*1 terms, regula- to the its by applies, legislation of special tion Here, apparent it is of school districts. the affairs tion of legisla- special amount to of Act 45 challenged provisions Pennsylvania III, 32 of Article Section tion prohibited 761 A.2d Hickok, Pa. at Accord Constitution. 1136.10 re- Court of the Commonwealth the order
Accordingly, tribunal for to that is remanded versed, the matter and opinion. with this consistent further proceedings EAKIN, BAER, and Justices Chief Justice CASTILLE join opinion. MELVIN TODD, ORIE McCAFFERY Appellee Pennsylvania, of COMMONWEALTH v. MARTIN, Appellant.
Bradley Appellant Pennsylvania, Commonwealth v.
Bradley Martin, Appellee. Pennsylvania, Appellee Martin,
Bradley Appellant. Pennsylvania. Supreme Court 2, 2005. Submitted June Aug. 2010. Decided Sections holding, address whether we need not 10. Because of our 1113(b.2) whether legitimate purpose, or state serve 1607.1 authority. delegates legislative impermissibly 1607.1 Section *6 Walters, Flotron, K. Charles Christopher Adrienne Caroline L.L.P., Becker, Smith, Bradley for Philadelphia, Reed Lyman Martin. McAteer, Stoycos, Ross Amy Zapp,
Robert William William General, Eshbach, for Attorney PA Harter Office Jonelle Pennsylvania. BAER, TODD, SAYLOR, EAKIN, CASTILLE, C.J., and MELVIN, and JJ. McCAFFERY ORIE
OPINION BAER.1 Justice from the order of cross-appeals case involves capital
This which denied County, Pleas of Lebanon the Court Common the Post Conviction phase claims under Bradley guilt 9541-9546, a (PCRA), granted §§ but Relief Act Pa.C.S. was that trial counsel hearing grounds new on the penalty reassigned 1. matter was to this author. This failing present mitigating ineffective for to investigate follow,we evidence. For the reasons that affirm. History and Procedural
Facts 15, 1993, serving while sentence at the September On Martin Facility, granted Lebanon Correctional was County Upon two-hour leave the the correc- pass prison. leaving tional met with whom facility, Carolyn King, he Martin was King Martin went to the home of romantically involved. Goodman, male, was a Guy 74-year-old, who homosexual who written, in prison. had and visited Martin When telephoned, Martin asked money, responded Goodman Goodman money exchange he would for sex. Martin hit give wrists, Goodman over the head with a vase and bound his *7 ankles, so he Martin escape. King and neck could not and and placed plastic bag bathrobe over Goodman’s head and sealed the duct took bag tape. They with Goodman to the basement, securely, tied him him to suffocate. and left home,
Martin then King and looted Goodman’s his stealing cards, away checkbook and credit in They and drove his car. used Goodman’s checks and credit cards to fund their west- apprehended ward travel. in King Police Martin and Arizona. Martin had his person, Goodman’s credit card on and Good- man’s blank checks and social card were security found inside being rights, his vehicle. After advised of her King gave statement herself and Martin in inculpating Goodman’s mur- der. after Similarly, being advised of constitutional rights, Martin gave an statement to FBI incriminating Special Agent Arizona, Paul Vick. While still custody and after have Miranda2 been given warnings, gave Martin also a statement County to Lebanon he detectives in which asserted that he and King responsible were for Goodman’s death. Martin made an incriminating additional statement to a corrections Prison, officer at County the Lebanon admitting the mur- der. Arizona, 436, 1602,
2. Miranda v. 384 U.S. 86 S.Ct. L.Ed.2d 694 (1966). mo- a severance jointly, after were tried King and Martin suppress a motion to also filed Martin denied. tion was Detectives, County Lebanon made to incriminating statements when drugs influence of under the that had been asserting suppres- court denied The trial given. were statements King and found Martin jury subsequently The motion. sion assault, robbery, murder, aggravated degree of first guilty escape, apprehension, to avoid taking, flight by unlawful theft conspiracy. and aggravating three jury found phase,
At the penalty
the com-
during
of the homicide
perpetration
circumstances —
means of
offense
commission
felony,3
mission of a
involving
felony
convictions
torture,4
history
significant
and
mitigating
no
jury
The
found
of violence.5
the use or threat
sentenced
King
were
Both Martin
circumstances.6
2,
December
1998. Common-
affirmed
This Court
death.
(1998).7
331,
The United
L.Ed.2d se PCRA 14, 2000, pro filed the instant February On The stay of execution. motion emergency and an petition Martin’s PCRA filed a motion to dismiss denied, execution was stay motion for petition. of intent to dismiss issued a notice court No. to Pa.R.Crim.P. *8 petition, pursuant se PCRA pro Martin’s 9711(d)(6). § 3. 42 Pa.C.S. 9711(d)(8). §
4. 42 Pa.C.S. 9711(d)(9). §
5. 42 Pa.C.S.
mitigating
following
circum-
King presented the
and
6. Both Martin
9711(e)(4);
offense,
§
and
42 Pa.C.S.
age
time of the
stances:
at the
character,
records,
concerning
and
mitigation
their
other evidence of
offense, id.,
9711(e)(8).
