COMMONWEALTH of Pennsylvania v. Alexander KEATON
45 A.3d 1050
Supreme Court of Pennsylvania
May 30, 2012
Submitted March 24, 2005.
In summary, while I concur in the Majority‘s decision to affirm, under the constraints faced here, I do not join the Opinion insofar as it can be read to foreclose consideration of what constitutes a “public record” in relation to information of a private entity, as that term is used in
Hugh J. Burns, Philadelphia, Amy Zapp, Harrisburg, William G. Young, Philadelphia, for Commonwealth of Pennsylvania.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, MCCAFFERY, ORIE MELVIN, JJ.
Justice EAKIN.
Alexander Keaton appeals from the denial of guilt phase relief under the Post Conviction Relief Act (PCRA),
In December, 1992, Keaton was charged with rape and related offenses stemming from the November, 1992 sexual assault of Nadine S. One month later, the body of Keaton‘s ex-girlfriend, Sherrill Ann Hall, was found. Police questioned Keaton, who was in custody for the attack on Nadine S., about Hall‘s death. After waiving his rights, Keaton gave a written statement incriminating himself in the killing, and he was charged with murder. Later that day, police questioned Keaton about the June, 1992 rape of another woman, Michelle B. After waiving his rights, Keaton gave a written statement in which he admitted having oral sex with this victim, but denied assaulting her. He was charged with the rape of Michelle B. and related offenses.
The Commonwealth moved to consolidate the charges for all three victims. Over defense objection, the trial court granted the motion. Prior to trial, Keaton moved to suppress his statements; the motion was denied, and Keaton was tried before a jury and found guilty of first degree murder, rape, and related offenses. At the penalty phase, the Commonwealth sought to prove the following aggravating circumstances: the murder was committed in the perpetration of a felony,
This Court affirmed on direct appeal, and the United States Supreme Court denied certiorari. Keaton v. Pennsylvania, 528 U.S. 1163, 120 S.Ct. 1180, 145 L.Ed.2d 1087 (2000). Keaton timely filed a pro se PCRA petition and received appointed counsel, who filed an amended petition alleging all prior counsels’ ineffectiveness for not raising numerous guilt and penalty phase issues. The PCRA court held a hearing on the sole issue of trial counsel‘s ineffectiveness for failing to investigate and present mitigating evidence at the penalty phase.3 The PCRA court rejected Keaton‘s guilt phase
Keaton appealed from the denial of his guilt phase issues; the Commonwealth appealed from the grant of a new penalty phase. The PCRA court‘s
Our standard of review is well settled: “In addressing the grant or denial of post-conviction relief, an appellate court will consider whether the PCRA court‘s conclusions are
Keaton raises 13 ineffectiveness claims, an Atkins claim, and claims that the PCRA court erred in denying him discovery and a hearing. To be entitled to relief on an ineffectiveness claim, Keaton must prove the underlying claim is of arguable merit, counsel‘s performance lacked a reasonable basis, and counsel‘s ineffectiveness caused him prejudice. Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 213 (2001); see also Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).4 Prejudice in the context of ineffective assistance of counsel means demonstrating there is a reasonable probability that, but for counsel‘s error, the outcome of the proceeding would have been different. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 332 (1999). This standard is the same in the PCRA context as when ineffectiveness claims are raised on direct review. Id. Failure to establish any prong of the test will defeat an ineffectiveness claim. Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717, 738 n. 23 (2000) (citing Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d 435, 441 (1999) (ordinarily, post-conviction claim of inef
An issue underlying one of Keaton‘s ineffectiveness claims was raised on direct appeal; specifically, we addressed his claim the prosecutor engaged in misconduct when she stated, during the guilt phase closing, that “animals don‘t treat each other the way this defendant treated these young women.” Keaton, at 540. However, Keaton now alleges his counsel‘s ineffectiveness in connection with this issue; therefore, his claim is distinct from that raised on direct appeal and has not been previously litigated. See Commonwealth v. Collins, 585 Pa. 45, 888 A.2d 564, 570, 573 (2005) (term “issue” as used in §§ 9543(a)(3) and 9544(a)(2) “refers to the discrete legal ground that was forwarded on direct appeal and would have entitled the defendant to relief“; ineffectiveness claims must be treated as wholly independent of underlying claim of error).
Regarding waiver, at the time of Keaton‘s trial, direct appeal, and PCRA proceedings, he was required to raise claims based on trial counsel‘s performance at the first opportunity when he had new counsel. See
Pa. 3, 838 A.2d 651 (2003) (holding argument must be presented on each prong regarding appellate counsel‘s ineffectiveness); Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, 1021-22 (2003). “While in a number of instances, our review entails evaluation of the potential merits of waived underlying claims, such assessment is employed solely as a means of determining the viability of extant derivative claims [of appellate counsel‘s ineffectiveness].” Williams, at 300 (citing McGill, at 1024-25 (explaining layered claim of appellate counsel‘s ineffectiveness cannot be sustained where underlying claim of trial counsel‘s ineffectiveness lacks merit)). In his PCRA petition, which was filed before McGill, and appellate brief, which was filed after McGill, Keaton layered his ineffectiveness claims, thereby preserving the issue of appellate counsel‘s ineffectiveness. For the majority of his claims, he used boilerplate language and employed only cursory discussion of the ineffectiveness test‘s latter two prongs pertaining to appellate counsel.
Following McGill, there was uncertainty in cases like Keaton‘s, where the PCRA petition was filed pre-McGill and the appellate brief was filed post-McGill, concerning whether the pleading and proof requirements were met with respect to appellate counsel. We recently spoke to this situation in Commonwealth v. Walker, 613 Pa. 601, 36 A.3d 1 (2011):
In Commonwealth v. Dennis, 597 Pa. 159, 950 A.2d 945 (2008), where the appellant filed his PCRA petition pre-McGill and his appellate brief post-McGill, we stated:
McGill . . . does not save Appellant from the obligation properly to layer his claims before this Court, or from a failure to plead and prove the ineffectiveness of trial counsel sufficiently under Pierce to satisfy the arguable merit prong for an ineffectiveness claim against appellate counsel, any of which will be fatal to his claims. . . .
Id., at 956. However, we note the continuing difficulties in the transitional period following McGill, as the measures outlined there take hold, slowly and erratically, in the lower courts. Indeed, we are still seeing cases, such as the instant one, where the PCRA filings predated McGill, but
the appellate brief was filed post-McGill. We are also seeing post-McGill cases where PCRA courts have failed to allow for amendment, an important safeguard contemplated in the Rules of Criminal Procedure and emphasized in McGill. Given the complexities posed by these layered ineffectiveness claims, we now conclude the better practice is not to reject claims of appellate counsel‘s ineffectiveness on the grounds of inadequate development in the appellate brief if the deficiencies in the brief mirror those in the PCRA pleadings, unless the PCRA court invoked these deficiencies as the basis for its decision and afforded an opportunity to amend. Accordingly, McGill‘s remand procedure will remain an option in cases such as this one, and we will review the underlying claim concerning trial counsel‘s stewardship to determine whether remand for further development of the claim pertaining to appellate counsel is required. As held in McGill and Rush, remand is unnecessary where the appellant has not met his burden of proving the underlying claim of trial counsel‘s ineffectiveness.
