Green that he had observed have testified that a witness would at a differ- drinking together Tancemore and Green Appellant, occurred, see Declaration the murders ent bar before ¶ intoxicat- Reddick, 2, extremely that was Lamont ¶ 6-7, bar, and that he knew see id. at leaving that upon ed ¶ Appellant see id. at 5. handgun, caliber carry .45 Green testimony presented should have asserts that counsel also carried witness, generally knew Green from another who armed, he when was handgun, Appellant, while a .45 caliber of Terrance see Declaration weapon, a .38 caliber carried ¶ 8, had Broadwater, previous- that Tancemore and Green ¶ Finally, at 7. together, see id. committed armed robberies ly night a bar on the patron contends that that: testified killings would have Woody’s, Greg got [Tancemore] after I long 3. ... Not the other men. short and other One was with two walked rear of while, to the guy After a the short walked tall. was men The other two in the bathroom. the bar and went of the bar. near the front stayed from a lot of commotion could hear you 4. All of a sudden I had turned guy the short went. the rear of the bar where it something, at the bar shout guy and heard a around shot, got officer at the bar who police out to be the turned out standing pulled at the front guy and the other Greg I heard the at him. As soon as shooting and started guns bar, floor. to the shots, dropped I like else everyone commotion, I but am there a lot very It dark and standing near guy I and the tall Greg sure that saw very officer. police him shoot at the of the bar run to the back guy I the short who went 5. saw I did not see him shoot door of the bar. out the front or the woman. cop ¶ 1998). Moss, This (Sept. 3-5 of Therion
Declaration he identified had explained also have witness would
441 as “the Appellant guy” upon meeting jail. short him in See id. ¶at 8. maintains that trial counsel’s failure to make a
reasonable effort to contact these witnesses was not the result of any strategy prejudiced his defense because the pres- entation of such testimony would have cast doubt on the case, as, Commonwealth’s of the theory particularly in Appel- view, lant’s the descriptions of the second shooter elicited at trial could easily applied have to the ownership Green and handgun Further, .45 caliber vigorously contested. contends the statements of these witnesses proffered contradict evidence at trial and therefore presented question would have of credibility for jury to resolve. See Commonwealth v. Spotz, 552 Pa. 499, 510, (1998). 580, 716 A.2d 585 Appellant asserts that appellate counsel’s failure to raise this on appeal issue direct also the result of ineffective assistance.
To demonstrate arguable merit his underlying claim that his trial counsel was ineffective failing present witnesses, additional Appellant must establish “the existence witnesses, of and the availability of the counsel’s actual aware ness, know, or duty witnesses, of the willingness of the ability witnesses to cooperate and appear on the defen dant’s behalf necessity the proposed testimony in order to avoid prejudice.” 1, Commonwealth v. Spotz, 587 Pa. 48, 1191, (2006) 896 A.2d 1219 (quoting Commonwealth v. 618, Whitney, (1998)). 550 Pa. 708 A.2d 480 More over, Appellant must show how the uncalled witnesses’ testi mony would have been beneficial under the circumstances of Chmiel, the case. See 547, 622, Commonwealth v. 585 Pa. 889 (2005) A.2d (citing Commonwealth v. Beasley, 544 Pa. 554, 566, (1996)); Auker, A.2d Commonwealth v. (1996). Because we conclude that Appellant has not prejudice established arising out of the absence testimony witnesses’ or that such evidence would defense, have been beneficial to his if even believed, we find no error in the PCRA court’s decision to dismiss this claim. con-
First, testimony Appellant’s related to any proposed only of the murders would night of alcohol on the sumption a diminished Appellant pursued had have been beneficial trial, which, as intoxication defense at voluntary capacity above, failing not ineffective for counsel was developed testimony asserting trial in view present, Further, concerning the crime. the evidence innocence of *33 a .45 caliber carry was known Appellant whether Green testimony presented been cumulative of handgun have would 222-24, trial, 7, 1991, (reflecting at 234-35 at see N.T. October handgun, carried a .45 caliber while that Green testimony event, .38), and, identify does not any carried a Appellant on the person that carried either weapon as any particular trial explained, this has killings. of the As Court night to call a failing not be found ineffective for witness counsel will be cumulative. See Commonwealth testimony whose would (2001). Meadows, 344, 359, A.2d Moreover, involve- possible none of the evidence Green’s in his PCRA proffered by Appellant ment in the murders the presentation contradicts Commonwealth’s petition directly had the fact that Tancemore Green Significantly, at trial. if as together, accepted robberies even committed previously true, not on this Appellant involved imply does occasion, proposed as another witness would have particularly in the of both Tancemore company left Appellant testified ¶ Declaration, 7, himself Green, Appellant see Reddick of the night at the bar on the admitted that he had been murders, 7, 1991, Similarly, at N.T. 81-82. see October that he did not see indicating Appellant of a statement witness demonstrate that did Appellant at the bar does not shooting rather, indication that any in the absence weapon; not fire a it uninterrupted, simply the witness’s view make an observation. In did not such reflects that witness court addition, and the PCRA as both the Commonwealth im- noted, could have been testimony the witnesses robberies, their convictions for several peached prior Gibson, Term, January No. offense. See crimen falsi Thus, (1/8/2001); Brief for at 54. Appellee at slip op. trial, considering presented including Appel- evidence at lant’s statement admitting participation the detectives and the testimony eyewitnesses murders of several posi- see, identifying one of tively perpetrators, as 3, 1991, 124-25; e.g., 116-17, N.T. at October N.T. October 48; 53-54, N.T. October we conclude that claim, the PCRA court did not err in this dismissing despite the evidentiary proffer.
G. Ballistics Evidence Appellant next contends that trial counsel was ineffec for failing tive to challenge “ballistics” evidence introduced at trial. Appellant argues that such evidence was inconclusive and, if effectively challenged, could have raised reasonable as Appellant’s doubt In guilt. regard, Appellant as serts that the trial testimony established that three weapons had been fired at millimeter, the bar —a nine a .45 caliber and Officer Duke’s pistol that no one testified definitively —and that Appellant possessed the .45 caliber on handgun night of the uncertainties, murders. Given these Appellant argues that trial counsel’s admitted failure to obtain a copy *34 report,” 3, 1991, “ballistics see N.T. October at and retain an expert, as well as object counsel’s failure to to testimony indicating that one bullet could not be linked to a particular weapon due to head, its passage through someone’s see N.T. 4, 1991, 179-80, October at could not be the result of a reasonable strategy prejudiced and Appellant. Because this claim not raised on direct appeal, also Appellant asserts appellate that counsel rendered ineffective assistance.
As the observes, Commonwealth Appellant’s arguments are premised upon an inaccurate reading the record. The “ballistics report” was, to Appellant fact, which refers in a Mobile Crime Detection report, listing service items recovered scene, at the items, describing such and including photographs 3, 1991, the scene.18 See N.T. October Moreover, at 179. Commonwealth, According 18. to the the Mobile Crime Detection Unit gathers Instead, perform any evidence but testing. does not ballistics reported the results of such by expert, tests are a ballistics a function copy report, trial counsel a which had requested when recollection, prosecutor to the been used refresh a witness’ already a been that of the document had explained copy addition, In the to the defense. See id. record provided that, contrary asser- the conclusion supports tions, night fired on the had been at the bar only weapons two murders, millimeter, handgun. a caliber nine a .45 Further, at 172-73. the off-duty N.T. October See a that .45 expressly possessed bouncer testified 3, 1991, 123, and Appel- see N.T. handgun, caliber October statement to the detectives lant does not mention his own a shooting weapon, he admits such see possessing wherein 7, 1991, Finally, at 54. the N.T. October Commonwealth’s bullets expert ballistics testified that .45 caliber from the fired from cartridge casings recovered scene were that N.T. October Appellant. was traceable See pistol 4,1991, at 183-92. testified that
Although Appellant is correct one witness head, passed through person’s a bullet a an event which did occur, by this actually any potential prejudice caused brief mitigated testimony the medical examiner’s remark was only that both had been the arms indicating victims shot at 9-12. Additionally, and chest. See N.T. October fired from the bullet to which this comment referred was a 179-80, millimeter see N.T. October handgun, nine place did not weapon attempt Moreover, the issue at trial was not Appellant’s possession. wounds, rather physical location of the victims’ but who instance, shots first question fired the cannot answer. also does not report referenced trial further challenge report how counsel’s specify the outcome of trial. likely would have altered H. to Locate Continuance a Witness *35 that the trial Appellant argues denying court erred witness, Dr. his for a continuance to locate a Olu request by performed present Officer O’Hara in the case. See N.T. James 4, 1991, at October 162-200.