§
the circumstances
aggravating
jury improperly found the
the
Court concluded that
7. This
aggravating circumstance.
and invalidated that
circumstance of torture
jury had found no
As the
King,
Martin
the denial of his motion for
of execu
appealed
tion;
denial
granted
stay pending
this
vacated the
and
Court
petition.
review of Martin’s amended PCRA
See Common
(2000).
Martin,
145,
wealth v.
561 Pa.
The court divided Martin’s issues into three catego- PCRA (1) ries: the parties agreed disposed issues could be of as law; (2) questions of the argued issues could law; be determined as questions and issues that could only be court an following considered evidentiary 1/3/02, at hearing. Opinion, See PCRA Court 11-13. The PCRA court dismissed all of Martin’s the first issues and categories second as being previously litigated or without merit, but deferred one ineffectiveness to an claim evidentiary id., at hearing. See 46-47. 4, an
Following evidentiary hearing on March issues, PCRA court dismissed all with of Martin’s the excep- tion that it found merit the claim to that trial counsel was failing investigate ineffective for present mitigating evidence that Martin diagnosed was with a mental illness that him both during affected and after Goodman’s murder. See 3/4/04, Opinion, Court 77. The court granted him a new on sentencing hearing ground. this a timely
Martin filed appeal notice from denial of guilt relief. phase The Commonwealth also filed timely appeal, challenging grant sentencing a new hearing. raises six issues on following appeal:
1. trial was Whether counsel ineffective for failing file a to suppress incriminating
motion statements during made interrogations custodial where Martin in- his Fifth right voked Amendment to remain silent counsel present during have subsequent interrogations.
175 to inves- failing ineffective for trial counsel was 2. Whether pres- and history mental health Martin’s personal tigate during guilt phase of provocation ent a defense trial. key areas ineffective other trial counsel was
8. Whether of trial. by representation effective Martin was denied
4. Whether Penn- Public Defender’s Office County the Lebanon qualified standards of failure to maintain sylvania’s counsel. jurors selecting County’s practice
5. Lebanon Whether a jury tax rolls denied per capita from its only community. of the from a fair cross-section violation and a arbitrary capricious it was 6. Whether attorney the district Amendment for Eighth of the life agreement imprisonment pre-trial plea reach a acceptance Martin, plea King’s on for but condition deal, which she refused. of the same Brief, raises one The Martin’s at 3-4. See trial counsel finding erred in the PCRA court issue: whether and present failing investigate adequately ineffective Brief, at 4. mitigation evidence. Commonwealth’s relief, our stan from the denial of PCRA appeal “On court are findings whether the of the PCRA dard of review is error.” legal the record and free of Common supported 719, Abu-Jamal, 724, Pa. 833 A.2d wealth v. Breakiron, Pa.
(citing Commonwealth (2001)). court must determine whether 97 n. 4 We claims. relief, guilt phase dismissing denied properly properly whether Martin was we must determine Additionally, hearing. sentencing new granted relief, must petitioner to be for PCRA eligible
In order that his conviction of the evidence by prove preponderance more of the enumerated from one or or sentence resulted forth 9543(a)(2)(setting § at 42 Pa.C.S. circumstances found PCRA). Further, the peti- requirements the eligibility in his PCRA issues raised that the tioner must demonstrate *10 have not petition been or waived. previously litigated Id. at 9543(a)(3). § An issue previously has been if “the litigated highest appellate court in which the petitioner could have had review right as matter of has on the ruled merits of the 9544(a)(2). § issue.” Id. at A PCRA claim is waived “if the petitioner trial, could have it raised but failed to do so before trial, review, at during unitary on or in a appeal prior state 9544(b). postconviction proceeding.” § Id. at Additionally, we no longer apply the relaxed waiver doctrine in capital Albrecht, PCRA appeals. 31, Commonwealth v. 554 Pa. 720 693, (1998). A.2d 700
Many of allege Martin’s issues the ineffective assis tance of counsel. It is well-established that pre counsel is effective, sumed and the defendant bears the burden of prov ing ineffectiveness. 119, Commonwealth v. Cooper, 596 Pa. 655, (2007). 941 A.2d 664 To overcome this presumption, Martin must satisfy a three-pronged test and demonstrate (1) that: the underlying merit; substantive claim arguable has (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her act; actions or failure to (3) and the petitioner suffered prejudice as a result of coun sel’s deficient performance. (Michael) Commonwealth v. Pierce, Pa.186, 203, (2001). 567 786 A.2d 213 A claim of ineffectiveness will be if denied the petitioner’s evidence fails any meet of these prongs. Id. at 221-222.8 Grant,
In
48,
Commonwealth v.