Walker detailed the history surrounding “new” direct appeal counsel‘s obligation to investigate and present extra-record claims in the wake of Hubbard, as well as the advent of relaxed waiver on collateral review following our decision in Commonwealth v. DeHart, 539 Pa. 5, 650 A.2d 38, 48 (1994). In short, Hubbard required appellate counsel to raise all claims of trial counsel‘s ineffectiveness (including extra-record ones) on direct appeal, or else such issues were waived on collateral review. DeHart subsequently made relaxed waiver available on collateral review of capital cases; direct appeal counsel could reasonably believe extra-record claims relating to trial counsel‘s stewardship could be addressed as claims of prior counsel‘s ineffectiveness at the collateral stage. As DeHart was decided after direct appellate counsel in Walker filed his brief and the case was argued, he could not reasonably have relied on relaxed waiver when he declined to pursue extra-record claims on direct appeal. See Walker, at 7-8. However, we held appellate counsel could have reasonably
Accordingly, we concluded Walker‘s appellate counsel could have reasonably believed any extra-record claims he did not raise on direct appeal could be raised under this exception on collateral review as claims of prior counsels’ ineffectiveness, and we reviewed Walker‘s extra-record claims as claims of trial counsel‘s ineffectiveness. Id. Thus, in the narrow set of circumstances in a PCRA matter where the record reveals new appellate counsel made a conscious, reasonable decision not to pursue extra-record claims, a subsequent layered ineffectiveness claim will not be dismissed on grounds that appellate counsel acted reasonably. Rather, the very reasonableness of appellate counsel‘s decision is given effect by passing through to the underlying claim of trial counsel‘s ineffectiveness. In short, such claims are not subject to layering. See Walker, at 18-19 (Castille, C.J., concurring).
Here, DeHart was in effect at the time direct appeal counsel was appointed to represent Keaton, February 27, 1995, through the time the appeal was argued before us on October 20, 1998. Thus, the law permitted review of extra-record claims on collateral review under the doctrine of relaxed waiver.6
Appellate counsel‘s affidavit, which was stipulated as evidence at the PCRA hearing, stated he had difficulty obtaining any files or records from trial counsel, and he did not have the resources, as appointed counsel, to conduct an extra-record investigation. It was his understanding that, had he requested such resources, they would not have been made available to him at the direct appeal stage; therefore, he did not request them, instead confining his review to raising all record-based claims he believed had arguable merit. Regarding extra-record claims, he stated he thought such claims were most appropriately left to PCRA proceedings, and thus he expected any extra-record claims pertaining to trial counsel‘s stewardship, such as the failure to investigate and present mental health mitigating evidence, would be addressed on collateral review. See Affidavit of Bernard J. Siegel, Esq., 10/29/02, at 1-2, ¶¶ 3, 5-7.
The record and appellate counsel‘s testimony suggests he performed as effectively as he could, given the circumstances. The record apparently was missing during the course of his appointment,7 he was unable to access information, files, or
Suppression
Keaton claims his right to counsel under the
Keaton argues trial counsel should have moved for suppression of his statements concerning the murder and Michelle B.‘s rape on the grounds they were obtained in violation of his
The
The
Because Keaton was only charged with Nadine S.‘s rape at the time he was questioned regarding the other two crimes, his
[T]he “bring-up” procedure is merely the administrative vehicle through which the movement of a prisoner is facilitated. It, in and of itself, cannot serve as the triggering factor to cause the right to counsel under the
Sixth Amend- ment to attach. . . . [W]hat is of constitutional significance is the purpose for which it is employed and when it is employed. . . . Thus we must focus upon whether the commitment to prosecute had been made prior to any of these periods of questioning.
As Keaton was not charged with Hall‘s murder and Michelle B.‘s rape when he was transported, his
Keaton contends the admission of his statements concerning Hall‘s murder and Michelle B.‘s rape violated his right to counsel in the case regarding Nadine S.‘s rape, as these statements were introduced as substantive evidence to prove Nadine S.‘s rape. However, he provides no case law for the proposition that a lawfully obtained statement concerning one crime cannot be introduced as substantive evidence at a consolidated trial involving additional charges. Keaton‘s right to counsel in the rape case regarding Nadine S. was not violated because he was never questioned about that crime. His claim appears to be that the lawfully obtained statements about Michelle B.‘s rape and Hall‘s murder were transformed into “prior bad acts” evidence because these charges were consolidated for trial with the charge for Nadine S.‘s rape. Had the jury not heard the evidence of the other rape and the murder, it would have been more apt to believe his claim that he had consensual sex with Nadine S. and would have acquitted him of that rape charge.
It is well settled that evidence of other crimes committed by a defendant is generally not admissible to show his criminal propensity; however, such evidence is relevant and admissible to establish the perpetrator‘s identity, or the existence of a common scheme or plan. Commonwealth v. Bronshtein, 547 Pa. 460, 691 A.2d 907, 915 (1997); see
Regarding Keaton‘s claim that the officers’ questioning violated his
In Roberson, the Court expanded Edwards to include reinterrogation on an unrelated crime. Roberson, at 687-88, 108
Keaton contends he invoked his
Keaton further contends trial counsel was ineffective for failing to establish during the suppression hearing and at trial that Keaton was mentally retarded, brain damaged, and suffered from cognitive dysfunction which prevented him from knowingly and voluntarily waiving his Miranda rights. He contends his statements were thus involuntary and inadmissible, and appellate counsel was ineffective for failing to raise this issue on appeal.10
As discussed infra, in addressing Keaton‘s Atkins claim, the PCRA court properly determined Keaton is not mentally retarded; thus, his claim that trial counsel should have presented evidence of his mental retardation is baseless. Regarding his alleged brain damage and cognitive dysfunction, Keaton cites the PCRA testimony of Dr. Jonathan Mack, a neuropsychologist who evaluated him before the PCRA hearing; Dr. Mack stated his testing revealed Keaton was brain damaged, and he diagnosed Keaton with a cognitive disorder. N.T. PCRA Hearing, 11/1/02, at 16-20, 22, 24; N.T. PCRA Hearing, 11/5/02, at 27-29, 61-62.
Although the PCRA court concluded trial counsel should have investigated and presented evidence of Keaton‘s brain damage and cognitive disorders as mitigating evidence at the penalty phase, the same does not hold true for such evidence at the suppression hearing. There was nothing presented by Dr. Mack which suggested Keaton was incapable of understanding his rights or of voluntarily waiving them; the ex-
Guilt Phase
Keaton claims trial and appellate counsel were ineffective for failing to challenge the exclusion for cause of 15 venirepersons who answered affirmatively to the following question on the juror questionnaire: “Do you have any beliefs, philosophical, religious or moral, that would prevent your voting to impose the death penalty in the appropriate case under the facts and under the law?” N.T. Voir Dire, 9/8/94, at 15; see also N.T. Voir Dire, 9/9/94, at 13; N.T. Voir Dire, 9/12/94, at 21. The trial court explained to trial counsel that it was going to use the questionnaire to “excuse the ones out of hand that have one of two things, either hardship or opposition to the death penalty[,]” N.T. Voir Dire, 9/8/94, at 16, and trial counsel agreed to this procedure. Id. Keaton argues this method of excluding potential jurors denied him sufficient latitude to determine whether they could put aside their personal views regarding the death penalty, so as to exclude only those who would automatically vote against it.
“The decision whether to disqualify a juror for the inability to impose a death sentence in a proper case lies in the
The question posed to the venirepersons asked if their beliefs would prevent them from imposing the death penalty, even when it was called for. In the face of an affirmative answer, further query regarding whether they could set aside their beliefs would have been illogical—the word “prevent” implies they could not. In Commonwealth v. Harris, 550 Pa. 92, 703 A.2d 441 (1997), and Commonwealth v. Cox, 556 Pa. 368, 728 A.2d 923 (1999), we addressed voir dire procedures nearly identical to the present one, and observed: “As a trial judge has wide latitude in supervising the manner in which voir dire is conducted, including the power to prevent further voir dire when response to death qualification questions prove that additional inquiry will be fruitless, the trial court [does] not err by dismissing the jurors.” Harris, at 446 (citation omitted). We further stated, “We reject appellant‘s argument that trial counsel should have continued to question the excused jurors. . . . The trial court correctly removed jurors when it found that their views on capital punishment would ‘prevent or substantially impair’ the performance of their duties. . . .” Cox, at 930-31. Thus, we perceive no impropriety in the dismissal of these 15 venirepersons;11 Keaton‘s
Keaton claims he was denied his rights to due process and counsel when the trial court denied his motion for change of court-appointed trial counsel without holding a hearing; he claims appellate counsel was ineffective for failing to raise this issue. Prior to the start of the third day of jury selection, Keaton told the trial court he wished to dismiss court-appointed counsel as his attorney and hire his own lawyer, which he admittedly could not afford to do. Keaton stated he felt trial counsel did not have his interests at heart because he advised Keaton to plead guilty in exchange for a life sentence and failed to provide him with part of the preliminary hearing transcript. Trial counsel responded that he merely conveyed the Commonwealth‘s offer of a life sentence to Keaton, as he was required to do, and had not suggested Keaton enter a plea; counsel also informed the court Keaton was a difficult client. The trial court noted Keaton filed a pro se “petition for withdrawal of counsel” two months prior to trial, which a different judge denied following an in camera hearing. As Keaton‘s contention at trial was the same as this prior argument—counsel would not represent him to the best of counsel‘s ability—and Keaton offered nothing new in support of his allegation, the trial court concluded Keaton had not demonstrated the attorney-client relationship had deteriorated to the point that counsel could not effectively represent him. See N.T. Voir Dire, 9/12/94, at 4-13.