445 Appellant at trial.19 asserts Fadeyibi, appear who failed key of his confession issue his that the voluntariness was defense; testified at trial that Appellant that several witnesses Fadey- his and that Dr. injured arraignment; had at appeared ibi, intern the Defender Associa- legal employed by who arraign- at his Philadelphia represented Appellant tion of ment, concerning his suppression hearing testified court did not Appellant’s injuries. observations of The PCRA claim, concluding consider the merits of this that it had been 9544(a), § see 42 previously litigated appeal, on direct Pa.C.S. that not such limita- observing could overcome by presenting support previ- tion new theories relief to his Senk, claim. See 496 Pa. ously litigated 630, 635-636, 1218, (1981); 437 A.2d see also Common- Peterkin, 455, 460-61, 121, 649 A.2d wealth v. Pa. (“[P]ost-conviction (1994) previously litigated review claims on cannot be obtained assistance appeal by alleging ineffective counsel and theories of relief to prior presenting new claims.”). litigated Relying on Common- support previously Miller, 592, wealth v. 519 n. 746 A.2d 602 n. 9 (2000), however, Appellant argues that this issue cannot be litigated, previously deemed as he has set forth previously now on unchallenged evidence this Court did consider Further, appeal. appellate direct maintains that ineffective, counsel’s of this issue as counsel presentation failed to placed Appellant’s include “evidence would have context,” Brief Appellant including claim see provided declarations to the PCRA court.
This has determined that recently Court ineffective underly- assistance of counsel raises a claim distinct from the error, ing allegations given of trial court its basis in Sixth Collins, principles. Amendment See Commonwealth v. 60-61, (2005). In present Pa. matter, Appellant challenged on direct review the trial court’s grant Fadeyibi, refusal to him a continuance to locate Dr. underlying present same claim assertion of deficient stew- Although proper spelling Fadeyibi’s appears 19. of Dr. name to be in presented question, we will use the version most often. *36 in this
ardship. Appellate
arguments
regard, though
counsel’s
brief,
Fadeyibi’s
testimony
Dr.
and the
prior
centered around
necessity
testify concerning
of
a neutral witness
having
injured appearance
arraignment. Although Appellant’s
at his
contentions,
on
arguments
Appellant
focus
similar
also
present
ineffectiveness,
counsel’s
ad-
allegations
thereby
includes
of
may
a
claim that
be
on its merits.
vancing
distinct
reviewed
claim, however,
argu-
ineffectiveness
fails on the
on
appeal,
able merit
reasons noted
direct
prong
an
of
for the trial
namely, that it was not
abuse
discretion
a continuance to locate Dr.
deny Appellant
Fadeyibi,
court to
testimony
as his
have been cumulative of the
testimony would
Gibson,
90-91,
other
See
547 Pa. at
five
witnesses.
Collins,
1161-62;
A.2d at
see also
I. Police Presence
that the
of numerous uni
Appellant argues
presence
police
formed
officers
the courtroom and
areas
surrounding
during
guilt
penalty phases
of his trial created an
thereby
him of a
inherently prejudicial atmosphere
depriving
560, 570-71,
Flynn,
fair trial. See Holbrook v.
475 U.S.
(1986) (“We
1340, 1347,
In response, the Commonwealth observes that courts must Contakos, be to the open public, see Commonwealth v. 340, 343, (1982); 579 Richmond v. Newspapers 555, 573, Virginia, 2814, 2825, 448 U.S. 100 S.Ct. 65 L.Ed.2d (1980), 973 police and that are expected present to be during the trial of officer, one accused of murdering a see fellow (7th Cir.1995) Smith v. Farley, F.3d (noting that “if kill you policemen crime, put and are on trial for the [sic] you must the expect courtroom police audience include men”). The Commonwealth further that a explains courtroom condition not will inherently prejudice right a defendant’s to a fair trial unless it is demonstrated that “an unacceptable risk presented of impermissible coming factors into play.” Hol-
brook,
at 1346-47
Estelle
(quoting
106 S.Ct.
475 U.S.
1691, 1693,
L.Ed.2d
Williams,
96 S.Ct.
425 U.S.
(1976)).
that there is no
emphasizes
The Commonwealth
officers who
police
the number of uniformed
evidence
no
that those officers
trial and
indication
Appellant’s
attended
addition,
In
fashion.
proceedings
any
disrupted
Norris,
the situation in that
as
distinguishes
buttons with
words
wearing
spectators
case involved
impliedly
court
believed
Against Rape,” which
“Women
crime
he was
with which
accused the defendant.
Thus,
Norris,
the Common-
N.T. October at 98-99 (closing arguments defense counsel). talked about the offi- presence police
[Defense counsel] cers here and none of those are here people they because be, you have to and he submits to there is a reason for their Well, presence here. I submit to you they are here because killed, a fellow officer was much the same way persons any particular from an com- profession affinity, who have in radeship with each other would appear circumstances such as this. This does not come close to the number of persons present at his funeral but that is all the room will hold, they are here they because care.
But the I thing really say want about that is this: This case exists you before and Mr. he now Gaskins said what here, said about an angle why we are because Officer Dukes has been referred to time and time and time again as Dukes, Officer but he is a I being human be here would case, were it not Dukes Officer involved this if only case, Vernae Nixon were involved because she is a person too. And it is a tragedy that Mr. said Gaskins nothing about her.
N.T. October at (closing 131-32 arguments prosecu- tor). references, These brief tempered by the assistant dis- trict attorney’s statement that the case would still be prosecut- killed, ed if no police officer had been see id. at do not create an risk unacceptable jury would consider impermissible factors in reaching its verdict and sentence. Holbrook, See 475 U.S. S.Ct. 1346-47. More- over, the proffered by declarations Appellant, from his friends members, family do establish that the jury was intimidated police unknown number of present officers in the courtroom. The defense investigator, for example, states that packed by courtroom was police “[t]he officers trial,” throughout but that only concedes some were *39 ¶ Declaration, uniform. Further, See Shabazz 10. several proffered declarations by Appellant indicated that the police 450 against prosecution of the make noises favor
would of the defense, any portion has not identified but these statements. See Shabazz substantiate record that would ¶ ¶ 10; Declaration, Dec- Declaration, 11; Williamson Johnson ¶ ¶ Declaration, Declaration, 6-7; laration, 11; Gibson Bryant ¶ 15.20 to the addition, analogous to be more
In
we find Smith
Smith,
In
the Seventh Circuit
matter than Norris.
present
reference to the
effect of a prosecutor’s
addressed the
directly
and,
recognizing
potential
officers
presence
police
concluded that brief
spectators,
such
posed by
intimidation
not deny
number of officers did
and an unknown
statements
Smith,
451 Hill, (S.C. trial); denied a fair v. 501 126 State S.E.2d 1998) (“[WJithout more than the mere assertion that anything courtroom, officers in the cannot find present six were we has inherent appellant any prejudice.”). Accordingly, shown correctly the PCRA court determined that this was not a that he Appellant circumstance which demonstrated trial, his prejudiced by officers’ attendance at his claim fails. ineffectiveness Fingerprints
J.
Appellant argues
destroyed
that the Commonwealth
forensic
in the form of
potentially
finger
favorable
evidence
on the
murder
prints
alleged
weapon
Appel
violation
lant’s
to
right
process.
Youngblood,
due
See Arizona v.
488
(1988).
51, 57,
333, 337,
U.S.