(2002),
572 Pa.
Continuing his merit arguable analysis, Martin avers that later, 7,1993, two on days October after been having separate- Miranda ly form, advised rights a waiver signing he video-taped made a County detectives, confession Lebanon who had traveled to to question Arizona him. He contends *12 that “the Lebanon County took of police advantage same [the] Fifth Amendment in violation their obtaining confession.” Brief, at 22. Martin concludes that this video-taped confession, which was ultimately played trial, for the jury initial Edwards by was the tainted that violation occurred the during interrogation Thus, conducted Vick. Agent he however, right infra, explained appeal, As to counsel. on direct at a the capital appeals applied, time when doctrine of waiver relaxed Martin contended that the admission of his violated the confession Fifth right Amendment to counsel. reports 12. These F.B.I. were attached as Exhibit 22 to Martin’s PORA petition. Vick, however, Agent 13. These statements to never were admitted at Martin’s trial. litigate to failing ineffective for maintains, counsel was trial detec- County to Lebanon his confession to suppress motion his Fifth violated that the confession the grounds tives on evidence counsel, to offer failing and for to right Amendment claim. of such hearing support at the suppression ineffectiveness basis prong the reasonable Relating to reasonable had no test, that trial counsel Martin submits on his confession of suppression to seek strategy failing F.B.I. the aforementioned because grounds Fifth Amendment counsel, intro- but were never to trial were available reports Martin contends Finally, suppression hearing. at his duced test the ineffectiveness of prejudice prong that he satisfied the jury that the would probability there is a reasonable because murder had his confes- degree him of first not have convicted suppressed. sion been was previously that this claim
The
contends
Commonwealth
that he was
argued
where Martin
on direct
litigated
appeal,
incriminating statements
a new trial because his
entitled to
Fifth
he invoked his
unlawfully after
had been obtained
Alternatively,
Common-
right
to counsel.
Amendment
it fails
claim is meritless because
asserts that Martin’s
wealth
assistance
demonstrating ineffective
the standard for
satisfy
that
argues
the Commonwealth
Specifically,
of counsel.
on
Agent
Vick
referencing Martin’s statement
report
F.B.I.
that Martin initiated
clearly
establishes
October
acts.
It maintains
about his criminal
communication
Martin;
only
rather
com-
interrogate
Vick did not
Agent
to changing
was in relation
by Agent
munication initiated
Vick
suffering
because he was
of Martin’s handcuffs
placement
that the conduct
The
concludes
discomfort.
with the
entirely
was
consistent
the law enforcement officers
to initiate conversations
allowing
law
defendants
prevailing
their Fifth Amendment
they
after
invoked
with
even
police,
circumstances,
the Common-
these
to counsel. Under
right
examines the substance
that if this Court
wealth maintains
merit.
claim,
arguable
it for lack
we should dismiss
*13
begin by rejecting
We
the Commonwealth’s contention
previously
Martin’s claim was
on direct
litigated
appeal.
challenged
While Martin
the admission of his confession on
appeal,
direct
that it
asserting
violated the Fifth Amendment
because it
in
given
was
the absence of counsel after Martin
counsel,
had
right
invoked his
the direct appeal claim was
not
couched
terms of ineffective assistance of counsel. See
Collins,
Commonwealth v.
585 Pa.
In this
the transcript from the suppression hearing
and the trial record do not
any
contain
evidence that Martin
invoked
right
to counsel and privilege against self-
incrimination; nor is there
support
the record for Mar-
tin’s account of the circumstances under which he
an
gave
incriminating statement to the federal agent. Accordingly,
Martin has failed to establish a violation of his Fifth Amend-
ment rights.
King,
subsequent videotaped statement to the Lebanon County de- tectives, our Court on direct further appeal found that Martin was rights, them, advised of his waived and that there was “nothing improper concerning the circumstances under which this statement given.” was Id. at 774-75.
Unlike the substantive claim raised on appeal, direct currently argues that trial counsel was ineffective for failing to base the suppression motion on Fifth Amendment grounds, and for failing such support claim presenting the F.B.I. reports Thus, the suppression hearing. the claim raised in petition begins where our decision on direct appeal left off. As this collateral claim is distinct from the claim litigated on direct appeal, we decline the Common- *14 that the to merits review on the basis deny invitation wealth’s litigated. claim was previously however, claim, the the
Examining merits of collateral prove he failed to we Martin’s contention because has reject violation, thus, derivative Edwards cognizable an and his noted, of an claim Martin’s claim ineffectiveness fails. As entirely upon his construction Edwards premised violation asserts, which, taint F.B.I. he reports, the aforementioned Vick, well as Agent ed statement to as inculpatory his detec County he made to Lebanon subsequently confession such F.B.I. days later. Martin’s construction of tives two however, is, strained. reports that on report, by Spilsbury, F.B.I. noted Agent
