OPINION
On March 23, 2000, a jury sitting before the Honorable John S. Kennedy of the Court of Common Pleas of York County *434 convicted appellant of kidnapping, 1 conspiracy to commit murder 2 and murder in the first degree 3 in connection .with the shooting death of Arthur Irick. At the penalty hearing, the jury found a single aggravating circumstance—that the murder had been committed during the perpetration of a felony, kidnapping 4 —but no mitigating circumstances; 5 accordingly, the jury imposed a sentence of death. 6 On May 22, 2000, the trial court formally imposed the death sentence for first-degree murder. Additionally, appellant was sentenced to maximum consecutive sentences of ten to twenty years of imprisonment each for kidnapping and conspiracy.
Appellant appealed and on June 15, 2000, filed a timely Pa.R.A.P 1925(b) statement of matters complained of on appeal, raising ten issues. On June 5, 2001, appellant contacted his trial attorney, Richard Robinson, Esquire, advising counsel that he no longer wished counsel to represent him and that he wished to pursue ineffective assistance of counsel claims against him. On June 14, 2001, Frank C. Arcuri, Esquire, was appointed and he filed in this Court, inter alia, a petition to remand for an evidentiary hearing to establish a record for appellate review of ineffectiveness claims. The petition for remand was granted on July 27, 2001. The evidentiary hearing on appellant’s ineffective assistance of counsel claims was held on October 23, 2001.
Appellant now raises eight issues of ineffective assistance of *435 counsel and trial court error. 7 For the following reasons, we affirm the verdict of guilt, but vacate the death sentence and remand for a new sentencing hearing.
I. Sufficiency of Evidence
Although appellant does not challenge the sufficiency of the evidence, in all cases where the death penalty has been imposed, this Court conducts a self-imposed review of the sufficiency of the evidence underlying the first-degree murder conviction.
See Commonwealth v. Zettlemoyer,
Our independent review of the evidence establishes that during the late-night hours of November 7, 1996, Willie Gooding, Antoine Brown and appellant Malloy were standing outside of Crystal Brown’s house on Franklin Way in the City of *436 York. At the time, appellant was staying in Crystal’s home. Three unidentified individuals dressed in sweatshirts with hoods approached appellant and his friends. Appellant began to walk away when one of the unidentified men said, “freeze,” shot at appellant and then fled. Gooding, Antoine Brown and appellant then ran into Crystal’s house. Crystal called the police, who responded.
A witness to this shooting, Shanika Williams, testified that she saw three people wearing “hoodies” and that she heard the gunshots. Williams further testified that she told appellant that she thought that Arthur Irick had committed the shooting. Appellant, Gooding and Antoine Brown later met up with Cory Rieara and discussed the shooting. They identified Irick and Terrence Murphy as potential shooters and thаt Murphy and Irick had reputations for being “stick-up kids,” i.e., people who rob drug dealers.
The four individuals then went looking for Irick and Murphy. Appellant rode in a Subaru driven by Antoine Brown while Rieara rode in a blue Pontiac driven by Gooding. Appellant spotted Irick talking on the phone at a gas station on Queen Street. Both cars circled the block and pulled into the gas station next to Irick, while he was still on the phone. The four men got out of the cars, approached Irick and asked him if he knew anything abut the shooting on Franklin Way. Irick responded that he had heard something about the shooting and that he was on his way to meet someone at the Starlight building who knew what had happeifed and that the four men could come with him. Irick then got in the back of the Subaru. On the way to the Starlight building, the men stopped at Rieara’s apartment where Rieara retrieved a .25 caliber semi-automatic hand gun and gave it to Malloy.
Upon arriving at the Starlight building, Malloy and Irick exited the Subaru, went to the door and rang the bell. Receiving no answer, appellant and Irick walked back to the cars. Appellant became angry and struck Irick with the gun and forced him into the back of the Subaru. Both cars drove approximately 10 to 15 minutes away to the Warren Street lot on the east end of town. The vehicles pulled up side by side *437 and turned their lights off. Appellant then got out of the car and ordered Irick to also get out of the car. Irick resisted and begged Antoine Brown to help him. Rieara then came over and assured Irick that nothing was going to happen and he was just going to have to walk home. Irick then got out of the car and appellant grabbed him and brought him to the front of the car. While standing face-to-face, Malloy shot Irick four times in the head. After leaving the scene appellant disposed of the gun in the sewer.