“A motion for change of counsel by a defendant for whom counsel has been appointed shall not be granted except for substantial reasons.”
Keaton claims trial counsel was ineffective for failing to properly investigate and litigate the issue of the time and manner of Hall‘s death. He contends counsel should have secured independent forensic pathology and entomology experts, as well as DNA testing of any available biological evidence. He argues if trial counsel could have demonstrated Hall died late in December, instead of November 1st or 2nd as the Commonwealth theorized, it would have refuted the evidence against him, as he was incarcerated for a different offense on December 19th. He further claims an investigation of biological and physical evidence was necessary to determine the validity of his claim that he and Hall engaged in consensual sexual asphyxiation, and whether Hall had sex with someone other than him immediately prior to her death; he also contends counsel should have looked for others with motive to kill Hall. Keaton notes under Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), trial counsel was entitled to funds to consult with experts and conduct an investigation; he also claims appellate counsel was ineffective
This Court has stated:
When a defendant claims that some sort of expert testimony should have been introduced at trial, the defendant must articulate what evidence was available and identify the witness who was willing to offer such evidence. Further, trial counsel need not introduce expert testimony on his client‘s behalf if he is able effectively to cross-examine prosecution witnesses and elicit helpful testimony.
Commonwealth v. Williams, 537 Pa. 1, 640 A.2d 1251, 1265 (1994) (citation omitted).
Keaton baldly asserts trial counsel should have hired a forensic pathologist and entomologist; he fails to identify such witnesses or articulate what helpful evidence an investigation could have unearthed.13 The medical examiner testified at trial that the advanced state of decomposition in which Hall‘s body was found was consistent with death occurring at the time of her disappearance in early November, see N.T. Trial, 9/14/94, at 48-49; however, on cross-examination, trial counsel was able to elicit the examiner‘s admission that the body was so badly decomposed, he could not determine the exact date of death, which he conceded could have been early December or November. Id., at 53-54. Furthermore, given the fact the ligature around Hall‘s neck was tied so tightly it had to be cut off during the autopsy, the value of expert testimony that the asphyxiation was consensual is dubious. Id., at 28-29, 47. Likewise, the body‘s advanced state of decomposition made it impossible to recover any biological evidence of sexual activity,
Keaton claims trial counsel was ineffective for failing to present character evidence of Keaton‘s reputation for peacefulness and non-violence during the guilt phase. At a side-bar immediately prior to the penalty phase, the trial court noted its incorrect assumption that trial counsel did not present character witnesses because Keaton had a prior record that counsel did not want revealed on cross-examination of these witnesses; upon learning Keaton had no prior record, the court asked counsel if he had discussed presenting character witnesses with Keaton. Trial counsel replied his reason for not presenting them was his concern that four other outstanding rape cases would be introduced as impeachment evidence if he opened the door regarding Keaton‘s peaceful reputation. N.T. Sentencing, 9/22/94, at 14. In ruling on this issue, the PCRA court held because the Commonwealth‘s case was neither weak nor based solely on its witnesses’ credibility, character evidence was not critical to the defense‘s success. PCRA Court Opinion, 9/11/03, at 10 (citing Commonwealth v. Weiss, 530 Pa. 1, 606 A.2d 439, 442 (1992)).
Keaton argues character evidence was critical because the rape cases hinged entirely on the complaining witnesses’ testimony, and the homicide case was based upon the condition in which the victim‘s body was found and on Keaton‘s police statement, which was largely exculpatory.14 Thus, Keaton claims trial counsel‘s failure to present character evidence prejudiced his case. He cites the PCRA testimony and affida-
Initially, we note the PCRA court denied relief on this issue because it concluded the absence of character evidence was not crucial in Keaton‘s case. We disagree; as discussed infra, there was no physical evidence directly linking Keaton to the crimes. Although blood and sperm were found on certain objects at the crime scene, it was only the testimony of one of the rape victims that connected these items to Keaton. Since Keaton admitted to having sex with the murder victim, but argued it was consensual, only the Commonwealth‘s expert‘s testimony rebutted Keaton‘s claim. Thus, credibility was important at Keaton‘s trial, and character evidence would have aided Keaton‘s case. See Commonwealth v. Morgan, 559 Pa. 248, 739 A.2d 1033, 1037 (1999) (citations omitted) (“It is well established that character evidence alone may be sufficient to raise a reasonable doubt and thus justify an acquittal of the charges.“). Therefore, we do not find the PCRA court‘s conclusion to be supported by the record; however, we may affirm on other grounds. See Commonwealth v. Shaw, 494 Pa. 364, 431 A.2d 897, 899 n. 1 (1981) (Supreme Court may affirm trial court‘s decision if result is correct on any ground,
Keaton argues the law does not permit impeachment of a character witness with specific allegations of criminal conduct not resulting in convictions; as Keaton had no prior conviction record, trial counsel need not have feared cross-examination of character witnesses. Keaton relies on Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981), which held character witnesses could not be cross-examined about the defendant‘s prior arrests which had not led to convictions. We reasoned that since an arrest is equally consistent with either guilt or innocence, it “do[es] not carry the conclusive determination of guilt by conviction[,]” Morgan, at 1035 (citing Scott, at 612), and is thus unduly prejudicial if used as impeachment evidence. Scott, at 611-12. Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986), clarified Scott, noting although a character witness could not be cross-examined regarding whether he knew of the defendant‘s arrests for misconduct related to the character trait the witness vouched for, the witness could be cross-examined about his knowledge of particular acts of misconduct not involving arrests. Peterkin, at 382-83, 383 n. 13. Morgan subsequently held character witnesses could not be cross-examined about prior criminal misconduct which had not resulted in arrest; we reasoned it would be illogical to preclude questioning about prior arrests not resulting in conviction but permit questioning about conduct which had not even led to an arrest. Morgan, at 1036; see
As Morgan was decided after Keaton‘s trial, it is inapplicable; the adequacy of trial counsel‘s representation must be assessed in light of the standards in effect at the time it was provided. Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 789, 178 L.Ed.2d 624 (2011); Bobby v. Van Hook, 558 U.S. 4, 130 S.Ct. 13, 16, 175 L.Ed.2d 255 (2009); Common-
Keaton argues the prosecutor engaged in misconduct during the guilt phase opening and closing statements, and direct examination of the two rape victims. He claims trial counsel was ineffective for failing to object or request curative instructions, and appellate counsel was ineffective for failing to raise the issue on direct appeal.
Generally, a prosecutor‘s arguments to the jury are not a basis for the granting of a new trial unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility towards the accused which would prevent them from properly weighing the evidence and rendering a true verdict. Moreover, the prosecution and the defense alike are afforded wide latitude and may employ oratorical flair in arguing to the jury. The arguments advanced must, however, be based upon matters in evidence and/or upon any legitimate inferences that may be drawn from the evidence. Finally, any allegedly improper prosecutorial comments must also be examined within the context of the conduct of defense counsel. If a challenged remark is made in response to the defense‘s closing argument, it will generally be deemed fair response and hence permissible comment. Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79, 110 (1998) (citations omitted); Commonwealth v. Hughes, 581 Pa. 274, 865 A.2d 761, 801 (2004).