The first 5, 1993, initially Lopez he Sellers and Agents October and The Police Department. Martin at the Yuma encountered from rights Martin would read him his agents they told that to clearly right F.B.I. Martin invoked his the standard form. to he “that he did wish to talk responded counsel when not attorney.” he an anything spoken about until had with anyone agents “identifying refused to with provide Martin also F.B.I. FD- interview was terminated. information” form, transcribed 10/12/93. Vick, that at by Agent The second F.B.I. stated report, evening, 7:45 that same he looked into approximately p.m. located that detention cell where Martin was and observed his having Martin to be discomfort from appeared suffering Martin, his hands cuffed behind back. Vick Agent approached neck and agent pain; who told the that he had shoulder agent that it could have been caused the automobile replied volun- that Martin’s Martin preceded apprehension. accident had the time accident and high teered that he been the incident. then Agent did not remember much of Vick that earlier say anything Martin he had refused reminded Agent an Vick then uncuffed requested attorney. and had in the front. hands from and re-cuffed them behind further that at Martin point, The indicates that report Vick, not he would to talk to but willing Agent stated that be agent questioned day (presum- to the who had him earlier that Sellers, ably Agent one or among Agents Spilsbury, Lopez). voluntary Vick told that if he to make a Martin wanted statement, would him of his first advise constitution- agent advised, al Martin to be he rights. agreed repeated so statement, voluntary wanted to make a and asked for a soda detention, to drink. then Martin was removed from moved room, an interview Another given agent joined soda. them Agent to witness the proceedings. reviewed encounter, Vick’s written of the foregoing signed version acknowledgment, was read his from the stan- rights F.B.I.’s *15 form, dard verbally by and both and that responded signature them; he understood he then and signed read the waiver Thereafter, portion of the form. an gave Martin inculpatory form, statement. F.B.I. FD-302 transcribed 10/14/93. discussion,14 In its merits the court Ed- recognized PCRA wards’ prohibition against interroga- further police-initiated tion of a suspect custody in who has invoked his and rights noted that “clearly custody” Martin was in when he to spoke Agent Vick. The then court focused on whether the encounter with Agent interrogation. Vick amounted to the Based on F.B.I. reports proffered, Martin the court that concluded Agent Vick’s in approaching actions Martin and to speaking him therefore, did not interrogation, constitute Ed- no view, wards been violation had In the it established. court’s Martin, Vick, was Agent not who initiated actual discussion murder; indeed, about the even after the agent reminded Martin of his previous rights invocation of his to silence and counsel, incident, to expressed willingness discuss the was re-read warnings Miranda the by agent, and explicitly waived his rights verbally by both signing the F.B.I.’s standardized form. The court waiver PCRA further conclud- engaged analysis notwithstanding 14. The PCRA court in a merits the claim, fact that it found it the ineffectiveness as relates to the confession detectives, court, County litigated. made to previously Lebanon The however, further concluded that the ineffectiveness claim as it relates Agent the previously litigated. statements Martin made to Vick was not The portion PCRA court that the claim ruled this did not entitle Agent Martin to relief because statements made to Vick were not trial; admitted at no thus constitutional violation could arise. intimidation coercion or any not establish Martin did ed that Agent with of his encounter circumstances to the regard with that the 3/5/04, at 24-28. We find Opinion, Court Vick. PCRA is regard supported in this holding court’s error. legal free from record and is 516, A.2d 200 Pa. Santiago,
In Commonwealth key holdings United (1991), summarized this Court Fifth Amendment concerning the Court cases Supreme States as follows: to counsel right Miranda, Court determined Supreme States
In United privilege the Fifth Amendment protect that order inherently compelling from the against self-incrimination states an individual interrogation, “[i]f of custodial pressures must cease interrogation attorney, he wants an that Edwards, In the Court attorney present.” until an he right, asserts the suspect ... once a determined counsel has been “until interrogated not be further may ” him,.... v. Mis Recently, [Minnick made available to 112 L.Ed.2d 111 S.Ct. 498 U.S. sissippi, by holding rule ], clarified Edwards the Court cease, must interrogation is requested, that “when counsel without counsel interrogation reinitiate may and officials not with his not the accused has consulted whether or present, *16 attorney.” Shatzer, (citations omitted); Maryland see also v. at 201
Id. (2010) - U.S. -, -, L.Ed.2d 1045 130 175 S.Ct. (Miranda coun to silence and rights force to gives protective compelled privilege against from Fifth Amendment arising sel — U.S. -, -, Powell, self-incrimination); Florida (2010) (same). 1195, 175 L.Ed.2d S.Ct. Edwards v. Arizona Com- further addressed
This Court (2006): Edwards, A.2d 1139 588 Pa. monwealth v. any during counsel at time requests who defendant “[A] further subject interrogation is not to custodial interview to available until counsel has been made the authorities omitted). (internal marks quotation at 1150 him....” Id. his However, after a defendant invokes given “a confession the defendant: not be where suppressed to counsel need right (1) communication, initiated further exchanges, or conversa- tions with the police, knowingly and intelligently (internal counsel.” Id. waived the to right marks quotation omitted).