109 S.Ct.
We PCRA court that is not claim, entitled to relief on this proffer as his does not demon- strate bad faith on the part police, showing required to obtain relief under Youngblood. Youngblood, See U.S. (“We at 109 S.Ct. at therefore hold that unless a criminal defendant can show bad faith on the part failure police, preserve to useful potentially evidence does not law.”). constitute a denial of due process Significantly, Appellant has not attempted fingerprint establish that existed, confining evidence instead to mere argument assertions that his fingerprints present own were not on the fingerprints another person’s that possibility and the
weapon Fisher, 544, 549, 540 U.S. Illinois be discovered. would Cf. curiam) (2004) (per 157 L.Ed.2d 124 S.Ct. applies requirement bad faith Youngblood’s that (emphasizing useful”). Further, best, is, potentially “at to evidence not consti that the are police recognized Court has Supreme forensic tests on evi specific tutionally required perform 59, 109 at S.Ct. Youngblood, U.S. dence collected. See not con testing was fingerprint the lack of Notably, 338. trial, argue and he free from cealed id. exculpatory evidence. such tests would have revealed Cf. *41 (“The than here no different situation is at 109 at 338 S.Ct. observa driving police that rests on for drunken prosecution a fact alone; to to the finder of argue the is free tion defendant but the might exculpatory, test have been breathalyzer that a any duty perform to not a constitutional police do have tests.”). particular addition, correct that Small concerned
In
while
communications
create a record of verbal
the
failure to
police’s
preserve
than the failure to
rather
witnesses
various
a distinction
evidence,
that such
do not believe
physical
we
Small,
deter
In
this Court
inapplicable.
that case
renders
in a
not demonstrate bad faith
could
mined that the defendant
the allegedly
no indication that
there was
situation where
existed,
to
the
had no reason
police
evidence
unpreserved
conversations,
potential
and the
use of such
of the future
know
before it
apparent
not
of the evidence was
exculpatory value
Small,
441-42,
Pa. at
destroyed.
lost or
See
matter,
the
the
indicates that
In the
record
present
at 676.
the murders
days after
question
in
was located two
handgun
in a
clothing,
some
bureau
bag,
underneath
paper
inside
had
hidden
previously
that
apartment,
Green’s
4, 1991, at
N.T. October
the
under Green’s mattress. See
gun
of the
7, 1991,
recovery
at 53-54.
130-31;
Upon
N.T. October
weapon
that
itself
known
police may
have
weapon,
trial,
but the value
be used as evidence
would
not have been
present, may
been
any fingerprints,
they
had
of the
light
passage
immediately apparent particularly
days’
killings.
important,
time since the
More
it is not
several
likely
anticipated
any fingerprints
that
that
police
on the
been
handgun
exculpatory.
were discovered
would have
Small,
(citing
See
L.Ed.2d 413 for the that no constitutional proposition duty preserve “might to evidence arises unless the evidence be role in the expected play significant suspect’s defense” an “possess[es] exculpatory apparent value that was be Thus, fore the destroyed”). although may evidence was it negligent police, believing have been for the that the weapon murders, had been used to have failed to preserve conducted, fingerprint evidence such that tests could be these alone, circumstances and absent more than Appellant’s asser tions, requisite do demonstrate the bad faith on the part the police. Youngblood, 488 U.S. at S.Ct. Cf. there no (concluding suggestion of bad faith and noting that failure police refrigerate “[t]he clothing and to tests on the perform samples semen can at worst be described as negligent”). Jury
K.
Instructions
Appellant first contends that he is
to a
entitled
new
because,
trial
in its
charge
jury
on the
element
*42
intent,
specific
the trial court
the
relieved
of
its burden to prove every element of first-degree murder
doubt,
beyond a reasonable
in violation of the Fourteenth
Amendment Due Process Clause. See In re Winship, 397
358, 364,
1068, 1073,
(1970);
U.S.
90 S.Ct.
(1998). challenged The instruction reads:
First degree murder is a murder in which the killer has the specific intent to kill. You may find the defendant guilty first if degree you murder are satisfied that following the three elements have been proven beyond a reasonable doubt:
First, that Frederick Dukes and Yernae Nixon are dead. killed Frederick Dukes and
Second, the defendant that Nixon. Vernae intent the third, specific that the defendant did so with
And to kill and malice. with kill, fully to if he has formed the intent specific
A has person intention. As kill is conscious of own the intent to indicates, a of a killing person of malice earlier definition my killing intent to kill is a specific has the by person a who malice, that it is circumstances also without provided with manslaughter. Stated voluntary the reducing killing to kill if it is intent killing specific is with differently, willful, premeditated. deliberate kill, need- including premeditation intent to The specific murder, or require planning does not degree ed for first time. It can length or thought any particular previous is that there be time necessary All that is quickly. occur fully can and does form an so that the defendant enough intention. kill and conscious of that intent to the specific the defendant had deciding When whether evidence, kill, consider all of the you intent should circum- attending and conduct and the his words including you of mind. If believe that may show his state stances on a vital intentionally deadly weapon used the defendant that as an item body, you may regard part victim’s choose, if you may, you evidence from which circumstantial had the intent to kill. specific infer the defendant that, by asserts at 158-60. N.T. October encompass murder first-degree charge combining victims, jury allowed to convict murder of both of both Dukes first-degree murder Officer kill had the intent to specific Nixon if it found that he and Ms. argues, compounded, Appellant either This defect is victim. the distinction adequately explain the court’s failure to see id. at 172 liability conspiracy, accomplice between (“He or promoting if the intent of accomplice is an crime, solicits, commands, he commission of facilitating it, aids, to commit or he person the other encourages, requests person planning to aid the other attempts to aid agrees
455 it.”), committing the court’s instruction on conspira- murder, commit cy robbery conspiracy to but not to commit (“In at see id. 169 order to find the guilty defendant to conspiracy robbery, you initially commit must be satisfied the two elements of a been conspiracy proven have ”). a beyond reasonable doubt . .. Appellant further asserts that trial counsel failing object was ineffective for to these instructions and that counsel appellate was ineffective failing to raise the claim on direct appeal.