Keaton claims the prosecutor improperly injected inadmissible victim impact evidence during opening statements by making the following statement concerning one of the rape victims:
You are going to hear that on June 1st of 1992, Michelle B[.] was married, had four children and was separated from her husband. She had been using crack cocaine and she was not living at home with her husband because of her addiction. You will see that she has since that time cleaned up her act, so-to-speak, and she is at home with her husband,
with her children and she is no longer using drugs. But at that time she was.
N.T. Trial, 9/13/94, at 23 (emphasis added). Keaton also claims the prosecutor continued this improper theme of portraying the victims as mothers and wives by eliciting testimony that Michelle B. was married and had children, and asking whether Nadine S. was married; trial counsel objected to these questions, but did not seek curative instructions after the trial court sustained the objections. See id., at 34; N.T. Trial, 9/19/94, at 5. Keaton also cites the following comment the prosecutor made during the guilt phase closing, concerning the two rape victims:
You certainly saw that Michelle B[.] and Nadine S[.] are no longer on crack.... You saw how they looked today and you saw that they did not look like someone who was presently using and I believe you heard testimony from Michelle B[.] that she was back with her husband and children and that she was not using.
N.T. Trial, 9/20/94, at 54.
Keaton argues these comments elicited sympathy for the victims because they had undergone rehabilitation and one of them was married with children. The PCRA court held the comments were fair response to the defense‘s argument that both victims were unreliable witnesses because they were crack addicts, PCRA Court Opinion, 9/11/03, at 12; however, Keaton points out some of the comments were made during opening statement, before the defense made any attack on credibility.
Contrary to Keaton‘s claim, the prosecutor‘s questions and statements about the victims’ family lives were not victim impact evidence. Victim impact evidence is “information concerning the victim and the impact that the death of the victim has had on the family of the victim....”
Keaton contends the prosecutor made inflammatory, vindictive remarks during the guilt phase closing, to which trial counsel should have objected:
Ladies and Gentlemen, the kind of torture that that young woman went through should not happen to anybody.... Not only did these sexual assaults take place, but you recall her wallet was also taken containing $3.00. It wasn‘t enough to torture her like that, the defendant also took her money.
N.T. Trial, 9/20/94, at 60. The prosecutor later stated, “Ladies and Gentlemen, animals don‘t treat each other the way this defendant treated these young women.” Id., at 72. Trial counsel‘s objection was sustained, but he did not request a curative instruction.
Given that the evidence indicated Keaton not only raped one of the victims, but also stuck a tree branch and wine bottle up her vagina, urinated in her mouth, and beat her with a weightlifter‘s belt, the prosecutor‘s first remark was fair com
Keaton claims the prosecutor, during the guilt phase closing, injected expressions of personal opinion about the existence of a woman, “Topaz,” who Keaton contended shared drugs and engaged in sex with him and the murder victim on the night of the crime:
But I submit to you, Ladies and Gentlemen, that Topaz was a figment of the defendant‘s imagination. That he made up Topaz along with the story of how Sherrill Ann Hall was killed, so that it would not appear as though it was an intentional killing. Nobody has been able to locate anybody named Topaz in that area. Nobody knows Topaz. If in fact there were anybody named Topaz, wouldn‘t she have been brought in here by somebody? But nobody can locate anybody by that name. So I submit to you that you should not pay any attention to Topaz....
N.T. Trial, 9/20/94, at 60-61. Keaton also claims the prosecutor expressed personal opinion regarding what degree of murder he had committed:
When it comes to the Homicide Bill ..., you will have five, or six, actually, possible verdicts. If you start with murder in the first degree, I think you will have no trouble following that Bill. I think you will find that in fact the Commonwealth has proven through the defendant‘s statement and through the physical evidence and the pattern of incidents, that in fact this was a premeditated, willful and deliberate killing.... So if you start with murder in the first degree, I don‘t think you will have to go any further.
Id., at 70 (emphasis added).
In context, the prosecutor‘s statements were simply argument that the jury could infer the nonexistence of “Topaz” and the evidence established the elements of first degree murder; use of the word “think” does not automatically equate to an expression of personal opinion.
You heard about the fact that there were no shoes, no socks and no stockings in that property. Somebody, and I submit to you the defendant, took those items out of that property. There was no wallet, no pocketbook, no keys, no money, no means of identification except a medical card that had been somewhere near the body, apparently had fallen from something.
Id., at 64 (emphasis added). Keaton argues there was nothing in the evidence to suggest he took the murder victim‘s shoes, socks, and personal items from the crime scene; the prosecutor suggested, with no basis, that he was not only a rapist and murderer, but also a robber.
Whether Keaton took these items from the victim was not at issue, and the prosecutor‘s brief remark could not have prejudiced the jury to the degree it was incapable of rendering a fair verdict. All of Keaton‘s prosecutorial misconduct claims fail; therefore, trial counsel cannot be deemed ineffective, and remand for further development of the claim pertaining to appellate counsel is unwarranted. Walker, at 9; McGill, at 1023.
Keaton claims appellate counsel was ineffective for failing to argue the trial court erred in limiting trial counsel‘s closing argument. During closing, trial counsel started to argue that because there was no DNA evidence linking Keaton to the crimes, the Commonwealth had not met its burden of proof. At side-bar, the trial court ruled that because no DNA testing had been conducted, DNA evidence was not part of the case. The trial court permitted trial counsel to argue the lack of physical evidence linking Keaton to the crimes, but not to specifically refer to the lack of DNA evidence. N.T. Trial, 9/20/94, at 26-28.
During closing argument, counsel may refer to all facts properly in evidence and argue all reasonable inferences
Keaton claims the trial court failed to provide proper cautionary instructions regarding the consolidation of the three separate charges for trial; he alleges trial counsel should have requested an instruction limiting the purpose for which the jury could consider the evidence of the two rapes, and contends this evidence depicted him as a violent sexual predator, thus bolstering “an otherwise weak homicide case.” Keaton‘s Brief, at 34. He further argues appellate counsel was ineffective for failing to raise this claim.
A jury charge must be read as a whole to determine whether it is appropriate, and the trial court has broad discretion in phrasing its instructions as long as the law is clearly, adequately, and accurately presented to the jury. Commonwealth v. Miller, 560 Pa. 500, 746 A.2d 592, 604 (2000) (citation omitted). Here, the trial court initially charged the
I told you that you are to decide these cases separately with no pattern. You may use whatever inferences that you think are appropriate in considering all other evidence in making your decision on any other of the victims that is not included in that particular decision. You can carry over inferences in each case and consider with the evidence in that case whether or not the Commonwealth has met its burden.
N.T. Trial, 9/20/94, at 134-35. This instruction was not an abuse of discretion; the trial court told the jury, consistent with the purpose for which the cases were consolidated for trial, that it could draw reasonable inferences based on the crimes’ similarities. Furthermore, the trial court told the jury its verdict could not be based upon sympathy or prejudice against Keaton or any of the victims, id., at 82, and it could not find Keaton guilty based on mere suspicion. Id., at 84. Finally, although case law and the Pennsylvania Suggested Standard Jury Instructions provide a limiting instruction must be given when evidence of an uncharged offense is admitted under the common scheme or plan exception, see Pa.S.S.J.I. (Crim.) 3.08; Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835 (1989), no similar requirement exists regarding other charges consolidated in a single trial. As Keaton‘s record-based claim is meritless, remand for further development of his claim regarding appellate counsel‘s performance is unwarranted. Walker, at 9; McGill, at 1023.
Atkins Claim
As none of Keaton‘s guilt phase claims entitle him to relief, we now turn to his claim that he is mentally retarded and thus
On remand, the PCRA court heard argument from the parties based on the record from Keaton‘s 2002 PCRA hearing,19 at which he presented expert testimony, as well as testimony from family and friends. The Commonwealth also presented expert testimony.