After careful review of the F.B.I. reports upon which Mar- claim, tin premises his we with agree the PCRA court that Agent Vick’s actions did not amount to an interrogation, and that Martin voluntarily initiated the communication that to led Miranda waiver and the series of statements he explicit his now challenges. found, As the PCRA court although Agent Vick approached Martin to about inquire he was pain suffering as a placement handcuffs, result of the of his it was Martin who willingness evidenced a to discuss murder with Thus, Agent Vick. we find that Martin’s state- incriminating Agent ments to Vick did not violate Fifth Amendment right to speak to authorities only presence of counsel. token,
theBy same Martin’s confession to County Lebanon detectives does not suffer from the constitutional “taint” that he alleges. Once Martin initiated the contact with Agent Vick and voluntarily himself, incriminated he effectively waived his Fifth Amendment right speak to only authorities in the presence counsel. Significantly, the confession Martin gave to the Lebanon County detectives was preceded by an inde- Miranda waiver. pendent and explicit N.T., 10/10/94, at 913— 14. Martin does not contend anything more was re- quired; rather his entire argument regarding the confession is premised on the alleged unconstitutional nature of the encoun- Moreover, ter with Agent Vick. reasons, for obvious the F.B.I. reports upon which Martin relies make no reference to the purported interrogation by County detectives, Lebanon demonstrate, Martin does not independent of the encounter Vick, with Agent how the admission of the confession to County Lebanon detectives implicates Fifth Amendment. Accordingly, we conclude that there is arguable no merit to Martin’s claim that trial counsel was ineffective for failing seek suppression of his confession on Fifth Amendment *17 grounds, and for failing to offer evidence in support such claim at the suppression hearing. Defense Present Provocation
Failure to was ineffective trial counsel contends that Martin He jury. to the defense a provocation to failing present Good merit because arguable possesses that his claim argues a Post-Traumatic Stress triggered advance man’s homosexual he suffered as (PTSD) abuse of sexual flashback Disorder He primarily reflection. child, him of cool incapable making Kessel, Julie testimony psychiatrist expert relies upon to response Martin rage experienced that the who testified Martin his PTSD. stemmed from sexual advance the victim’s to failing basis for had no reasonable that counsel submits had his mother health evidence because the mental investigate and of the names an extensive list with counsel provided had provided institutions that of individuals addresses depress health treatment for PTSD with mental Martin prejudiced that he was argues Finally, ion.15 of a provocation presentation because the counsel’s omission degree from first reduced his crime would have defense specific by negating manslaughter voluntary murder to kill.16 intent to of ineffec- Martin’s claim argues that
The Commonwealth psychiatric his own merit because arguable lacks tiveness Kessel, validity provocation of a rejected the Dr. expert, Goodman’s surrounding the facts It asserts that defense. pro- in a collateral murder, challenged now be which cannot obtain was to the clear motive demonstrate ceeding, and deliber- acted with premeditation and that Martin money, circumstances, these the offense. Under committing ation in be deemed that counsel cannot concludes the Commonwealth at trial. defense provocation failing present ineffective for hearing presented at the specific The mental health evidence 15. 32-33, single issue length, it relates to the at as is described infra appeal. raised in the Commonwealth’s individual person who kills an provides that "[a] 16. The Crimes Code voluntary manslaughter if at the justification commits without lawful passion acting and intense killing he under a sudden time of the killed; (2) by: or resulting provocation the individual from serious kill, negligently or acci- but he whom the actor endeavors another killed.” 18 Pa.C.S. dentally death of the individual causes the 2503(a). § *18 In determining whether there provoca was sufficient tion to create uncontrollable passion a reasonable person, we determine whether the killer actually acted the heat of whether passion, lead provocation directly to the slaying the person responsible for the provocation, whether the killer had sufficient cooling off time. See Commonwealth v. McCusker, (1972). 448 Pa. If any element is missing, provocation defense fails. Id. issue,
In denying relief on this the PCRA court held that Martin “did not act in the heat passion in the commission of the actual homicide and that the provocation did not lead directly to the slaying Goodman.” PCRA Court Opinion, 3/4/2004, at 33. It found that although Martin’s own expert, Kessel, Dr. opined that while Goodman’s homosexual advance triggered (PTSD) a Post-Traumatic Stress Disorder flashback of sexual child, abuse Martin suffered as a she did not find that such event rendered Martin incapable of cool reflection so support as to a provocation defense.
In accordance with review, our standard of we find that the PCRA court’s factual finding regarding Dr. Kessel’s testimony supported record, by the and that legal conclusion drawn therefrom is not erroneous.
The record supports the finding that Dr. Kessel believed Martin’s rage led him to hit Goodman with the vase. See N.T. 9/13/02, PCRA Hearing, at 158. Significantly, however, this was not the cause of Goodman’s death. The coroner testified at trial that Goodman died of asphyxiation from the bag taped around his head. Specifically, Dr. Kessel stated:
I believe that the rage extended beyond the blow with the vase to some extent. I belief that he was very angry. However, I believe that subsequent to his assault on Mr. Goodman, his rage changed into a desire to tie him up and steal money, his more interest in doing that. ISo think to some degree he was able to cool off to some degree. However, I do believe that the rage continued but diminish- ed in its he intensity as tied Mr. Goodman up.
Id.
Dr. Kessel further stated: his disorder traumatic stress post that as [sic] I believe substan- disorder did personality as his as well dysthymia But I don’t his conduct. to conform ability tially impair passion that the they impaired, moment that at that believe was the provocation as a result of occurred that had run. I think long in the for his behavior motivator primary I do diminished. that that had passed time had enough that to Mr. initial assault however, the assault the think, reaction emotional of his extreme product was the Goodman *19 the advance. approach, to the at 164.