On the morning of November 8, 1996, York City police received a report of a man lying in the parking lot on Warren Street. The police officers found Irick, deceased, lying on his back with substantial amounts of blood underneath his head. Four .25-caliber casings were recovered from around the body. An autopsy ruled the death a homicide with the cause of death as multiple gun shot wounds to the head. The victim had been shot once in the face and three times in the back of the head.
On September 23, 1998, Rieara was interviewed by the police in reference to the murder. He gave a statement to Agent William Miller and agreed to testify against appellant at trial and to take the police to the sewer where appellant had dropped the gun. 8 Detective Dennis Williams accompanied Rieara and Agent Miller to the sewer where they recovered the gun and sent it to ballistics for analysis. At trial, ballistics officer James Rottmund testified that his analysis revealed that the shell casings found at the scene of the murder were discharged from the gun recovered by Detective Williams.
In October of 1998, the Commonwealth filed murder charges against appellant. Federal authorities filed separate criminal charges based on the same incident, however, and arrested appellant in New York and returned him to Pennsylvania. Federal plea negotiations were unconsummated and appellant was released into the Commonwealth’s custody on April 8, 1999. Detective Rodney George of the York Police *438 Department went to Harrisburg to arrest appellant. In the car traveling back from Harrisburg to York, Detective George advised appellant of his Miranda 9 rights. During the trip, appellant and Detective George discussed why appellant had declined the plea agreement offered by the U.S. Attorney’s Office. Upon arriving in York, Detective George again advised appellant of his Miranda rights and appellant indicated that he understood his rights and read and signed a waiver card. 10 Appellant then gave Detective George a statement, admitting to the murder of Irick. Detective George reduced the statement to writing. Appellant stated that the statement was accurate, but refused to sign it.
The foregoing evidence is amply sufficient to establish beyond a reasonable doubt that the victim Arthur Irick was unlawfully killed, that appellant killed him, that he acted with the specific intent to kill when he shot the victim in the head four times, and that the killing was done with premeditation and deliberation.
II. Guilt Phase Claims
A. Claims of Trial Court Error
Appellant forwards multiple claims of trial court error. First, appellant argues that the trial court erred in allowing the Commonwealth to introduce evidence of his prior bad acts. Specifically, appellant claims that the trial court erred in granting the Commonwealth’s motion in limine to introduce evidence of aрpellant’s drug activity because there was no evidence that the murder was drug-related. Appellant further argues that even if the evidence was relevant, it should not have been admitted because its prejudicial effect outweighed its probative value.
*439
Generally, the admissibility of evidence is a matter of trial court discretion and a ruling thereon will only be reversed upon a showing that the trial court abused that discretion.
See Commonwealth v. Stallworth,
A review of the trial testimony reveals only one reference that appellant was involved in drug-related activity. See N.T. 3/22/00 at 473 (witness James Hughes testified that he bought drugs from аppellant). The other references to drug-related activity involved either appellant’s co-conspirators or the victim. Prior to closing statements, appellant’s trial counsel made a motion for a mistrial based upon the admission of evidence that the murder was drug-related. In denying the motion, the trial court noted, inter alia, that there was evidence that the victim and appellant’s co-conspirators were involved in drug-dealing, but “there was very little testimony that [appellant] was involved in drug dealing.” N.T. 3/22/00 at 730.
Neither the single reference to appellant’s drug activity, nor evidence of the drug activity of others, was introduced to prove criminal propensity. Instead, the evidence was admitted in order to demonstrate the motive for the murder of Arthur Irick. Appellant argues that this murder was not drug-related, but rather, that he killed the victim because he believed that the victim had attempted to rob and shoot him earlier in the evening. While there was evidence of the
*440
retaliation motive appellant cites, this was not the entire story. The Commonwealth’s evidence demonstrated that the victim and his associates were “stick-up kids” who systеmatically robbed known drug dealers; that appellant and his co-conspirators knew this fact; that appellant and his co-conspirators were drug dealers; that the victim attempted to rob appellant earlier in the evening precisely because appellant and his co-conspirators were drug dealers; and that appellant murdered the victim in retaliation. Thus, the evidence of the drug-related activity, which was limited as to appellant’s specific prior bad acts, was properly admitted to show that this killing did not occur in a vacuum,
i.e.
to demonstrate motive.