To obtain relief on an Atkins claim, the defendant must show, by a preponderance of the evidence, that he is mentally retarded under either of the definitions of mental retardation provided by the American Psychiatric Association
The AAMR defines mental retardation as a “disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in the conceptual, social, and practical adaptive skills.” Mental Retardation[: Definition, Classifications, and Systems of Supports 1 (10th ed.2002),] at 1. The American Psychiatric Association defines mental retardation as “significantly subaverage intellectual functioning (an IQ of approximately 70 or below) with onset before age 18 years and concurrent deficits or impairments in adaptive functioning.” [Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1992) (DSM-IV),] at 37. Thus, ... both definitions of mental retardation incorporate three concepts: 1) limited intellectual functioning; 2) significant adaptive limitations; and 3) age of onset.22
Miller, at 629-30 (footnote in original) (emphasis added); see Commonwealth v. Crawley, 592 Pa. 222, 924 A.2d 612, 614-15 (2007) (reaffirming Miller‘s standard).
Regarding the requirement of limited intellectual functioning, there is no “cut-off IQ” for mental retardation; rather, it is the “interaction between limited intellectual functioning and deficiencies in adaptive skills that establish mental
The Commonwealth‘s expert, Dr. John O‘Brien, a psychiatrist who evaluated Keaton for the PCRA hearing, did not administer any intelligence tests to Keaton, but accepted Dr. Mack‘s test results. N.T. PCRA Hearing, 11/2/02, at 18. He concluded Keaton was in the borderline to low-average range of intelligence, but did not believe Keaton to be mentally retarded. Id., at 25-26, 36. Dr. Alan Tepper, a forensic psychologist who evaluated Keaton before trial, did not administer an IQ test, but based on other more limited tests of Keaton‘s cognitive functions, did not find Keaton to be mentally retarded. N.T. PCRA Hearing, 11/5/02, at 96.
The PCRA court noted the “substantially varying results” in the experts’ evaluations of Keaton‘s intelligence, PCRA Court Opinion, 11/13/09, at 8, and gave more weight to the opinions and test results of Drs. Dougherty and Mack because they administered actual comprehensive IQ tests. Id., at 9-10. The court gave weight to Dr. Dougherty‘s opinion because he was an expert in diagnosing mental retardation, id., at 9 (citing N.T. PCRA Hearing, 10/11/02, at 3-4); however, it also gave Dr. Mack‘s opinion weight because he administered an adult IQ test as opposed to Dr. Dougherty‘s child-oriented, academic test. Id. (citing N.T. PCRA Hearing, 11/1/02, at 6, 10). The court noted Dr. Dougherty‘s finding an IQ score of
Turning to the requirement that the onset of the symptoms of limited intellectual functioning be prior to the age of 18,24 the PCRA court noted although no IQ tests were performed on Keaton prior to that age, other standardized tests showed he exhibited academic deficiencies at an early age. Id., at 11 (citing N.T. PCRA Hearing, 10/11/02, at 103-04; N.T. PCRA Hearing, 11/5/02, at 31). The court credited the testimony of Drs. Dougherty and Mack, who opined Keaton‘s low test scores in first and third grade were evidence of limited intellectual functioning; they further opined this limited functioning was not solely the result of Keaton‘s many absences and later drug use. Id., at 11-12. The court noted although Keaton demonstrated ability to perform at an average or better level in some of his studies, “the existence of certain areas of functioning does not necessarily rule out the presence of mental retardation.” Id., at 12 (citing N.T. PCRA Hearing, 10/11/02, at 54). Accordingly, the court concluded Keaton satisfied his burden of proof regarding the age of onset.
Dr. Dougherty stated in his affidavit that his diagnosis of mild mental retardation was based on Keaton‘s IQ score of 69, as well as Keaton‘s demonstration of impairment in communication, functional academic skills, social skills, work skills, and self-direction skills. PCRA Court Opinion, 11/13/09, at 13. However, the court noted Dr. Dougherty did not perform standardized testing of Keaton‘s adaptive skills; therefore, it analyzed the record for evidence regarding significant limitation in at least two of the aforementioned areas of functional skills. Id. (citing N.T. PCRA Hearing, 11/2/02, at 19).
The court noted Drs. Mack and O‘Brien corroborated some of Dr. Dougherty‘s testimony regarding Keaton‘s limited academic abilities in math and spelling not being related to his numerous absences. Id., at 14 (citing N.T. PCRA Hearing, 11/5/02, at 31-32; N.T. PCRA Hearing, 11/2/02, at 37-38). Drs. Tepper and O‘Brien noted Keaton was previously diagnosed with antisocial personality disorder. Id., at 14-15 (citing N.T. PCRA Hearing, 11/5/02, at 88; N.T. PCRA Hearing, 11/2/02, at 15). Dr. Dougherty disagreed with these findings. Id., at 15 (citing N.T. PCRA Hearing, 10/11/02, at 132). Dr.
Based on the above testimony, the PCRA court concluded Keaton failed to demonstrate limited adaptive functioning in more than one area. Id., at 16-18. Although he showed his academic limitations in reading and math were potentially the result of mental retardation, his other academic disabilities were equally explainable by his numerous absences. Id., at 16. The court further concluded the record did not support Dr. Dougherty‘s opinion that Keaton is significantly deficient in his social and interpersonal skills, communication, self-direction, or work. Id. Specifically, the court stated Dr. Dougherty‘s testimony that Keaton did not have an antisocial personality disorder undermined the expert‘s opinion that Keaton significantly lacked social skills. Id., at 17. The non-expert testimony of Keaton‘s family and friends also contradicted this opinion, as well as the opinion that Keaton could only function under supervision. Id. The PCRA court found little to no evidence of any significant limitation of any other adaptive life skills. Id. Accordingly, the PCRA court concluded Keaton had demonstrated, at most, limited functional academic skills; as no other areas of significant limitation were apparent from the record, Keaton failed to establish the third element in the definition of mental retardation.
Penalty Phase
Keaton raises several penalty phase claims,26 and the Commonwealth, in its cross-appeal, raises one penalty phase claim: whether the PCRA court erred in granting a new penalty phase based on trial counsel‘s failure to investigate and present mitigating mental health evidence. As the Commonwealth‘s issue is dispositive, we address it first.
At the penalty phase, trial counsel presented testimony from Keaton‘s two younger sisters, his aunt, a family friend, and a minister who knew him from the neighborhood; against counsel‘s advice, Keaton also testified. All of the witnesses testified Keaton was helpful, respectful, and kind; he helped take care of his younger siblings when his mother was ill and took care of them after her death. Keaton‘s family members attested to his drug addiction and confirmed he was not himself when on drugs and did not associate with them when
At the PCRA hearing, Keaton‘s sisters testified their parents and their mother‘s boyfriends abused Keaton during childhood, and he also witnessed his mother and siblings being beaten. N.T. PCRA Hearing, 10/2/02, at 41-45, 54; N.T. PCRA Hearing, 10/11/02, at 154-55, 161. They again told how Keaton took care of his younger siblings when their mother became ill, resulting in his frequent absence from school. N.T. PCRA Hearing, 10/2/02, at 45-48; N.T. PCRA Hearing, 10/11/02, at 156-58. One sister mentioned their family lived in extreme poverty during Keaton‘s childhood. N.T. PCRA Hearing, 10/2/02, at 56. Both sisters testified Keaton was not violent, and had a good reputation as a peaceful, calm person. Id., at 55; N.T. PCRA Hearing, 10/11/02, at 162. One sister characterized Keaton as having been normal until he became addicted to drugs. Id., at 160. Both testified trial counsel did not prepare them for their testimony or inquire about Keaton‘s childhood; trial counsel only spoke to them outside the courtroom immediately prior to the penalty phase. N.T. PCRA Hearing, 10/2/02, at 54-55; N.T. PCRA Hearing, 10/11/02, at 161-62.