Id. case, found, surrounding the facts court the PCRA As advance, sexual to Goodman’s response Martin’s including See PCRA a defense. support provocation do not simply 3/4/04, cannot be deemed at 35. As counsel Opinion, Court claim, argument a meritless this to raise failing ineffective for fails. “Key Areas” of Trial
Ineffectiveness Other a asserts, elaboration, he is entitled to that Martin without of key in other areas counsel was ineffective new trial because was inef- that trial counsel argues Specifically, trial. and escape to the consolidation consenting fective for: for being charged separately despite charges, homicide direct- offense; cautionary instruction failing request to each stolen escape, receiving evidence of jurors interpret not to ing propensity as evidence of or violation probation property, his un- behavior; to evidence of failing object to criminal violations; work-release prior and charged drug possession visits previous that Martin’s object testimony to failing were unauthorized. See work-release during to Goodman Brief, 36-38. Martin’s generally un- the substantive issues we addressed appeal,
On direct
771-2.
King, claims of ineffectiveness. See
derlying these
were
reason,
that these claims
the PCRA court found
For this
1/3/02, at 38-
Opinion,
See PCRA Court
litigated.
previously
ineffective-
are framed in terms of
instant claims
40. As the
counsel, however,
those raised
are distinct from
they
ness
on direct
and have not been
appeal
previously litigated. See
(term
Collins,
Commonwealth v.
Recognizing decision to consolidate separate indictments is matter left to the sound discretion of the trial court, this Court held on direct appeal the trial court did not abuse its discretion by denying motion to sever the indictment charging him with escape from the indictment him charging with homicide. King, at 772. We found Mar tin’s was escape part of a natural chain of events which lead *20 murder, Goodman’s and therefore single stemmed from a episode, criminal warranting consolidation of the escape and homicide charges. Id.
This Court further rejected Martin’s claim that trial court erred admitting evidence of his drug possession and prior violations of work-release conditions because such evidence involved uncharged prior offenses. Id. We held that the reference to Martin’s possession marijuana was inadver tently elicited when witnesses described conversations with murder, Martin after the while other comments were elicited on cross-examination by defense counsel. Id. We found the comments were innocuous in the context of the entire trial and no warranted relief. we Finally, ruled that evidence of Mar tin’s previous visits to Goodman’s residence while on work- release was relevant to show a relationship existed between the two men prior to the murder. Id. issues, Martin underlying on the rulings our
Considering arguable have these claims that failed to demonstrate has assistance Instead, asserts ineffective baldly he merit. his argu- to support counsel, explanation no other but offers satisfy burden to to meet his Martin has failed ment. As test, is warranted. no relief of the Pierce merit arguable prong Arising From Lack of Ineffectiveness Capital for Counsel Standards County procedure Lebanon contends that the Martin facing capital represent counsel to defendants for appointing to effective right him the denied charges “presumptively” his trial that at the time He maintains assistance of counsel. stan had no statewide Pennsylvania appointed, counsel was training appointed or governing qualifications dards Instead, mat administrative case. such capital counsel in Additionally, counties. left to individual ters were him, as such made available the lack of resources challenges investigators. and case funding experts capital centralized heightened procedural denial of the He submits that under rights trials violated required capital safeguards to the United States Amendments Eighth the Sixth and Pennsyl Constitution, provisions the corresponding and finding to the court’s Responding vania Constitution. waived, that in his PCRA Martin asserts that this claim was any respecting he counsel ineffectiveness alleged petition, Further, he reiterates waived. might claim that be deemed appeal in the case on direct that trial counsel remained inef counsel not to raise this directed specifically that Court appeal. of counsel claims fective assistance properly that the PCRA court argues The Commonwealth is viewed as To the extent the claim found this claim waived. Lebanon Coun- Pennsylvania challenge a constitutional standards, and not a ty’s capital appointment lack of counsel *21 that such claim argues it challenge performance, to counsel’s in the have been raised earlier waived because it could is counsel’s challenges the issue To the extent proceeding. submits that the the further Commonwealth performance, 190 in allege
claim Martin failed to his is waived because PCRA failing that counsel was ineffective for to raise this petition merits, to the the that argues claim. As not to cite any Martin is entitled to relief because he fails that the of authority supporting specific the notion absence capital counsel standards amounts to a constitutional viola- that, Finally, recognized tion.17 the Commonwealth asserts as court, litigator trial counsel was an experienced twenty years practical who and had experience, had over trials, jury numerous civil and criminal including conducted least four murder cases. prior we are claim
Initially, not convinced Martin’s is waived. Although pose does not his contention as a typical claim, Strickland it on the notion that premised trial counsel, through circumstances that were beyond control Commonwealth, but were the which responsibility was course, objected rendered ineffective. have Of counsel could at the trial level that the to him resources made available were or inadequate that he for qualifications appoint- lacked ment, Counsel, assuming he that to be believed true. howev- er, objections, any did not forward such claim along thus these lines was unavailable direct appeal. on claim, however, current does necessarily not de- trial pend upon acknowledging counsel that the circumstances of his him appointment rendered “presumptively” ineffective. assessment, Even if trial counsel agreed with that he could not raise claim appeal such a on direct because in he remained trial, Subsequent 17. adopted relating this Court Martin's standards appointment involving to the of defense counsel in cases the death penalty. qualifications (setting See Pa.R.Crim.P. No. forth cases); capital in generally defense counsel see also Commonwealth v. (2008) Boxley, Pa. (discussing 746-47 this 801). adoption Court’s No. Pa.R.Crim.P. The mere fact that this recently adopted governing qualifications Court has standards capital appointed defense counsel cases does not mean that counsel cases, standards, prior qualify who would not under those must have —Hook, U.S. -, -, Bobby been ineffective. See Van 130 S.Ct. 13, 17, curiam) (counsel's (per may L.Ed.2d conduct not against subsequently-imposed be measured Bar American Association pausing they "without standards even to consider reflected whether trial”). prevailing practice professional at the time of
191
not to
Martin
directed
specifically
and because this Court
case
Martin suffi-
that
We conclude
claims.