See, e.g., Commonwealth v. Hall,
Appellant next claims that the trial court erred in admitting two photographs depicting the bullet wounds in the victim’s head. Appellant argues that the photographs were inflammatory аnd prejudicial and, as a result, inadmissible under Pa.R.E. 403. The admissibility of photographs falls within the discretion of the trial court and only an abuse of that discretion will constitute reversible error.
See Commonwealth v. Freeman,
Appellant notes that the photographs depicted (1) the wound to the victim’s face and (2) three wounds to the back of his head. Appellant acknowledges that the Commonwealth introduced the photographs for the relevant purpose of demonstrating the stippling effect on the victim’s head which shows that the victim was shot at close range. Appellant nevertheless argues that the trial court erred in admitting the photographs because they were inflammatory and the stippling effect could be adequately explained to the jury without the photographs. Appellant notes that, in fact, the Commonwealth presented expert testimony on the stippling effect, and therefore, he argues that the photographs were inadmissible as prejudicial and cumulative evidence.
The trial court held that admission of the photographs was proper because the stippling effect and the effect of the shooting at close-range, which was relevant to the charge of first-degree murder, could not be adequately explained without the photographs. While appellant asserts that the introduction of the two autopsy photographs was prejudicial, he does not offer any explanation as to why that is so. Additionally, although appellant correctly notes that Commonwealth experts testified that the stippling effect of the wounds depicted in the photos were a result of a close-range shooting, such indirect testimony does not inevitably render direct photographic evidence inadmissible.
See Commonwealth v. Begley,
Appellant next argues that the trial court erred in failing to suppress the inculpatory statement he made to Detective George on April 8, 1999. Appellant argues that the trial court erred in failing to suppress the statement because: (1) the record is devoid of an explicit waiver of appellant’s Miranda rights; and (2) appellant had previously invoked his Fifth Amendment rights in a federal investigation/prosecution for the same murder and was represented by federally-appointed counsel when he made the statement to local authorities.
“Our standard of review in addressing a challenge to a trial court’s denial of a suppression motion is limited to determining whether the factual findings arе supported by the record and whether the legal conclusions drawn from those facts are correct.”
Commonwealth v. Bomar,
Appellant first argues that, under the totality of the circumstances, his confession was neither voluntarily nor constitutionally obtained. Appellant claims that because Detective George failed to tape the interview and appellant refused to sign the statement there is nothing in the record to support that appellant explicitly waived his rights or adopted the written notes taken by Detective George. Brief for Appellant, at 40 (citing
Commonwealth v. Bussey,
Appellant argues that by failing to sign the statement he did not explicitly waive his
Miranda
rights. This claim is spurious. The record demonstrates that Detective George read appellant his rights and appellant then read and signed the rights card prior to giving his statement. By signing the rights card, appellant gave an explicit, written waiver of his rights. The fact that he later refused to sign the statement, after stating that it was accurate, is of no avail.
See, e.g., Commonwealth v. Holloway,
Appellant’s second argument respecting the confession is that his constitutional rights were violated because he had invoked his right to counsel in federal proceedings on the same charge, Detective George was aware of such representation, and Detective George still sought to question him. Appellant submits that his Fifth Amendment right to counsel had attached and Detective George violated that right by questioning him on the Pennsylvania state charges. Brief for Appellant, at 40-43 (citing
Edwards v. Arizona,
This argument is waived because appellant failed to raise this particular challenge before the suppression court. Pa.R.A.P. 302 (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”). Although appellant moved to suppress his statement, he did not raise the Fifth Amendment argument in the suppression motion or at the suppression hearing. Rather, appellant’s theory below consisted entirely of the credibility-based argument, discussed above, that he never explicitly waived his Miranda rights or gave an incriminating statement to Detective George, but that Detective George manufactured the statement. N.T. 3/13/00 at 26-28.
In accordance with this Court’s previous practice of relaxed waiver on direct capital appeals, we have discretion to reach alleged trial court errors which, although waived, are resolvable from the record.
See Commonwealth v. Zettlemoyer,
Appellant’s final claim of trial court error is that the court erred in denying his demurrer to the charge of kidnapping. The offense of kidnapping is defined as follows:
2901. Kidnapping
(a) Offense defined.—A person is guilty of kidnapping if he unlawfully removes another a substantial distance under the circumstances from the place where he is found, or if he unlawfully confines another for a substantial period in a place of isolation, with any of the following intentions:
sic * *
(2) To facilitate commission of any felony or flight thereafter.