Jury whole, to be instructions are evaluated as a see Hawkins, 310, 326, Commonwealth v. 567 Pa. (2001), and the trial possesses court broad discretion instructions, such
phrasing long so as the given directions as “clearly, adequately, law, and accurately” reflect the see id. Prosdocimo, (citing 147, 150, Commonwealth v. (1990)). A.2d Viewing challenged charge in standard, light of this agree we court that the PCRA instruction accurately jurors apprised applicable law did not imply that a finding specific intent to kill one victim would suffice to convict first-degree murder of both victims. Notably, when to the referring intent, element specific the trial court the singular utilized form of certain important words. See N.T. October (“a killing of a person by person specific who has the added)); intent to MU”(emphasis id. at 159-60 (“intentionally used a deadly weapon on a part vital of the victim’s body” added)). (emphasis This Court has not trial required courts to provide essentially duplicate jury instructions on the same victims, offense for separate and the given instructions in the present matter sufficiently informed the jury of each element necessary return a first-degree verdict of murder with respect to each victim. argues next that trial counsel was ineffec for failing
tive to request jury instruction directing police statement to the only could be considered him if against given Because, it had been voluntarily. Pennsylvania under law, defendants right present have the concerning evidence any trial, voluntariness of statements police made to the *44 to consider the is not jury permitted that a asserts indepen it makes an and until unless
defendant’s statement Com voluntary. See such confession was finding dent 1172, 577, 591, A.2d Pa. 370 Cunningham, 471 monwealth v. (1977) (“[T]he to introduce evi permitted is defendant 1179 challenged a the relating to voluntariness dence at trial the it not assess may confronted jury a is so statement. When first until it to the evidence given to be evidentiary weight that the confession was volun finding independent makes an Coach, 389, 394, Pa. 370 made.”); 471 v. tarily (1977) (“The is properly 358, issue voluntariness A.2d 361 trial issue for is a proper court and also suppression before a the trial cannot consider factfinder at factfinder. The that it determines was factually if he confession as evidence defendant.”). by the involuntarily given his in by Appellant support The cases referenced two jury a a mandate that not stand broad do argument of a defendant’s state concerning voluntariness instruction such evidence every in case where given must be ment Indeed, judge’s a trial de Cunningham involved presented. to certain evidence regard relevancy termination of that his state introduce to establish sought to the defendant Pa. at 370 involuntary. Cunningham, See ment was circumstances that evidence of coercive (holding at A.2d irrelevant properly deemed a statement was surrounding prior had been the defendant challenged by the statement where Further, although Court illegality”). of any prior “purged give to the failure to trial due new Coach awarded jury’s instruction, involved the that instruction jury requested the defen unnecessary delay between consideration assessment of as a factor its arraignment dant’s arrest Coach, Pa. at of his confession. See the voluntariness . 396-97, at 362 370 A.2d that, court event, clear as the PCRA it is also any In arising concluded, prejudice has not demonstrated The statement instruction. voluntary the absence of a out of statement that his presentation purport Appellant’s see, 7,1991, at coerced, e.g., it N.T. October untrue as was 99-106, 169-72, 181-82, 193, jurors free to were had credited evidence. they Appellant’s accept proposition in its disregarded Appellant’s if had confession jury Even evidence, the extent of light given of his entirety including eyewitness testi- demonstrating guilt, evidence evidence, see, N.T. e.g., mony physical correlated with 78-79, 116-17, 124-25; 3, 1991, N.T. October at October 53-54, 7, 1991, 12-13, there 48, 192; N.T. October that the outcome of probability is no reasonable Pierce, trial been different. See Commonwealth would have (2001). Prosecutorial Misconduct L. Asserted on prosecutorial raised claims of misconduct Having *45 appeal upon prosecutor’s allegedly improper direct based Gibson, 94-98, Pa. at at closing arguments, see A.2d 1164-65, challenges portions different of those Appellant now First, arguments prosecutor. and additional conduct of “denigrated” Appel that Appellant prosecutor contends witnesses, lant, counsel, certain defense and his constitu rights. Among regard, Appellant tional his claims this attorney improperly the district complains complained to obligation about his to disclose material evidence the de fense, the defense because no disparaging reciprocal obligation exists, N.T., Brief for at 58 (citing see October statement, (reflecting attorney’s at 124-25 the district that, “I during closing arguments, obligation have the I prior all of the documentation have to counsel well providing reciprocal agreement.”)); trial ... but there is no improp his case and erly supported “vouched” for witnesses who witnesses, credibility of adverse see id. personally attacked (on 3, 1991, (citing at 58-59 N.T. October at 115 redirect examination, barmaid, asking you doing “Were best hap could under the circumstances to tell them what you I ask at pened?” you say anything particular and “Did ever all?”)); defense, see id. at 59-60 N.T. denigrated (citing 7, 1991, (cross-examining Appellant at 162 and stat October you “It been were the men’s room ing, must have when [Green], know, You [Appellant] said to doesn’t [Tancemore] here, not shoot he’s out anymore curse so let’s while let’s rob room.”); 3, 1991, the bar he’s in the men’s N.T. while October witness, at 119 the barmaid “Did I come to (asking your ever me?,” bring person referring bar and an obnoxious Gaskins)); jurors Attorney by falsely suggesting misled the hearing had testified at a that he had prior all, been at the scene of the crimes at see id. at 60 never 7, 1991, 134); (citing improper N.T. October introduced evidence, see, victim-impact e.g., (citing id. 60-62 N.T. 3, 1991, at 82 from the (eliciting testimony October barmaid purchased that Officer Dukes had rounds of drinks for other 4, 1991, at 11 patrons shooting); bar before the N.T. October from an rode to the (eliciting testimony hospital individual who Dukes, concerning thoughts with Officer the victim’s about his children, die, cold));21 feelings desire not to wife victim-impact arguments, and made see id. at 61 improper (“[W]hat N.T., e.g., you October at 154 can do (citing, you only must do is deliver the call remaining what [the earth, on upon anyone have and that is a call for victims] justice, because can’t return to sons their father or to a you mother.”)).22 her husband or to a her daughter wife Appellant's prior trial occurred to 1995 amendments to the death- 21. penalty permitting concerning statute evidence the victim and the impact family that the victim's death had on her his or to be admitted 9711(a)(2). hearing. capital sentencing § in fore, See Pa.C.S. There- inapplicable the amendments are here. See Commonwealth v. Fisher, (1996). 264 n. 145 n. 7 *46 passages Appellant’s 22. The relevant brief are cluttered with other example, Appellant complains brief assertions of misconduct. For that prosecutor jurors Appellant going the told the was to follow the off- duty bouncer into the men's room "and neutralize him." See Brief for N.T., 3, 1991, 27-28). (citing Appellant Appellant at 57 October at interprets unsupported this reference as an assertion that However, Appellant’s intended to kill the bouncer. own statement to police gunpoint. was evidence that he intended to hold the bouncer at N.T., 7, 1991, ("[Tjancemore See October at 41 had told me that he guy selling powder point wanted me to hold the the in the bathroom gun.”). prosecutor’s "neutralizing” The reference to the bouncer is consistent with this evidence and is an obvious indication of an intent to kill. Appellant’s It is too cumbersome to address each of brief references of terms, therefore, specific this sort on their those that are not the to the contends that penalty phase, Appellant Relative vengeance,” statement an to prosecutor’s closing “appeal rather than an passion prejudice that was “directed to Brief for understanding Appel- of the facts and the law.” See (3d Lehman, lant at 66 Lesko v. 925 F.2d (citing Cir.1991)). attorney’s pen- asserts the district further references to alty-phase closing improper contained impact improperly conveyed impressions victim about the sentence that the victims’ families id. at 67-69 desired. See 8, 1991, (citing N.T. October at 48 (reflecting prosecutor’s that, jurors comment to the you sympathy, “When think of here[;][w]hen look to the front [Appellant] says people row him, here”); 8, 1991, liked look to the front row N.T. October (“[W]hat at 54 did [Appellant] through will reverberate lives of those century.... who knew victims into the next pain You heard in this courtroom yesterday; you it affected just as it affected some of us. Think if that pain equaled felt pain by persons on December 25 at the think of morgue, N.T., 8, 1991, (“If pain.”); their October at 55 the words husband, existed to give Mrs. Dukes a not a tragic memory, to father, their give sons a not tears on a if holiday, the words to give heartache, existed Mrs. Nixon a I daughter, not would them, upon you call to say they but don’t exist. I call upon Further, you give justice.”)). them Appellant complains that the district attorney jurors told the that it their duty to sentence Appellant to death. See id. at 69 (citing N.T. (“In October at 52-53 long run most difficult you task ever yourself will have will be to face if fail to you do race.”)). your duty jurors as and citizens of the Appel- human lant also asserts that prosecutor improperly jury asked the to consider an aggravating factor that charged, was never namely, Appellant’s decision to kill “because of his desire not responsible be held for his acts.” Brief for 69- Appellant N.T., 8, 1991, 50). 70 (quoting October Additionally, Appellant contends that the prosecutor asked jury consider an asserted lack of remorse on specifically opinion referenced in insufficiently are deemed devel- oped to warrant review.