raise ineffectiveness
institutional
both the
petition
in his PCRA
ciently developed
performance,
trial counsel’s
he believed affected
impediments
in
lack of experience
specific
trial counsel’s
as well as his
this individ-
pose
not squarely
Martin did
cases. While
capital
of
ineffectiveness
Strickland
in
sounding
ual claim as one
meaning-
denied
counsel,
that he was
clearly alleged
the claim
he described.
circumstances
through
ful representation
review
circumstances,
forego
merits
we decline
these
Under
claim is waived.
that the
on
basis
claim,
we conclude
the merits of the
Examining
Martin poses
relief. Because
is not entitled to
a
dependent upon
not one
and
systemic challenge,
issue as a
one
any
respecting
ineffectiveness
of trial counsel
showing
Cronic, 466
v.
United States
the claim
deficiency,
implicates
(1984)
2039,
657
648, 658-59,
80 L.Ed.2d
104 S.Ct.
U.S.
circumstances, including
limited
that there are
(recognizing
counsel,
likely
prejudice
that are so
denial of
complete
effect in a particu
their
litigating
the accused that the cost
“This
presumed).18
unjustified
prejudice
lar case is
and
Cronic-style presumption
prejudice
employed
Court has
failure
error has caused a total
constitutional
where counsel’s
Cronic
is limited to situations
in
relevant
proceeding....
ie.,
counsel has
where
complete,
where counsel’s failure is
client’s advocate.” Common
to function as the
entirely failed
(2009)
Johnson,
523,
329,
538 n. 6
v.
Pa.
wealth
600
(instances
requested
appeal
file a
direct
include failure to
appeal)
of on
complained
of matters
failure to file a statement
counsel,
omitted).
(citations
individual
In addition to error
may
appropriate
also be
the Cronic
prejudice
presumption
gravely
error or defect so
that some structural
showing
upon
that a constitu
mechanism and framework
the trial
affected
Fulminante, 499
Arizona v.
occurred. See
tional deprivation
(1991)
1246,
302
279, 309-10,
113 L.Ed.2d
111 S.Ct.
U.S.
particular
petition on this
Notably,
his PCRA
Martin cited Cronic
18.
in
333,
¶
Petition, 4/13/00,
issue,
in
brief
does not cite it
but he
appeal to this Court.
on
“total
(citing
deprivation
right
to counsel at trial” that
335,
792,
Wainwright,
occurred Gideon v.
U.S.
S.Ct.
Several
Court’s cases have touched upon Martin’s
Williams,
judice.