(3) To inflict bodily injury on or to terrorize the victim or another.
18 Pa.C.S. § 2901(a). Appellant argues that the elements of kidnapping were not met because the ten to twelve blocks that the victim was transferred does not constitute a “substantial distance;” the movement of the victim did not increase the harm to him because it was incidental to the murder and “had no bearing on the evil at hand,” thereby not meeting the substantial distance requirement; and the victim voluntarily *446 accompanied appellant. Appellant thus claims that he should have been acquitted on the kidnapping charge.
For purposes of the kidnapping statute, a substantial distance is not limited to a defined linear distance or a certain time period.
See Commonwealth v. Hughes,
The testimony at trial demonstrated that, as appellant and' the victim were leaving the Starlight building, appellant became angry at the victim and struck him with the gun in order to force the victim to get back into the car. N.T. 3/22/00 at 612, 676. Additionally, witnesses testified that the victim was fearful and did not want to get back into the car.
See id.
After the victim was forced back into the car, he was transported approximately 10-15 minutes away to a secluded lot on the east side of town. Once the men arrived at the point of seclusion, the victim begged Antoine Brown for help, but he was then lured out of the car, whereupon appellant shot him in the head four times. The distance that the victim was transported during that 10-15 minute drive to the empty lot was a substantial distance for purposes of the kidnapping statute.
See, e.g., Hughes,
Appellant’s claim that no kidnapping occurred because the victim voluntarily accompanied his killers is likewise specious. Although the victim may have volunteered to accompany
*447
appellant and his co-conspirators to the Starlight building, it is clear that he was forced by appellant back into the car at gunpoint at the Starlight building. The fact that the victim originally accompanied appellant and his co-conspirators of his own volition does not negate his later kidnapping.
See, e.g., Commonwealth v. Begley,
B. Claims of Ineffective Assistance of Trial Counsel
Appellant raises two claims of trial counsel ineffectiveness at the guilt phase. In
Commonwealth v. Grant,
One such exception was delineated in
Commonwealth v. Bomar,
Appellant forwards his ineffective assistance claims under both the federal and Pennsylvania Constitutions. He does not argue that a different test obtains under the two charters, but rather forwards a single argument as to each claim. In any event, the test for counsel ineffectiveness is the same under both charters: it is the performance and prejudice test set forth in
Strickland v. Washington,
Appellant first argues that trial counsel was ineffective for failing to interview witnesses or ascertain several witnesses’ whereabouts in time for trial. Appellant first claims that Eric Banks had been named in Detective Barth’s reports as implicating Murphy in the victim’s murder. 11 Appellant admits, however, that Banks’ appointed Public Defender had indicated to the trial court that Banks would invoke the Fifth Amendment if called as a defense witness. Appellant further submits that other witnesses, including Shawn Chance, Travis DeJesus, Dion Wilson and Charlie Rideout, would have corroborated the statements madе by Banks to Detective Barth. Appellant states that the trial court was advised that although Dion Wilson and Travis DeJesus were known to be in the custody of the Department of Corrections, the defense had been unable to interview them or secure their appearance at trial. Appellant now claims that, because trial counsel failed to interview or locate the above witnesses, appellant was forced to face the jury without presenting any evidence or testimony. Appellant further argues that trial counsel’s failure to interview these witnesses rendered counsel ineffective.
To prevail on a claim of ineffectiveness for failure to call a witness, the appellant must demonstrate that: (1) the witness existed; (2) the witness was available; (3) trial counsel was informed of the existence of the witness or should have known of the witness’ existence; (4) the witness was prepared to cooperate and would have testified on appellant’s behalf; and (5) the absence of the testimony prejudiced appellant.
See Bomar,
*450 First, with respect to Eric Banks, trial counsel noted at the evidentiary hearing that he secured discovery statements from Banks and intended to call him as a witness at trial. N.T. 10/23/01 at 35. Indeed, Banks appeared at trial, but as the trial transcript demonstrates, Banks refused to testify on the advice of his attorney, announcing his intention to invoke his Fifth Amendment right against self-incrimination in response to any questioning about the death of Arthur Irick. N.T. 3/23/00 at 739. Because Banks would only have invoked his Fifth Amendment rights, the trial judge ruled that he could not be called as a witness. Since Banks made himself unavailable/unwilling to testify, appellant’s claim of ineffective assistance of counsel for failing to call Banks fails for lack of arguable merit.