460 N.T. (citing id. at 70 factor. See aggravating as an
part victims, (“He they 8, 1991, no tears for his 55 shed October in this justice Do anyone. no tears for for himself. Shed are ”)). the district attor Appellant, to According courtroom.... his Fifth Amendment in violated regard comments ney’s self-incrimination, a referencing decision against privilege for the Third Circuit. See Appeals the States Court United Lehman, 925 F.2d (citing Lesko v. at 71 Brief for Cir.1991)). (3d also that 1527, argues could jurors they that instructed the effectively prosecutor feelings if their they disregarded their oaths only uphold 8, 1991, (“Sym at 53 (citing N.T. October See id. sympathy. is a like someone who just they because persons pathy that the claims Finally, Appellant inappropriate.”)). relative is im by circumstances mitigating miseharacterized prosecutor jurors considering Appellant’s from properly preventing N.T., 1991, at 46 (citing id. at 72 October youth. See signifi of birth is a defendant’s date (“Curiously enough, the carry to upon In 1968 I was called cant one to me. June called people you here and know people as were some weapon, not in county, of their the service carry weapon upon also drugs.”)). Appellant the sale of of profit the service ineffective that all counsel were prior includes a brief assertion previously. claims to raise the above failing prose claims of argues The Commonwealth waived. previously litigated are cutorial misconduct and/or af merits, precedent references the Commonwealth On the arguing Com “reasonable latitude” fording prosecutors of “oratorical propriety and the jurors, position monwealth’s See, e.g., penalty. of the death advocating imposition flair” in Pa. 773 A.2d Ligons, v. Commonwealth (2001). Further, that re develops has deliber only prosecutor error occurs where versible finder, the fact objectivity impair ately attempted to create such bias effect be such that the would unavoidable could not jury the defendant hostility toward Miles, a true See Commonwealth render verdict. (1996). to the According Com- monwealth, attorney denigrate Appellant’s the district did not rather, rights, accurately constitutional but noted that simply *48 to before trial. required was disclose witnesses claim, to the regard “vouching” With the Commonwealth references, the context of the develops prosecutor’s which to an response implication by were defense counsel that the only witness remembered facts at the prosecutor’s suggestion. 3, 1991, Brief for at Appellee (citing See 62-63 N.T. October 115-16). 106-07, Responding prosecutor to the claim that the defense, denigrated the the acknowledges Commonwealth that sarcastic, some of the challenged may comments have been argues they but that cannot be reasonably described as a attempt destroy deliberate to of the fact objectivity finder. to the regard misleading question concerning With an assert- prior ed statement Appellant, Commonwealth notes sustained, objection that a defense that the prosecu- and tor on continued without further reference to the question. 134). 7, 1991, (citing Further, See id. at 64 N.T. October Commonwealth, to the according attorney the district present- rather, victim-impact argument, ed no evidence or but merely questions asked testimony recounting which elicited the tragic they events at issue as unfolded. Accord Commonwealth v. Fisher, (1996); 545 Pa. 681 A.2d 147-48 Com- 391, 396-97, v. Story, monwealth 157-58 (1978).
Concerning prosecutor’s arguments, the Commonwealth evidence, that they *49 they do not appropriate
ments
been deemed
where
have
Lester,
v.
amount to an extended tirade. See Commonwealth
669-70,
(1998);
1009
554 Pa.
722 A.2d
Common
(1998).
Clark,
258, 276,
39-40
wealth v.
case, the
observes that
the
In the
Commonwealth
present
The
single passage.
remarks
limited to a
Common
were
Lesko decision as involv
distinguishes
also
the federal
wealth
testify
in
the defendant did not
at the
ing a situation which
thus,
privilege against
his Fifth Amendment
guilt phase, and
Lesko,
see
23. As
jurors
prosecutor
asked the
to consider
defen-
[in
]
[the
The
Lesko
taking
mitigat-
"arrogance”
present
the
stand” to
in
"witness
dant's]
background,
having
ing evidence about his
without even
the "com-
say
sorry
prosecutor
decency
I'm
for what I did.” The
then
mon
to
gist
penalty-phase]
testimony:
parodied
defendant's
"I
[the
the
death,
going
say
you
put me to
but I’m not even
to
don’t want
to
sorry."
I’m
Lesko,
at 1544.
925 F.2d
believe
although
we
Upon
parties’ arguments,
review
comments
ill-advised
prosecutor’s
that some of the
were
agree appropriate advocacy,
the limits of
we
approached
prosecutor’s
central conclusion that
the
the PCRA court’s
context,
conduct,
jury
not so
prejudice
viewed in
did
when
find the
not
a true verdict. We
such
it could
render
obligations
concerning
discovery
remarks
a lack of reciprocal
unnecessary
significant prejudice;
to have been
but without
see
“vouching”
fairly responsive,
the asserted
to have been
Carson,
Pa.
generally Commonwealth
(2006) (“[A]
permitted
A.2d
must be
prosecutor
defense.”);
made
respond
arguments
by
intemperate,
been
denigration
claimed
of the defense
have
in terms of the
trial.
again, minimally prejudicial
but
overall
state-
concerning
The
inaccurate
prosecutor’s
questioning
subject of an
hearing
ment
at a
by Appellant
prior
court, and the
objection
was sustained
the trial
which
to trial
present
developed
challenge
claim is not
terms of a
counsel’s
to seek further instructions or a
failing
conduct
mistrial. As the
the asserted victim-
argues,
course of
impact
during
appropriate
evidence was adduced
the factual
questioning by
attorney developing
the district
offenses,
claim is
again,
circumstances of
of trial counsel
developed
part
terms of a failure on the
to seek
instructions or a mistrial related to the
particularized
testimony
arguments
do find that
which ensued. We
references to the
associat-
containing
victims’ families and his
advo-
justice approached
appropriate
ed calls
the limits of
trial,
cacy
victim-impact
the time of Appellant’s
when
*50
not an
consideration in
sen-
appropriate
capital
evidence was
however,
see
note 21.
direct
this
tencing,
supra
appeal,
On
Court reviewed the full record and determined that
sen-
of
imposed
product
passion, prejudice,
tences
were not the
factor,
rather,
any
arbitrary
upon
other
but
were “based
patrons
killed
compelling
appellant
evidence that
two
Gibson,
bar,”
course of a
in a
With reference remorse, with the Com- agree lack of we cerning Appellant’s distinguishable Lesko decision is that the federal monwealth at the testify guilt phase to on account of decision in the trial, differences duration light of substantial Additionally, in terms respective of the remarks. acridity interests, Pennsylvania decisional Fifth Amendment of the justification prosecutorial authorize law offers “demeanor” remorse, failure to show capital on a defendant’s commentary Fletcher, see, e.g., Commonwealth (2004), remarks chal- facially to the applies which agree the Commonwealth lenged Finally, here. we and do not reasonably at issue limited the comments were amount to a tirade. appeal, of the claims raised on on the above review
Based insofar as it dis- court is affirmed the order PCRA that of ineffective assistance all claims other than missed development, the investigation, counsel associated with respect this mitigating evidence. With presentation vacated, claim, and the court’s order post-conviction development consistent with matter is remanded further permit the issu- relinquished this Jurisdiction is opinion. light develop- order in of the additional dispositive ance of a ment, appeal. further briefing upon any and to ensure in the participate did not
Justice GREENSPAN case. consideration or decision join opinion. TODD Justice BAER and Justice *51 Chief Justice CASTILLE files a concurring opinion joins. which Justice McCAFFERY EAKIN files a concurring Justice and dissenting opinion. CASTILLE, Chief Justice concurring.
I join Saylor’s Mr. Justice Majority Opinion, learned with the of the exception penalty phase claim the upon which Court remands for additional consideration. I concur in Although claim, the result on that I emphasize the outset the follow- (1) ing I points agreement: join the Majority’s explanation why, light disappointing of trial testimony counsel upon remand, this Court’s prior the remaining dispositive (2) issue is prejudice; join Strickland1 I Majority’s the expla- nation of the inconsistency and incompleteness of the Strick- prejudice land analysis conducted the judge; PCRA2 (3) join I the Majority’s mandate to remand the claim for development and specific findings on prejudice. Strickland Respecting point, last I my particular stress agreement with the directive that the PCRA court “is to develop a specific comparison of the mitigation case offered at trial with review,” credited evidence on post-conviction offered object being an explanation of why judge PCRA believes— if he still does so believe following a proper, global prejudice analysis probability there is a reasonable —that result of the penalty hearing here would have been if different only foregone and credited evidence respecting appellant’s character and circumstances had presented. been view,
In my it is a close question whether the claim of Strickland prejudice warrants further as hearing, opposed to summary rejection. My joinder in the remand largely follows out of respect the care and prudence in the Majority’s explanation of the deficiencies in the PCRA analysis; court’s the importance of emphasizing to the courts below their duties of precision in capital appeals; the necessity for disposi- tive order where this might Court otherwise be deadlocked Washington, 1. Strickland v. 466 U.S. 104 S.Ct. 80 L.Ed.2d (1984). Act, 2. Post §§ Conviction Relief 42 Pa.C.S. 9541-9546. I modest because have some separately I capital case. write it Majority’s analysis; is disagreement
points prova- prejudice whether my reservations explain useful offered, ar- here, mitigation evidence given type ble *52 of multi- circumstance aggravating against powerful rayed proper take on the role murders; I have a different and ple Supreme of the U.S. corpus habeas decisions recent federal Strickland, trials conduct- Court, Pennsylvania upon applying announced. those decisions were ed before
I.
for
provide
re-authorizing
separate
States
after
Soon
1970s,
Supreme
in the
the U.S.