Keaton‘s aunt testified he was well-liked and respected in the community where he grew up, and was able to defend himself because of his size. Id., at 86. A childhood friend of Keaton‘s testified he had a good reputation for being peaceful and non-violent. Id., at 88. She further stated he was not bullied as a child, did not bully others, and was well-liked. Id.,
Dr. Knolly Hill, a psychologist who treated Keaton at age 13 in group therapy because of his academic difficulties, confirmed there was domestic violence in Keaton‘s family, but did not recall learning this fact from Keaton; he also could not recall whether Keaton was subjected to abuse himself, but knew he at least witnessed it happening to others. N.T. PCRA Hearing, 10/2/02, at 63, 68-71, 74. Dr. Hill confirmed Keaton was the family caretaker during his mother‘s illness, and opined his academic difficulties could be attributed to his resultant absences and not a lack of intelligence. Id., at 75-76, 78-79. Dr. Hill observed Keaton was not aggressive, but that he was ostracized by the other children in the group because of his extreme poverty. Id., at 66-67, 80-81.
Dr. Tepper, the forensic psychologist who evaluated Keaton for the guilt and penalty phases, testified Keaton told him about his siblings, his father‘s absence, his drug use, his adolescent counseling, his difficulty in school, and admitted he had temper control problems; Keaton did not mention he was physically abused. N.T. PCRA Hearing, 11/5/02, at 65-68, 87, 92-93. Dr. Tepper‘s screening test of Keaton revealed “a strong possibility of underlying organic or brain dysfunction.” Id., at 69. Dr. Tepper‘s preliminary findings after evaluating Keaton were that Keaton had: family/developmental problems as a child; perceptual motor difficulties which could be organically based and could interfere with his personal and social functions; and underlying feelings/impulses which he tried to control and used drugs to defend against. Id., at 71-72, 87, 91, 93-95. Dr. Tepper stated, in light of these findings, he would have recommended trial counsel pursue further testing, and he reported his findings to trial counsel and asked for Keaton‘s records; his findings would have been “a basis to look into other records.” Id., at 72-73, 85-87, 90. However,
Dr. Tepper testified he reviewed Keaton‘s records from school, adolescent counseling, juvenile dependency, and drug treatment. The school records revealed Keaton‘s poor attendance due to problems at home, and “really contain[ed] a large amount ... of ... personal and family information.” Id., at 74-75. Keaton‘s adolescent counseling records indicated he was abused or beaten in his neighborhood, had begun acting out, was the family caretaker, and lived in extreme poverty. Id., at 84-85. The juvenile dependency records reflected Keaton‘s living conditions were “severe,” which Dr. Tepper stated could affect development. Id., at 78-80. The hospital records from Keaton‘s treatment for depression and suicidal ideations resulting from his drug addiction in 1988 contained his personal and family background, detailed his drug use and cocaine dependence, and indicated he suffered from auditory and visual hallucinations when he was on drugs. Id., at 76-78. Dr. Tepper stated the hallucinations were significant because they suggested “some kind of brain involvement....” Id., at 78. He also acknowledged the records contained a diagnosis of possible antisocial personality disorder, and reflected instances where Keaton was confrontational with other patients, particularly women, and had difficulty controlling his temper. Id., at 87-88. Finally, Dr. Tepper reviewed Keaton‘s mother‘s mental health records, which contained information about Keaton‘s family background and the family‘s home life, adding to his developmental history. Id., at 81-83.
Dr. Mack, the neuropsychologist who examined Keaton in preparation for his PCRA proceedings, testified his interview and testing of Keaton revealed Keaton was of borderline intelligence and had neurocognitive defects in executive functioning, which resulted in his having problems with inhibition, impulse control, planning, judgment, and adaptive behavior; these issues would be aggravated when he was under stress or the influence of drugs. N.T. PCRA Hearing, 11/1/02, at 7, 16-20, 24-25; N.T. PCRA Hearing, 11/5/02, at 37. The expert further concluded, based on his tests and his review of the
Dr. Dougherty testified his assessment of Keaton, coupled with his review of the records and affidavits, indicated Keaton had some kind of neurological problem which interfered with his functioning ability. N.T. PCRA Hearing, 10/11/02, at 5-7, 13-14. Additionally, a short neurological assessment procedure the expert administered indicated neurological problems which warranted further evaluation; therefore, he recommended PCRA counsel obtain a comprehensive neurological examination for Keaton. Id., at 19-21, 122. The personality tests Dr. Dougherty administered revealed Keaton was severely depressed, functioned at a low intellectual level, had experienced hallucinations, had long-existing substance abuse problems and attention deficit hyperactivity disorder, and had
Dr. Dougherty stated Keaton‘s hospital records demonstrated his long-existing depression and cocaine addiction, and detailed his displays of grandiosity, childlike behavior, and rambling, tangential speech—all indicators of bipolar disorder. Id., at 28-35, 139. The hospital records also documented Keaton‘s suicide attempt and hallucinations. Id., at 28, 34-36. The expert stated the hospital records were “very consistent” with his findings regarding Keaton‘s mental health. Id., at 34-35.
Dr. Dougherty testified his review of Keaton‘s school records revealed Keaton missed up to one-third of each school year and was functioning at the fourth grade level in eleventh grade. His teachers’ comments were indicative of attention deficit disorder, which went untreated. Id., at 37-42. The expert stated the dependency petition filed for Keaton during childhood noted the “squalid” background of neglect and poverty Keaton experienced. Id., at 44-45. The expert further noted affidavits from friends and family indicated Keaton saw others in his household being abused, that there was no structure in the house, and Keaton frequently did not know where he would be spending the night because of his mother‘s fights with her abusive paramours. Id., at 46-50. The expert admitted none of Keaton‘s school and health records mentioned Keaton being physically abused; however, he indicated Keaton said in other documents that his mother hit him. Id., at 46, 81-83. Dr. Dougherty testified his review of Keaton‘s mother‘s mental health records showed she was mentally ill, severely depressed, and could not care for herself or her children; Keaton was needy and did not get support at home or in school. Id., at 50-51.
Dr. O‘Brien, the forensic psychologist, interviewed Keaton and reviewed the records and affidavits. N.T. PCRA Hearing, 11/2/02, at 6-9, 28. He noted Keaton‘s school records showed, despite his poor attendance, he managed to graduate in the middle of his class. Id., at 9-10, 33-34, 39. The dependency petition showed Keaton‘s deplorable home conditions as a child, id., at 10, 32, and Keaton stated in his interview that his mother‘s boyfriends abused him as well as his mother; however, none of the records indicated Keaton was physically abused. Id., at 28-31, 62. Dr. O‘Brien noted Keaton‘s hospital records indicated he had depression, suicidal ideations, and substance abuse, id., at 10-11; however, he disagreed with the diagnosis of bipolar disorder, opining the same symptoms could have been attributable to Keaton‘s withdrawal from drugs, and adjustment disorder might have been a more appropriate diagnosis. Id., at 45, 57-60. The expert also noted there was no documentation in the hospital records regarding any cognitive impairment, but there was also no indication that cognitive testing was performed there. Id., at 12.
Dr. O‘Brien noted Keaton‘s 1994 PSI indicated he had no cognitive impairments, his short- and long-term memory was intact, as was his abstract thinking, and he had a personality
Dr. O‘Brien disagreed with Dr. Dougherty‘s diagnosis of attention deficit disorder, id., at 35-37; although he agreed with Dr. Mack‘s test results, he did not agree with Dr. Mack‘s conclusion they were indicative of a cognitive disorder. Id., at 18, 55. Dr. O‘Brien further stated his own cognitive capacity screening of Keaton revealed limited impairment, but not to the degree that he would refer him to a neuropsychologist; there was nothing clinically significant. Id., at 51-54. Finally, Dr. O‘Brien testified Keaton‘s depiction of the crime during their interview was the same as that given at trial and in Keaton‘s police statement. Id., at 22. Based on this depiction, Keaton was aware of what was happening at the time of the crime; nothing indicated his behavior was influenced by cognitive impairment or substance intoxication to the point he did not know what he was doing. Id., at 23-27. Thus, the expert‘s testimony contradicted the evidence offered regarding the (e)(2) and (e)(3) mitigators.