Trial counsel was also not remiss for failing to call Chance, DeJesus, Wilson and Rideout. At the evidentiary hearing, trial counsel testified that while his private investigator located some potential witnesses to testify on appellant’s behalf, there were issues at trial which prevented him from calling them. N.T. 10/23/01 at 31. Those issues were discussed fully at a conference where trial counsel stated that his investigator was unable to locate Chance or Rideout. Further, trial counsel reported to the trial judge that although DeJesus and Wilson were in the state prison system (albeit trial counsel could not locate which penitentiary DeJesus was in), trial counsel elected not to call them as witnesses because their testimony would have consisted of inadmissible double-hearsay. N.T. 3/23/00 at 735-39. Indeed, it appears that the only thing these “witnesses” would have testified to was in fact double-hearsay:
i.e.
that Banks had told them that Murphy allegedly had told Banks that Murphy was involved in Arthur Irick’s murder. Notably, appellant failed to produce any of these witnesses at the evidentiary hearing and he does not now suggest that any of them would have provided other relevant and admissible testimony. Appellant has failed to demonstrate that the witnesses were available and prepared to cooperate; much less that, if they were, their testimony would have been relevant and admissible; and that the lack of their
*451
hearsay testimony prejudiced appellant. Accordingly, appellant’s ineffectiveness claim fails.
See (Michael) Pierce,
Appellant next claims that trial counsel was ineffective for failing to object to the prosecutor’s repeated remarks which, he says, linked the fact that appellant and his cо-conspirators were from New York with the allegation that they were involved in the drug dealing and violence in York County. In support of the argument, appellant cites to the following portion of the prosecutor’s opening statement:
In the last ten years or so, York County is no different than Lancaster, Harrisburg, and surrounding areas, they have been subject to an onslaught of people from New York coming down here, bringing their drugs down to your community to sell them, and along with those drugs they bring violence.
N.T. 3/21/00 at 345. Appellant alleges that similar comments were made during voir dire, during the case-in-chief, and in closing arguments. Appellant argues that these comments stigmatized him and created a fixed bias and hostility against him in the minds of the jury. Appellant claims that his trial counsel cannot have had a reasonable basis for failing to object to the comments.
The Commonwealth responds that, while it is true that the prosecutor referred to drug dealers from New York in his opening, and referred to appellant as a hoodlum in his closing, the record does not support that he made “continual” such references directed toward appellant. Rather, the other refеrences concerned the victim or other witnesses. Thus, the Commonwealth argues that the references to appellant were isolated and not prejudicial and, thus, counsel was not ineffective. The trial court, in its opinion, deemed the references to appellant hailing from New York as not prejudicial. Trial counsel, at the remand hearing, echoed that he did not object because evidence of drug-activity on the part of appellant and his co-conspirators had been deemed admissible and he did *452 not believe that the references to New York were prejudicial “in and of [themselves].”
“Generally, a prosecutor is permitted to vigorously argue his case so long as his comments are supported by evidence and contain inferences which are reasonably derived from that evidence.”
Commonwealth v. LaCava,
In this respect, this Court has noted that “a jury’s determination must be based solely upon the evidence and not a prosecutor’s emotional appeal or crusading incitation to ... convince the jury that a certain verdict is necessary as a form of retribution for the ills inflicted on society by a certain class of people.”
Commonwealth v. Hall,
Having said this, we are also cognizant that the question before this Court is not the propriety of the comments per se, but the response of counsel. As counsel noted, evidence of the drug and New York connection had been deemed admissible: given the proven facts of the case, the jury was going to be hearing about drugs and the drug motive. Although counsel certainly could have forwarded an objection to the remarks, we do not believe that, as a matter of strategy, he was constitutionally obliged to do so. The fact of the matter is that both appellant and the victim were involved in aspects of the drug trade; the task for the jury was to determine appellant’s responsibility, if any, for the killing. Viewed in this light, it was not unreasonable for counsel to view the reference in the prosecutor’s opening as insufficiently harmful to warrant an objection and the inevitable highlighting of the remark which an objection would have created. Moreover, counsel could reasonably trust in the jury’s ability to follow the court’s general charge emphasizing that the arguments of counsel were not evidence.