Court
capital punishment
concerning
sink” rule
amounts to a “kitchen
innovated what
trials,
rule
imposed
in
and
new
capital
mitigation evidence
are
primarily
For reasons which
now
the States.
upon
interest,
decisions
Court case
Supreme
or historical
academic
adopted
those States
regime
left us
a
where
have
with
(1)
require proof
specific aggrava-
must
capital punishment:
murder-
among first-degree
to distinguish
circumstances
ting
are “the
to those who
capital punishment
in order to limit
ers
(2)
worst,”
categorically preclude
must not
of the
worst
and factfinders from con-
introducing,
from
defendants
capital
relating
in
to the defendant’s
mitigation
evidence
sidering, any
(a
and the circum-
very
category)
or record
broad
character
Oklahoma,
455 U.S.
Eddings
crime.
stances of the
See
(1982)
Lockett v.
(adopting
71 L.Ed.2d
102 S.Ct.
(1978)
The
High
paradigm
Court-dictated
considerations,
“weighing”
competing
volves
seem to be
what
heavily
but in fact
slanted
capital sentencing
twice
favor
First,
first-degree
of a non-death verdict.
not all
murderers
eligible
penalty:
Pennsylvania,
are
for the death
the Com
doubt,
has to
prove, beyond
specific
monwealth
a reasonable
Second,
statutory
if the
aggravator
aggravators.
even
proves the
exceptionality among
defendant’s
murderers,
his brethren of first-degree
guar
the defendant is
anteed an opportunity
jury
for the
all it takes is one
—and
juror
spare him from
to do
having
death
reasons
—to
mitigation.3 The
in the
High Court’s decisional law
wake
paradigm
has been subjected
“tinkering”
to constant
(Justice
coda)4
Blackmun’s
Harry
improvi
famous
or “annual
(Justice Scalia)5
sation”
resulting in
or retooled rules—
new
*53
concerning
eligible,
jury
who is
of
is to
proof,
level
how
told,
weigh
proof,
jury
requirements
what
is
be
of
juror
nullification,
unanimity
juror
versus individual
and so on.
This reality, combined with the
and
of
delays
multiple levels
3. Justice
two-part paradigm
Antonin Scalia has described the
as fol-
lows:
years
over the
imposition
since 1972 this Court has
attached
penalty
quite incompatible
the death
two
of commands: The
sets
confined,
impose
sentencer's
closely
discretion to
death must be
see
238,
2726,
Georgia,
Furman v.
408
92
U.S.
S.Ct.
Callins v.
510 U.S.
114 S.Ct.
127 L.Ed.2d
(1994) (Scalia, J., concurring).
435
Callins,
1145,
(Blackmun, J., dissenting)
4.
exacting
Pennsylvania capital
point
come to the
where
It has even
twenty-five years
trial
penalty
secure a
murderer can
new
on
sitting
court panel,
because a federal
after conviction
to the
review,
trial did not conform
feels that his
habeas
did not
case innovation which
teaching of a non-retroactive
Horn,
v.
at the time of his trial. See Abu-Jamal
exist
(3d Cir.2008)
relief because
(granting penalty phase
F.3d 272
not conform to
sentencing proceeding
did
felt that
panel
108 S.Ct.
Maryland,
in Mills v.
U.S.
future decisions
(1988)
Boyde
California,
and
100 L.Ed.2d
(1990),
because
In assessing prejudice, point Strickland the first worthy note is that there nothing facially is surprising arbitrary about the death sentences imposed this case. distinguished himself among first-degree even murderers. Appellant for the responsible first-degree murder of two victims, an including off-duty police officer to come sought who *55 in the Philadel- employees of the patrons
to the assistance entered that and his confederate with phia appellant bar in on their robbery Eve handguns on Christmas celebrants in killing In two Christmas Eve minds. addition blood, injury or serious to other appellant risked death cold his confederate fired as he and employees patrons bar None of the night. sociologi- bar that shots into crowded that Court to Supreme cal or historical concerns led U.S. is penalty jurisprudence of State death micromanagement its here. implicated returned, at least three
In a a verdict death case where counsel, follow, in that and trial complete review will levels review, addition- always failing present is almost faulted for But the test for Strick- mitigation al or different evidence. prove preju- the defendant to actual requires land prejudice that, dice, lapse, but for counsel’s probability” a “reasonable have been different. proceeding would penalty the result murders and responsible multiple defendant is for Where the great he should have greater carnage, he risked even where fore- premised upon in Strickland relief difficulty securing my As noted in mitigation evidence. gone, supplemental Zook, v. 585 Pa. in responsive opinion (2005): A.2d in the extreme ever to
... I think that it is unrealistic lawyer defense uphill any capital discount the difficult battle where, here, circumstances aggravating as one of faces to commit multiple the fact that his client elected involves This is a mark of distinction first-degree murders. statutory other aggravators. seems different in kind from Thus, mitigation if the additional evidence foregone evidence, “I a bad childhood” I case mere catchall had were sustained his appellant that this could find that doubt Court prove prejudice.2 burden to Moore, (2004) 2. See Commonwealth "may may not be (noting evidence traumatic childhood sympa- mitigating juror might as
perceived
one
see this
reason
as
might
assuring
thy;
defendant]
see it as
his violence
[the
another
him”).
ingrained
permanently
(Castille, J., concurring).
Id. at 1236
case,
mitigation
In this
if the
additional
evidence were
only
I
analysis,
most recent
judge
that cited
the PCRA
notes,
jury
relief
As the
deny
Majority
would
now.
*56
history”
the lines of this “life
apprised
along
evidence
Moreover, assuming
information at the
a
penalty hearing.
center, it
jury
any
highly improbable
reasonable
with
moral
is
appellant’s
to believe that additional evidence of
childhood
alcohol abuse
voluntary drug
circumstances and
would
made a difference in the face of the substantial aggrava
have
465, 127
ting
Landrigan,
factors.
Schriro v.
550 U.S.
S.Ct.
Cf.
1933, 1943-44,
(2007). But,
II.
and role of
Next,
applicability
I
question
turn to
Court,
Supreme
decisions from the U.S.
corpus
federal habeas
Strickland,
the actions of
decided after
which were
applying
for the
claim.
that form the basis
Strickland
counsel here
there has been some
notes that
Majority accurately
The
the effect of such decisions.
concerning
division on
Court
The
concerns
at 1121-22 & n. 8.
division
Majority Op.
1495,
146 L.Ed.2d
v.
529 U.S.
S.Ct.
Taylor,
Williams
(2000)
Smith,
v.