Trial counsel testified he retained an investigator and Dr. Tepper to prepare for the penalty phase; it was his practice to hire an expert for capital cases, and he did not retain Dr. Tepper due to any suspicion that Keaton had mental health issues. N.T. PCRA Hearing, 10/2/02, at 7, 14, 21. Trial counsel stated he would not have been looking for any mental health issues when the investigator met with Keaton, and his communications with Keaton never indicated there were mental health issues other than Keaton‘s intoxication on drugs at the time of the crime. Id., at 15, 29. Trial counsel explained it was his practice to leave the mental health investigation up to the expert. Id., at 29. Trial counsel testified he spoke to Keaton‘s family and girlfriend in preparation for the penalty
Regarding what background information he provided to Dr. Tepper, trial counsel did not recall with specificity what he gave this expert, but testified it was his usual practice to provide the entire file of his discovery materials and notes from investigation. Id., at 8. Although trial counsel testified he would probably have ordered Keaton‘s school records regardless of whether he suspected mental health issues, he did not remember subpoenaing or sending an investigator to obtain these records, or those from Keaton‘s hospitalization and adolescent counseling; he did not recall seeing such documents at the penalty phase. Id., at 9, 10, 22-23, 35-36. Trial counsel did not remember what Dr. Tepper told him after having examined Keaton. Id., at 36. Trial counsel denied that he would have left it up to the expert to obtain Keaton‘s pertinent records, explaining he believed it was ultimately his responsibility to ensure such records were procured. Id., at 22, 37-38. Finally, trial counsel admitted he spent more time preparing for the guilt phase than the penalty phase because of the number of charges involved other than murder. Id., at 11-12.
Trial counsel‘s affidavit, which was stipulated as evidence at the PCRA hearing, stated he did not recall the specifics of his preparation for Keaton‘s case, such as who he interviewed prior to trial, or whether he obtained Keaton‘s school and medical records. He averred although it was his general practice to hire a mental health expert, he could not recall whether he had Keaton evaluated by one, and if so, what the results were and why he did not call such witness at the penalty phase. See Affidavit of Thomas Moore, Esq., 9/8/02, at 1, ¶ 4.
After hearing all of the evidence, the PCRA court found “there was substantial information available at the time of trial that trial counsel should have investigated” that would have produced evidence in support of the
Trial counsel‘s failure to develop and present this evidence was not a strategic decision. This “decision” was without any reasonable basis. Indeed, it was virtually without basis because counsel did no investigation despite that [sic] availability of social history information at the time of trial. There is a substantial likelihood that, had the mitigation evidence presented at the PCRA hearings been presented at trial, the outcome of the penalty hearing would have been different.
Id., at 22-23. Accordingly, the PCRA court granted Keaton a new penalty hearing.
The Commonwealth argues the PCRA court erroneously granted relief on the waived claim of trial counsel‘s ineffectiveness without examining the sole issue preserved for collateral review: whether appellate counsel was ineffective. The Commonwealth further asserts the PCRA court‘s grant of relief amounts to a finding that appellate counsel was ineffective per se for not raising an arguably meritorious claim of trial counsel‘s ineffectiveness; this result ignores the “reasonableness” and “prejudice” prongs of the ineffectiveness test regarding appellate counsel and instead focuses solely on the
The Commonwealth asserts appellate counsel made a reasonable investigation of all record-based claims, arguing eight issues on direct appeal; this Court concluded one issue had merit, but found the error was harmless. See Keaton, at 542-45. Furthermore, the Commonwealth contends, the information available to appellate counsel gave him no reason to suspect Keaton had any mental health issues; thus, there was a reasonable basis for his focusing solely on record-based claims.28 See Affidavit of Bernard L. Siegel, Esq., 10/29/02, at 1-2, ¶¶ 5-6.
The Commonwealth further contends, even if the issue of trial counsel‘s ineffectiveness is before this Court, the testimony from the PCRA hearing indicates trial counsel could not recall whether he obtained Keaton‘s school, hospital, and family court records. See N.T. PCRA Hearing, 10/2/02, at 8-10. The Commonwealth asserts trial counsel was probably aware of Keaton‘s hospitalization and counseling for drug abuse because Keaton told the expert counsel hired, see N.T. PCRA Hearing, 11/5/02, at 66-67, and counsel elicited penalty phase testimony from Keaton about his treatment for drug abuse. See N.T. Sentencing, 9/22/94, at 53-54. Thus, the Commonwealth contends, the record does not support the conclusion that trial counsel did not obtain Keaton‘s records. Even if trial counsel did not obtain the records, however, the Commonwealth argues the information they contained would not have provided helpful mitigation evidence; Keaton‘s school records refute his mental retardation claim, see PCRA Petition Exhibits, Tab 11, his family court records do not indicate he was physically abused as a child, see id., Tab 10, and his hospital records indicate he had no gross cognitive deficits. See id., Tab 12. The Commonwealth notes the hospital records contain diagnoses of depression, drug abuse, anti-social
Additionally, the Commonwealth claims evaluations of Keaton in 1994 and 1997, both performed for PSI purposes, indicated he had no major mental illness, but rather had adjustment and personality disorders; in these evaluations, he reported no physical abuse as a child, did not allude to any dysfunction in his upbringing, and did not mention such topics to trial counsel or the expert who evaluated him for penalty phase mitigation. See Pre-Sentence Report, 5/1/97; Mental Health Evaluation, 4/14/97; Mental Health Evaluation, 10/28/94; Pre-Sentence Report, 10/17/94. The Commonwealth also notes PCRA counsel conceded none of the records available to trial counsel indicated Keaton was physically abused as a child. See N.T. PCRA Hearing, 11/5/02, at 35. Thus, the Commonwealth contends the information trial counsel had available at the time of trial through his use of an investigator and mental health expert, coupled with his own interactions with Keaton, see N.T. PCRA Hearing, 10/2/02, at 15-17, revealed no indication of the mental issues or abuse the PCRA court held counsel should have discovered.
Finally, the Commonwealth argues the PCRA court impermissibly employed a hindsight analysis, contrary to Strickland and Commonwealth v. Laird, 555 Pa. 629, 726 A.2d 346 (1999).29 It contends the PCRA court improperly read Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), and Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), as dictating counsel be deemed inef-
In Williams and Wiggins, the United States Supreme Court held capital counsel has an obligation to thoroughly investigate and prepare mental health and other mitigating evidence, Williams, at 396; counsel cannot meet this requirement by relying on “only rudimentary knowledge of [the defendant‘s] history from a narrow set of sources.” Wiggins, at 524, 123 S.Ct. 2527. In Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008), this Court noted:
Under prevailing constitutional norms as explicated by the United States Supreme Court, capital counsel has an obligation to pursue all reasonable avenues for developing mitigating evidence. Counsel must conduct a thorough pre-trial investigation, or make reasonable decisions rendering particular investigations unnecessary. Strategic choices made following a less than complete investigation are reasonable precisely to the extent that reasonable professional judgment supports the limitation of the investigation. In undertaking the necessary assessment, courts are to make all reasonable efforts to avoid distorting effects of hindsight. Nevertheless, courts must also avoid “post hoc rationalization of counsel‘s conduct.”
Id., at 303-04 (citations and footnote omitted).
In Bobby, the United States Supreme Court clarified what Strickland requires in the context of investigation and prepa-
We first turn to the Commonwealth‘s assertion that the PCRA court failed to address appellate counsel‘s performance, improperly focusing solely on the claim pertaining to trial counsel. The Commonwealth is correct that the PCRA court‘s decision to grant relief is based on trial counsel‘s deficient performance; it did not address the reasonableness of appellate counsel‘s strategic decision to forego presenting this arguably meritorious issue and only present record-based claims, or whether such decision prejudiced Keaton. However, in light of our conclusion that appellate counsel‘s decision to forego raising extra-record claims was reasonable, the PCRA court‘s lack of analysis regarding appellate counsel‘s performance does not change the result here; indeed, under Walker, the claim regarding appellate counsel is passed through and not treated as a layered claim, enabling the merits of the extra-record claim regarding trial counsel to be addressed. Thus, the Commonwealth‘s claims that the PCRA court erroneously granted relief on a waived claim and found appellate counsel ineffective per se fail, and we turn to review Keaton‘s claim regarding trial counsel‘s stewardship.