III. Penalty Phase Claims
Appellant raises two claims concerning the penalty phase: (1) whether counsel was ineffective for failing to prepare for the penalty phase; and (2) whether appellant waived his right to challenge the jury instruction during the penalty phase. Because we find merit in the first argument and order a new penalty phase hearing, we do not reach the second.
Appellant claims that trial counsel was ineffective for failing to investigate and present mitigation evidence at the penalty phase. More specifically, appellant argues that counsel failed to investigate his background, failed to contact any of appellant’s family members, and failed to present any character witnesses or, indeed, other mitigation testimony at the pеnalty phase. Appellant argues that the evidence that trial counsel *454 should have presented would have been admissible under 42 Pa.C.S. § 9711(e)(8): “any other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.” 12
It is well-established that “[c]ounsel has a duty to undertake reasonable investigations or to make reasonable decisions that render particular investigations unnecessary.”
Commonwealth v. Basemore,
• The question of capital counsel’s duty respecting the investigation and preparation of mitigation evidence has been further explicated in the United States Supreme Court’s recent decisions in
Williams v. Taylor,
In
Wiggins,
counsel’s investigation drew from: (1) tests of Wiggins by a psychologist finding that Wiggins had difficulty coping with difficult situations and had features of a personality disorder; (2) a written Presentence Investigation (“PSI”) describing Wiggins’ “misery as a youth” and observing that he spent most of his life in foster care; and (3) records from the Baltimore City Department of Social Services (“DSS”) documenting Wiggins’ placement in the state’s foster care system.
To determine whether counsel in the case
sub judice
was ineffective we start with a review of the investigation that counsel performed and the mitigation evidence he presented.
See Commonwealth v. Fears,
Q: Did you at any time apply to the judge to have co-counsel appointed to at least help you with the death penalty phase of this case?
A: No.
Q: Did you at any time ask the Court for a death penalty investigator?
A: No, not specifically, no.
Q: Do you recall what you did in regards to the death penalty phase of this case and I am asking about your preparation?
A: In preparation not, quite honestly, not a lot. There wasn’t a lot that I had.
N.T. 10/23/01 at 38. Additionally, the trial court asked counsel if he had ever sat down with appellant and discussed the availability of mitigation witnesses/evidence at the penalty phase, and the relevance of family testimony and information about his background for penalty phase purposes. Counsel responded, “I don’t recall doing that.” N.T. 10/23/01 at 43. It is apparent from this record that counsel undertook little or no affirmative effort aimed at the penalty phase of the trial.
Although counsel engaged in little or no investigation, and introduced no testimonial evidencе in mitigation at the penalty phase, he did argue two record-based mitigation factors to the jury—(1) appellant’s age at the time of the murder, which was stipulated as twenty; and (2) that appellant acted at the *457 substantial direction of another. N.T. 3/28/00 at 857-59. Appellant argues, however, that had counsel conducted a proper investigation, additional and important mitigation evidence concerning appellant’s character and background would have been discovered. Specifically, appellant emphasizes evidence from the remand hearing to the effect that: (1) he suffered an abusive childhood at the hands of his mother and her boyfriend, including that the boyfriend burned his hand so severely that he still bears the scars; (2) he was removed to the care of his grandmother after his drug-addicted mother abandoned him; and (3) he was later institutionalized at age 12 by New York’s Bureau of Child Welfare because his grandmother was unable to control him. N.T. 10/23/01 at 18-19. Appellant’s mother, aunts and grandmother could have testified to these facts. Appellant admits that he never told trial counsel this information, but explained that counsel never asked about his background. Id. at 19-20.
The fact that there was mitigation evidence available concerning appellant’s childhood was later corroborated in a presentence investigation report where the interviewer, Donna Becker-, spoke to appellant’s aunt, Royce Malloy. Id. at 27. Appellant’s aunt stated that appellant was a good child and may have had a different life if only one of his parents had taken an interest in him. Additionally, Ms. Malloy stated that appellant was arrested at an early age, that appellant may have been abused by his stepfather at the age of 10, that appellant’s mother and father had substance abuse problems, and that appellant was placed in a group home by juvenile authorities from ages 12 to 15. Id. at 27-28.