539 U.S.
123 S.Ct.
Wiggins
(2003).
decision, involving
A more recent
As a matter of law—since
court
habeas
review of state
corpus
rendered
federal
upon
Pen-
and Effective Death
the Antiterrorism
convictions under
(“AEDPA”)
fact—
as a matter of
Act of 1996
alty
—and
not
all three times-these cases did
because the
said so
Court
or
federal constitutional rule
any
to establish
new
purport
standard,
existing
rule of Strickland
merely
but
applied
filter of AEDPA.8 This
the deferential
Washington, through
way
argument
operate in some
to diminish
that such factors should
crimes such as these.
constrained, as that case was decided
8. The Strickland Court was not so
adopted.
long
The Court is
before AEDPA's deferential standard
upon collateral
longer
innovate new constitutional
rules
no
free to
review.
course,
AEDPA,
may
an element
a federal court
consider
Of
even under
wrongly
reach
if the state court
failed to
of a
claim de novo
Strickland
See,
merits,
Rompilla,
e.g.,
if
did not address an element.
it
(engaging
in de novo assessment
Strick-
U.S. at
Williams does not alter the standard governing appel- claim; lant’s Supreme ineffectiveness as U.S. Court Williams, in emphasized it is still the Strickland test that governs the penalty-phase prepara- evaluation counsel’s Indeed, performance. tion and if Williams had set forth a standard, or modified Strickland not appellant new would be entitled to its benefit since counsel this case were acting long before Williams was decided. himself fact, implicitly recognizes this as he states elsewhere that Williams not break any ground “did describing new obligations of counsel in a capital Reply case.” Brief Appellant, 3. Accordingly, Williams is relevant to our inqui- ry in the limited sense that it represents example an Supreme application U.S. Court’s of its settled Strickland which, test in factual circumstances according to appellant, are materially indistinguishable from the presented facts here. Bond, (2002).
Commonwealth v.
accurately
Bond
describes
role of habeas cases from the
High Court which consider Strickland claims under AEDPA.
”
Such cases cannot break
ground,
new “Strickland
and can-
impose
Indeed,
upon
new standards
counsel.
in AEDPA
cases, the Court does not even render a pure Strickland-
application holding; it renders an AEDPA holding, which is
not the
thing.
same
The question before the Court under
AEDPA is the reasonableness of the state court’s Strickland
analysis, and not the
performance
counsel
some absolute
(“Rom-
sense. E.g., Rompilla,
rious
objectively
decision,
personal
liking,
not to its
though
520-21,
at
To be a court involving “application” an Strick- High Court decision not to follow the hard-pressed AEDPA be land under would outcome; legal governing but the “standards” High Court’s only cases still derive such performance of counsel’s review (and relevant, clearly-established any other from Strickland in existence at the time Court Supreme of the U.S. precedent acted). by salutary being In commanded counsel addition review, limitation corpus federal habeas upon restrictions as- upon contemporaneous focus with Strickland’s comports counsel sessment, condemning to avoid via and its admonition hindsight. The realizes this elemental fact. Court Supreme
The U.S.
clear that “the merits of
defen
[the
made
Court Williams
our
governed by
holding
are
Strick
squarely
claim
dant’s]
land,”
“case-by-case
requires
set forth a test
which
Indeed,
if
at
The 5-4 decision in Rompilla is to similar effect. Justice
Souter’s Majority Opinion recognized that Strickland —not
Wiggins, not
the clearly
Williams —was
established
law
issue; acknowledged that review of the Strickland claim was
by
standard;
circumscribed
the AEDPA
and stressed Strick-
that,
land’s recognition
conduct,
in evaluating counsel’s
“hind-
sight
discounted
pegging inadequacy to
per-
‘counsel’s
spective at the time’ investigative decisions are made.” 545
380-81,
Strickland,
U.S.
125 S.Ct. 2456 (citing
When
Majority says that the “legal standards articu-
lated” Williams and Wiggins “apply” to cases involving
decisions,
trials pre-dating those
respectfully, I do not believe
the statement is strictly accurate. Such a statement is accu-
only
rate
to the extent
“legal
those
precisely parrot
standards”
already
what was
said in Strickland or some other governing
(the
were)
authority
in Pennsylvania,
norms
as it
extant at the
time counsel acted.
Strickland
certainly applies, but
Wiggins
Williams and
only “apply” to the extent
are
they
matter,
or,
as a
again
practical
redundant
Strickland —
indistinguishable
circumstances are
the extent
material
Thus,
decisions.
“application”
from one of
Court’s
High
rule
not establish a
example, Rompilla
general
does
always
the case file
capital
in a
case must
seek
counsel
Rather,
it was
prior
to the defendant’s
convictions.
relating
the court to con-
entirety
circumstances
led
Generally
that counsel’s
was deficient.
performance
clude
*60
then,
AEDPA decisions
Strickland
applying
these
speaking,
they
do
only
to
cases
to
extent that
not
“apply”
concluded
at all
as “ditto” citations.9
really
except
matter
Williams, Wiggins,
in
It
not accidental that the decisions
is
than
much fuller factual discussions
are
Rompilla
involve
decisions.
an
is
approach
found
Court
Such
usually
High
limited
that
at
byproduct
an
of the
review
issue
inevitable
it
to note that
enough
AEDPA. For our
purposes,
under
are not
identical to
remotely
the factual circumstances here
cases,
three
are not
any
those
and we
at
presented
to condemn
extrapolate
to
an extension
Strickland
liberty
that
retroactively.
agree
Majority
counsel
I
with
counsel’s
non-investigation,
no good
on remand to a
for
confession
reason,
standard-because it
performance
fails
Strickland
Strickland, not
it does
comply
does not
because
I agree
later case
And
with some other or
“standard.”
comply
remaining, controlling question
is prejudice.10
that
opinion.
joins
Justice McCAFFERY
course,
though "inapplicable,”
could
9.
even
the later cases
be
Of
sense,
i.e.,
amorphous
revealing
significant
as
what
deemed
in some
ever-shifting High
majorities
mean.
Court
construe Strickland to
But
speculation
advance the concrete tasks this Court faces.
such
does not
I
that
and later
to American Bar
10.
realize
Strickland
cases refer
guides
evaluating
Association-promulgated
as
the reason-
standards
for
attorney
investigations.
respecting mitigation
performance
ableness of
387,
Rompilla,
(quoting Wiggins,
545
at
Although claims of trial counsel’s raised ineffectiveness waived, the first time in a are no petition longer PCRA Grant, 726, (2002), 572 Pa. 813 A.2d does not here holding apply Appellant’s because direct appeal prior concluded Grant. See Commonwealth v. (2007). In Washington, pre- 592 Pa. 927 A.2d cases, allegations trial counsel’s ineffectiveness are Grant if are not raised in they post-trial waived motions direct Id., 9544(b); appeal § at 594 proceedings. (citing Pa.C.S. ’Amato, D Commonwealth v.
(2004)). ineffectiveness claims therefore have framework, analyzed pre-Grant be under the the PCRA where *61 only appeal court can review direct counsel’s ineffectiveness. ineffectiveness, Appellant argue layer Id. must each on all three of the ineffectiveness prongs standard. Id.
In
questions presented,
his statement of
includes
that all
boilerplate language
prior counsel were ineffective.
Thus,
Brief, at
he met
Appellant’s
1.
his
of pleading
burden
direct
counsel’s
appeal
failing
ineffectiveness
to raise the
387,
([T]he
up
peoples purse, offering necessarily voice or one which does not experience account for the views of all with front-line in these matters. 478 v. counsel’s ineffectiveness. See Commonwealth
issue of trial (2003). 651, However, Rush, 3, A.2d 656 Appel- 838 as to direct counsel’s present argument appeal lant must also each of the three ineffec- developing deficient representation, at has Washington, 595. satisfied prongs. tiveness direct counsel’s failure to regarding appeal that requirement regarding investigation choices Attorney Gaskins’ appeal Brief, mitigation Appellant’s of certain evidence. presentation at 44.