Had trial counsel reviewed Keaton‘s adolescent counseling and dependency records33 and asked Keaton and his siblings, he would have discovered available evidence concerning Keaton‘s childhood abuse and the deplorable poverty and neglect he was raised in; however, counsel testified it was not his practice to inquire regarding abuse. There was no other
The above evidence was not merely cumulative of that presented at the penalty phase; during that phase, the evidence presented pertained to Keaton‘s drug abuse and role as family caretaker, the theme being that he was a good person whose addiction was his downfall. The evidence trial counsel failed to investigate and present pertained to Keaton‘s dysfunctional upbringing and mental health issues. Cf. Commonwealth v. Ligons, 601 Pa. 103, 971 A.2d 1125, 1152-54 (2009) (holding trial counsel not ineffective where penalty phase evidence did not materially differ from evidence trial counsel failed to investigate and provide to mental health expert; under such circumstances, not likely at least one juror would have accepted at least one mitigator and found it outweighed aggravator). The strategy of focusing on a defendant‘s redeeming qualities, rather than painting him as the deranged product of a horrific background, is often a reasonable one. See Commonwealth v. Gibson, 596 Pa. 1, 940 A.2d 323, 327 (2005) (Eakin, J., dissenting) (noting two types of mitigating evidence: focusing on defendant‘s positive traits in order to establish his redemptive qualities, and focusing on his negative background as explanation for why he committed crime); Commonwealth v. Bridges, 584 Pa. 589, 886 A.2d 1127, 1133 (2005) (unpleasant childhood factors counsel was aware of would have detracted from mitigation evidence trial counsel did present); Commonwealth v. Robinson, 583 Pa. 358, 877 A.2d 433, 448 (2005) (counsel used information from defendant and family to paint defendant in most positive light possible).
Here, however, trial counsel chose this strategy without further investigation or awareness of other available options. Evidence about a defendant‘s background and character is relevant because of the societal belief that defendants who commit crimes attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than those without such excuses. See Perry, at 319. Thus, trial counsel‘s decision not to investigate what was deemed a viable alternative by his expert, coupled with his failure to secure
PCRA Proceedings
Keaton claims the PCRA court deprived him of due process when it denied his request for discovery. Keaton requested the police records in all cases in which he was interrogated at the same time he was interrogated regarding Hall‘s murder, as well as the police records in the rape case regarding Nadine S.; he claimed these records were relevant because the cases were “factually and procedurally intertwined” and his arrest for Nadine S.‘s rape “started the chain of events which led to his subsequent interrogation and arrests.” Amended PCRA Petition, 11/20/00, at 124, ¶ 331a. Keaton requested the police records in two other rape cases involving the same officer who investigated Michelle B.‘s rape; he claimed these records were relevant to analyze the credibility of this officer and his role in the investigation on this case. Id., at ¶ 331b. Keaton also requested the notes of testimony on his pre-trial motion to dismiss counsel, alleging only that his right to counsel was violated by the trial court‘s summary denial of his subsequent motion for dismissal of counsel. Id., at ¶ 331c. Finally, Keaton requested the medical records from Michelle B. and another rape victim; he claimed these records were “relevant to the petition and necessary to analyze the testimony of these witnesses.” Id., at 125, ¶ 331d.
We review the denial of discovery for an abuse of discretion. Commonwealth v. Collins, 598 Pa. 397, 957 A.2d
We find the PCRA court did not abuse its discretion in denying Keaton‘s discovery request. His general assertion of relevance to suppression and credibility issues is insufficient to meet his burden of showing good cause. He “essentially requested wholesale discovery of” police and medical reports, as well as hearing transcripts, in order to “discern whether his assertions were true.” Williams, at 1175 (quoting Abu-Jamal, at 91). Accordingly, Keaton‘s discovery claim fails.
Keaton contends the PCRA court abused its discretion in granting an evidentiary hearing only on his claim regarding trial counsel‘s failure to investigate and present adequate mitigating evidence during the penalty phase; he argues he is entitled to a hearing on all of his other claims, and he should be permitted to amend his pleadings to cure any procedural deficiencies.
A PCRA petitioner is not entitled to an evidentiary hearing as a matter of right, but only where the petition presents genuine issues of material fact.
Conclusion
Having concluded there is a factual question regarding whether Keaton invoked his Fifth Amendment right to counsel on December 19, 1992, we remand to the PCRA court for determination of this issue and for the parties to address the applicability of Shatzer if the court determines Keaton did invoke his right. As to Keaton‘s remaining guilt phase claims, we affirm the PCRA court‘s denial of relief. We affirm the PCRA court‘s denial of Atkins relief and its grant of a new penalty phase on the basis of trial counsel‘s failure to investigate and present mitigating mental health evidence.
Order affirmed in part, reversed in part; case remanded for further proceedings consistent with this decision. Jurisdiction relinquished.
Justice ORIE MELVIN did not participate in the decision of this case.
Justice CASTILLE, Justices BAER, TODD and McCAFFERY join the opinion.
Justice SAYLOR files a concurring and dissenting opinion.
Justice SAYLOR, concurring and dissenting.
I concur in the affirmance of the award of penalty relief but respectfully dissent as to the treatment of the broader category of guilt-phase claims. As to the latter claims category, I favor evidentiary development, consistent with my position as previously expressed elsewhere. See, e.g., Commonwealth v. Smith, 609 Pa. 605, 677-79, 17 A.3d 873, 915-17 (2011) (Saylor, J., dissenting). I continue to believe that the absence of an
For example, on the topic of reputation evidence, the majority suggests that the record was limited to personal opinions concerning Appellant‘s character. See Majority Opinion, at 715, 45 A.3d at 1074. However, there is no indication that Appellant had notice of such an asserted defect in his proffer and, hence, the opportunity to cure it. In this regard, the majority does not discuss the role of adequate pre-dismissal notice by the PCRA court, or the opportunity to amend contemplated by our procedural rules. See
My final comment pertains to the majority‘s perspective, derived from a previous dissent, that “[t]he strategy of focusing on a defendant‘s redeeming qualities, rather than painting him as the deranged product of a horrific background, is often a reasonable one.” Majority Opinion, at 745, 45 A.3d at 1092 (citation omitted). For my own part, I do not find this sentiment to be useful or apt to our appellate review in the death-penalty arena. While a capital defense attorney certainly would not paint his client as deranged, the difficulty he often will encounter is that, by the time of the penalty stage in a capital case, the prosecution will already have established deplorable conduct on the part of the defendant to the satisfaction of the jurors beyond a reasonable doubt. Thus, the challenge facing counsel is to adduce some evidence to blunt the force of such conclusion, in terms of the degree of the
Notes
[W]hile precluding arguments based on DNA evidence because such evidence had not been presented, the court ruled that defense counsel could argue the absence of scientific evidence linking Keaton to any of the blood and semen samples that the police gathered from the victims’ garments and other physical objects. Immediately after this ruling, defense counsel proceeded to highlight the fact that the police did not produce any such scientific or other evidence.
Keaton, at 539.Here, the evidence at Keaton‘s first PCRA hearing specifically addressed the issue of mental retardation; therefore, the PCRA court and parties stipulated there was sufficient evidence for the PCRA court to make findings on remand regarding whether Keaton was mentally retarded, without hearing additional evidence. See PCRA Court Opinion, 11/13/09, at 2. Remand was necessary not because of the lack of evidence, but because there was no specific ruling by the PCRA court on the issue, and the expert testimony from the first PCRA hearing was equivocal; some experts deemed Keaton borderline mentally retarded, while others concluded he was mildly mentally retarded. As Miller noted, the critical difference between these two states—“borderline mentally retarded” does not automatically equate with “mentally retarded” unless there are also significant deficits in adaptive behavior—necessitated remand for a conclusive ruling. Id., at 632-33.