The Commonwealth argues that appellant’s proffer below did not establish a reasonable probability that the result of the penalty phase would have been different. Confining itself to a prejudice argument, the Commonwealth apparently concedes that appellant has satisfied the performance prong of the Strickland/Pierce test. In the Commonwеalth’s view, the two “strongest” mitigators in appellant’s favor-—his age and the alleged duress under which he acted—were argued to the jury, which rejected them. In a brief ipse dixit, the Common *458 wealth concludes that, since the jury rejected the proffered mitigators, they probably would have rejected the undiscovered affirmative mitigation evidence concerning appellant’s background as well.
The trial court’s analysis of the claim is not much more illuminating than the Commonwealth’s. In finding that counsel was not ineffective the remand court noted that it had conducted a colloquy with appellant at appellant’s sentencing at which appellant stated that he had made an informed decision not to testify at the penalty phase, and that there was nothing that he wanted his lawyer to do that counsel failed to pursue. From this exchange, the trial court concluded that trial counsel “prepared for the death penalty phase in accordance with the wishes of his client.” See Trial Court Supp. Op. at 3.
Neither the Commonwealth’s nor the trial court’s analysis is persuasive. The fact that the jury rejected certain proffered mitigators—mitigators supported by a brief argument—dоes not mean that a full preparation of other relevant mitigation evidence might not have changed the result. Moreover, it is not self-evident that the proffered mitigators are objectively “stronger” than evidence of appellant’s background. Counsel’s duty encompasses pursuit of all statutory mitigators of which he is aware or reasonably should be aware, unless there is some objective, reasonable ground not to pursue the circumstance (such as when it might open the door to harmful evidence). Finally, we note that this was a close case in terms of the penalty. The Commonwealth proved a single aggravating circumstance. Counsel’s task (at that phase) was to attempt to convince at least one member of the jury that there was at least one mitigating circumstance which should be accepted and weighed against the aggravator. We cannot simply assume, as the Commonwealth would have us do, that all of the jurors would have rejected any proffered mitigator merely because they rejected other mitigators which were very briefly argued.
The trial court’s analysis likewise does not justify its denial of relief. The fact that appellant was satisfied with his counsel *459 at the sentencing hearing colloquy in no way proves that trial counsel’s investigation and performance satisfied Sixth Amendment standards. Appellant is not a lawyer, nor was he in a position to know whether his counsel had performed competently. The measure of effectiveness is not whether one’s client appeared satisfied at the time. A client is entitled to trust in the fact that his attorney will know what investigation to undertake, what leads to pursue, and what evidence to look for. It is one thing for a client to fail to cooperate when asked pertinent questions. But it is quite another if the lawyer either fails to realize, or realizes but fails to pursue, a course of investigation which the Sixth Amendment objectively dictates.
The fact that neither the Commonwealth nor the court below articulated a persuasive basis to uphold the denial of relief does not mean that appellant sustained his burden of proving counsel ineffective, of course. Nevertheless, we have little difficulty concluding that appellant has proved the performance prong of
Strickland
(arguable merit and lack of reasonable basis in Pennsylvania parlance). We recognize that the evidence presented by appellant at the evidentiary hearing was not so strong as the foregone “smoking gun” mitigation evidence at issue in
Williams
and, to a lesser extent,
Wiggins.
Nevertheless, appellant did prove that there were certain factors in his background which were easily discoverable and which could have been forwarded in mitigation had counsel undertaken even a minimal investigation. Additionally, counsel’s overall “preparation” for the penalty phase was clearly lacking, as it consisted of minimal meetings prior to trial with no follow up and no production of testimonial evidence at the penalty phase. The onus is not upon a criminal defendant to identify what types of evidence may be relevant and require development and pursuit. Counsel’s duty is to discover such evidence through his own efforts, including pointed questioning of his client. Accordingly, appellant’s claim of trial counsel ineffectiveness has arguable merit.
See, e.g., Fears,
It is well-settled that the reasonableness of a failure to investigate and present certain mitigation evidence can depend upon the information given to counsel by the defendant in the course of counsel’s investigation.
See Commonwealth v. Williams,
In this case, it is clear that the failure of counsel to pursue mitigation evidence of his client’s background was not based upon strategy or any other objectively reasonable factors. The testimony at the remand hearing demonstrated that counsel failed to so much as conduct a cursory review of appellant’s backgrоund. This is not a case where trial counsel had attempted to elicit relevant mitigation information from his client and family members, only to have childhood abuse, family problems, or other potential mitigation evidence within their knowledge not be mentioned.