Here, it is “debatable” trial majority determines which Gaskins, counsel, be Attorney Attorney Ciccone or should ineffectiveness, only but states that issue is attributed with 425, inquiry. Majority Op., collateral to our However, inquiry 1124. issue is central to our since this case; had is a the conduct Gaskins and Ciccone pre-Grant raised “numerous appeal. Appellant to be raised on direct trial of ineffective assistance of counsel direct [on claims Gibson, Pa. A.2d v. appeal].” Commonwealth (1997). 1152, 1165 This Court found trial counsel effective. Id., the conduct of direct Only appeal at 1165-69. petition. in the instant PCRA counsel is reviewable case, in this Supreme Since our remand United States Quarterman, —, in Abdul-Kabir v. 550 U.S. Court (2007), L.Ed.2d 585 addressed an issue S.Ct. here, dissenting is not identical to the issue but justices summaries of the nature of inef- provided persuasive concerning mitigation law evidence. Justice Scalia fectiveness opined: impetuousness one can that “the and reckless-
While believe subside,” can may younger years ness that dominate Texas, 509 U.S. 113 S.Ct. [Johnson (1993)], can that a person L.Ed.2d 290 one also believe who younger years fundamentally depraved, kills even a life of crime. itself and more violent Johnson prone denying despite relief “the explicitly recognized point, *62 juror youth that a view the evidence of as might fact mitigating.” as aggravating, opposed [Id.].
Id., (Scalia, J., dissenting).1 at Scalia, the belief by disagree As articulated I Justice that of defendants’ at the introducing negative aspects lives Majori penalty phase se beneficial for defendants. See per at 423-24 n. at 1123 n. 11. some ty Op., A.2d While cases call for of mental and other presentation considerations evidence, as negative aspects mitigation may similar evidence at other times hurt a cause. The decision is for defendant’s defense and if basis for the judgment, counsel’s a reasonable exists, decision our does not us to second- jurisprudence allow it on area guess appeal. Sentencing counsel’s conduct is best on a the traditional case-by-case reviewed basis under inquiry deferring ineffectiveness to the but often without general, impracticable of thoughts scholarly writers.
Regarding
prejudice prong,
majority
again
remands
to the PCRA court
if there is a
determine
reasonable
probability Appellant’s sentence
been different
if
would have
life,
presented
Gaskins
negative aspects
of
includ-
ing mental health mitigation,
positive
instead of the
aspects
422-24,
presented. Majority
were
951 A.2d at
Op.,
1122-23. Since there are conflicting
pre-
views on whether
Regarding
jury
concerning mitigation
1.
nature
instructions
evi-
dence,
persuasively
Chief
opined:
Justice Roberts
give
claiming
We
sharply
ourselves far too much credit in
that our
divided, ebbing
flowing
gave
decisions
this area
rise to
"clearly
clearly
established” federal law.
If the law were indeed
established
our decisions “as of the
time
the relevant state-court
decision,”
Taylor,
Williams v.
529 U.S.
120 S.Ct.
(2000),
L.Ed.2d 389 ...
it should not take the Court more than a
pages
analysis
concurring,
dozen
plurality,
of close
and even
dissenting opinions
explain
"clearly
what that
established” law
cases,
precedents
was.... When the state courts considered these
our
law,
provide
"clearly
did not
them with
established”
but instead a
divided,
dog’s
conflicting,
ever-changing analyses.
breakfast of
matter,
they
That is how the Justices on this Court viewed the
as
concurrence,
being
majority, plurality,
shifted from
in the
or dissent
case, repeatedly lamenting
colleagues
from case to
failure
their
path.
may
today,
to follow a consistent
the law
be
Whatever
ruling
always
Court’s
'twas
so—and that state courts were
it, Williams,
"objectively
supra,
unreasonable” not to know
utterly
senting mitigation
Appellant’s
of
sentencing, and some
a defendant at
helps
utes
at sen-
troubled childhood
to his
already testified
witnesses
1122,
422,
I do not see
951 A.2d at
Majority
at
tencing,
Op.,
here
imposed
would
the sentence
reasonably probable
it is
how
evidence was
mitigation
if
negative
such
have been different
for rely-
this opinion
the
criticizes
majority
presented. While
Supreme
United States
from two
dissenting opinions
on
ing
8,
8,
1121 n.
421 n.
951 A.2d at
at
Majority Op.,
opinions,
Court
of
presentation
the notion that
for
majority’s “authority”
for a
beneficial
can be
mitigation
health
evidence
mental
article,
federal
three
is a law review
sentencing
at
defendant
decision—none
decisions,
Illinois state court
and one
court
Majority Op., at
on this Court.
authority
binding
are
which
The
review
1122-23 n. 11.
law
Regarding
or
thorough investigation
counsel has to conduct
ty states
un-
investigations
such
rendering
decisions
make reasonable
(citations
951 A.2d at
Majority Op., at
necessary.
statement,
omitted).
“[Attorney
my dissenting
I noted in
As
the [nega-
admittedly
investigate
present
did not
Gaskins]
life],
[posi-
he
present
but
did
Appellant’s
aspects
tive
J.,
Gibson,
(Eakin,
at
940 A.2d
in detail.”
aspects],
tive
statement).
states,
majority
also
As
dissenting
place
employ
hour”
Gaskins
an
decision
made
“eleventh
conduct.
trial,
yet
complains
now
Gaskins’
of Ciccone before
409-11,
appar-
at 1114-15.
at
951 A.2d
Gaskins
Majority Op.,
court,
the trial
which was
a continuance with
ently requested
Gibson,
J.,
See
At sentencing,
presented
Gaskins
nine witnesses and “tried
extensively to personalize [Ajppellant and not
the jury
leave
only
with
those
negative aspects
extrapolated
his life
during
Gibson,
(Eakin, J.,
the trial.”
A.2d reasonableness of counsel’s deci- sions cannot be upon based the distorting effects of hind- sight.”)). Due entry to his late at Appellant’s request, it was reasonable for Gaskins to focus on exoneration rather than mitigation, and to present Appellant’s positive aspects as he through Thus, did testimony sentencing. extensive at direct appeal counsel did not err in not raising Gaskins’ ineffective- ness in regard this on direct appeal.
The majority’s rationale creates the potential for abuse of
litigation
the
process.
and PCRA
If capital defendants choose
counsel,
make an
hour” replacement
“eleventh
counsel
raised
during
ineffectiveness claims for counsel's conduct
2.
412-15,
guilt phase.
Majority Op.,
See
at
will trial; truncat- mitigation if evidence is investigation capital decision, hard under those despite counsel’s work by ed defendant, counsel’s conduct created circumstances to a meritorious ineffectiveness susceptible should not be claim. majority’s opinion,3 remainder of the join
I
join
majority’s
police
I
conclusion
following exception.
at
Majority Op.,
trial
presence
prejudice Appellant.
did
However,
450-53,
join
I do not
3. On all
ineffectiveness
as
majority’s analysis
interpret
I
of those claims to be a review of
appeal counsel’s conduct.
direct
any
may
a trial
can
other
4. Police officers
attend
as
member
Contakos,
generally
public. See
Commonwealth v.
(1982) (courts open
public);
Newspapers
A.2d
Richmond
(1980)
Virginia, 448
100 S.Ct.
Notes
notes are not see Ligons, Pa. at event, A.2d at in any argues that the challenged comments were appropriately developed with oratorical flair to advance the guilt Commonwealth’s case phase aggravating circumstances or mitigation penal- rebuttal at the latter, ty phase. As to the the Commonwealth asserts that of the many attorney’s district in response statements were the defense strategy calling Appellant’s family and friends testify Further, about his positive attributes. the Common- argues that Appellant’s wealth contentions are based on isolat- that, portions ed of the transcript, when in their viewed full context, confirm that the district attorney consistently focused statutory aggravating circumstances on the four relevant assertion rebuttal. As appropriate mitigation an uncharged aggravator, concerning advancement challenged the context of the contends that Commonwealth it made furtherance statement reveals that defendant committed circumstance statutory aggravating felony. in the of a See Pa.C.S. perpetration while killing 9711(d)(6). Ap The also takes issue with § remarks concern attorney’s criticisms of the district pellant’s statements noting such were ing age mitigator, degree prosecutor to the that the proper, except rele.vant life, trial court sustained a to which the personal discussed his 10, 1991, at 46. N.T. October With objection. defense See concerning Appellant’s to the comments prosecutor’s reference remorse, that such com develops the Commonwealth lack of
at 1128-29. The
notes
majority
Appellant’s
change
decision
appears
original
counsel
“well founded” since
counsel Ciccone
had not conducted a
mitigation investigation. Majority Op.,
circumstances,
425 n.