Contrast Bond,
*461 Q: Did you ever sit down with him and, you know, say if we get to the point where they are seeking the death penalty against you, we ought to try to get some people in to say good things about you. Is your mother around, is your grandmother around, do you have any other relatives to come down here and say you are a nice guy or you were a nice guy and give us some more background?
Did you ever talk to him at all about witnesses like that?
A: I don’t recall doing that.
N.T. 10/23/01 at 43. Counsel’s inaction was not caused by appellant and his family’s failure to cooperate and supply such information. Although counsel cannot be ineffective for failing to investigate evidence which he had no reason to know existed, counsel still has an obligation to cоnduct a reasonable investigation to uncover such information.
We now turn to whether trial counsel’s deficient performance resulted in actual prejudice to appellant. To demonstrate prejudice, appellant must show that there is a reasonable probability that, but for trial counsel’s errors, the result of the proceeding would have been different.
See Strickland,
As noted above, the Commonwealth pursued a single aggravating circumstance at the penalty phase—that appellant committed the murder in the perpetration of a felony, namely kidnapping. In assessing prejudice, that single aggravating circumstance must be contrasted with the two mitigating
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circumstances actually presented as well as the mitigating circumstance that counsel should have pursued—that appellant . had been abandoned by his mother at a young age, abused by his mother’s boyfriend at the age of 10, that his mother and father had a substance abuse problem and that he was institutionalized from the age of 12 until he was 15. Although we recognize that the unpursued evidence in this case is not the strongest, we further note that trial counsel’s presentation at the penalty phase included no affirmative evidence at all, but only a brief argument and a stipulation. Such a performance, which was not motivated by any strategic decision, left the jury with a dry assessment of appellant’s individual circumstances. In short, it is not just the failure to present evidence of appellant’s background which concerns us, but the fact that the failure occurred in a case where there was little effort to personalize appellant for the jury. Indeed, personalizing appellant’s background may have made one or more of the jurors more likely to aсcept the other mitigating circumstances which were pursued. We are satisfied that it is probable that at least one juror would have accepted at least one mitigating circumstance and found that it outweighed the Commonwealth’s single aggravating circumstance. Thus, had the jury heard testimony and been able to consider all of the mitigation evidence and argument together, there is a reasonable probability that at least one juror would have struck a different balance and voted not to impose the death penalty.
See, e.g., Wiggins,
Notes
. 18 Pa.C.S. § 2901.
. 18 Pa.C.S. § 903.
. 18 Pa.C.S. § 2502(a).
. 42Pa.C.S. § 9711(d)(6).
. Appellant notified the trial court that he was going to pursue three mitigating circumstances: (1) the age of the defendant at the time of the crime, 42 Pa.C.S. § 9711(e)(4); (2) the defendant acted under the substantial domination of another person, 42 Pa.C.S. § 9711(e)(5); and (3) any other evidence of mitigation concerning the character and record of the defendant and the сircumstances of his offense, 42 Pa.C.S. § 9711(e)(8). However, trial counsel actually argued only the first two mitigating circumstances to the jury. See N.T. 3/23/00 at 857-60.
. 42 Pa.C.S. § 9711 (c)(l)(iv).
. We have reordered appellant’s claims for purposes of clarity.
. Rieara had earlier been interviewed by the police in May, 1998 and July, 1998 but did not make a statement regarding the murder during those interviews.
.
Miranda v. Arizona,
. Detective George did not have a waiver card on him when he picked appellant up in Harrisburg. Therefore, although appellant was advised of his Miranda rights on the way from Harrisburg, he did not sign the waiver card until he arrived in York. N.T. 3/13/00 at 20.
. At the time of trial, there was an outstanding warrant for Murphy’s arrest but he had not been apprehended.
. As with appellant’s claims of ineffective assistance in the guilt phase, this claim of ineffective assistance at the penalty phase will be considered on direct appeal because it was addressed at appellant's evidentiary hearing. Therefore, it is reviewable under the Bomar exception to this Court’s Grant rule.
. The details of Williams’ childhood included: his parents had been imprisoned for the criminal neglect of Williams and his siblings; he had been severely and repeatedly beaten by his father; he had been committed to the custody of the social services bureau for two years during his parents' incarceration; and he was returned to his parents’
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custody after they were released from prison.
See Williams, 529
U.S. at 395-96,