claim sub
In
597 Pa.
*23
(2008),
Here, Martin has not demonstrated that the manner by which Lebanon County appointed capital defense counsel ren ders the performance of such appointed counsel presumptively ineffective under Cronic. To contrary, all counsel is presumed to have rendered effective assistance. Common Steele, 341, wealth v. 786, (2008). 599 Pa. 961 A.2d Nor lawyer’s does a inexperience capital cases render him presumptively ineffective: this has Court “consistently stated that inexperience alone is not equivalent to ineffectiveness” and that an appellant must still make out the elements of an ineffectiveness claim. Commonwealth v. Blystone, 555 Pa. 1197, (1999). Whatever the alleged short comings of Lebanon County’s indigent capital defense system may mid-1990s, have been in the Martin has not demonstrated that defects cause structural as to were so extreme they that sentencing, such his trial and mechanism of the entire tainted Martin’s is reversed. of effectiveness presumption that the therefore, claim, fails. Jury Challenge Selection Method
Failure was ineffective that trial counsel contends County Lebanon manner which challenge the failing to tax roll. capita on a per was based jurors, its which selected unconstitutionally process selection jury that the He argues in violation of community him a fair cross-section denied housewives, over individuals Amendment because the Sixth $5,000 exempt are per year than making less and persons that further maintains tax. Martin capita paying per from did not jury empanelled on jurors” six “ghost at least in violation of rolls County juror on the Lebanon appear jury 4521(a) annually least (providing § “[a]t Pa.C.S. of prospective a master list prepare shall selection commission claim is asserts The Commonwealth jurors.”). coun prove sufficiently plead not because he did waived regard. in this ineffective assistance sel’s *24 not the issue was initially court determined The PCRA were ineffec- all counsel prior Martin averred waived because in the point at an earlier raise this issue failing for to tive 1/3/02, at 40. See Opinion, PCRA Court proceedings. PCRA waived because issue was However, underlying it held the the days five before jury array the challenge Martin failed to trial, required for as case was listed of the week the day first if is because finding suspect This 630.19 by Pa.R.Crim.P. 630, to Rule array pursuant objected jury to the counsel had Additionally, the argument. ineffectiveness would be no there right not waived his if Martin had held that even court under cognizable claim is not array, such jury challenge provides as follows: 19. This rule thereto, challenge to the prior a opportunity not exist did Unless day days before the first array not later than 5 shall be made jurors which the criminal cases for is listed for trial of week the case thereafter, writing, be in and shall and not have been summoned challenge. constituting ground specifying the facts 630(B)(1). Pa.R.Crim.P. 1/3/02, the PCRA. See PCRA Court Opinion, at 41. This ruling misconstrues argument as a challenge to the Lebanon County jury selection when it process, was clearly couched in terms of ineffectiveness of counsel. Although waived, PCRA court determined the issue was it addressed claim, the substance of rejected it on the merits. preserved Because Martin the ineffectiveness issue and presented argument such, to this Court as we likewise merits, afford merits review. On the the PCRA court deter mined that Martin present failed to a prima, case that he facie was denied a jury selected from a fair cross-section of the community, and he failed to demonstrate how the appearance of alleged “ghost jurors” prejudiced him. agree We with this legal conclusion.
In order prevail on claim, his ineffectiveness Martin must first demonstrate the arguable merit of claim, the underlying i.e., that the method of jury selection violated the Sixth Amendment. We have held that establish prima “[t]o facie case that a jury pool selection method violates the Sixth Amendment, (1) [the defendant] must show: the group alleg- edly excluded (2) distinctive in the group community; representation of this group the pool juries from which are selected is unfair and unreasonable in relation to the number of such persons (3) in the community; and the under-repre- sentation is due to the systematic exclusion of the group in the jury selection process.” Commonwealth v. Romero 595 Pa. 275, 362, 938 A.2d 373-74 (citing Commonwealth v. Lopez, (1999)). 559 Pa.
Martin reiterates that Lebanon County juries selects based on the per rolls, tax capita which purportedly excludes persons 65, housewives, over and persons $5,000 less earning than per *25 year. He baldly asserts that these groups were disproportion- ately excluded, but does not allege how the absence of these groups is unfair or unreasonable compared to the number of those individuals in the community. Nor does Martin offer any argument regarding how the alleged underrepresentation
195 groups during of the exclusion systematic to a was due process. selection jury alleged how the fails to demonstrate Martin
Additionally, any him or jeopardized jury prejudiced on his jurors” “ghost Moreover, he jury pool. in the group’s representation other that a authority proposition for any has failed to cite a for whatever juror, a new trial when is entitled to defendant jurors. list of reason, prospective on the master appear fails to a he was denied Thus, showing prima he fails to make a facie and his community, of the from a fair cross-section jury merit arguable claim fails the assistance of counsel ineffective analysis. of the Pierce prong Conditioning Agreement
Improper of Plea be that his convictions should argues Finally, to enter a permitted that he be with instructions reversed imprisonment a of life sentence plea exchange guilty counsel and that all parole, prior of possibility without the this issue. He asserts ineffective for to raise failing were offered relief because the Commonwealth he is entitled to this im but parole, life without imprisonment pre-trial plea on his co-defen plea of the acceptance conditioned properly offer. Martin main of the identical (King’s) acceptance dant’s but that plea agreement, agreed accept tains that he refused; thus, he could regarding the decision whether King arbitrarily life was decided imprisonment be sentenced to Amendment. King Eighth violation Pa.
In v. Spence, (1993), of a entry guilty plea, we held that to the “prior ‘executo of an right specific performance defendant has no Johnson, Id., Mabry at 1184 (citing ry’ agreement.” (1984)). Thus, as the 504, 104 2543, L.Ed.2d 437 U.S. S.Ct. the District Attor noted, “it was well-within [sic] court guilty acceptance [Martin’s] discretion to condition ney’s King plea agreement, to take the agreement plea upon with the to decide Attorney power is vested as the District and when to and whether prosecute whether and when to 1/3/02, Opinion, a case.” PCRA Court continue or discontinue *26 at 21. Martin no presented evidence that the condition was upon inappropriate race, based considerations such as religion, therefore, or national origin; the condition was within the Moreover, attorney’s district discretion. since the plea agree- ment court, was never to presented accepted by or it existed; never it was at most an offer not accepted. Accord- ingly, the PCRA court properly held that Martin is not specific entitled to performance of the alleged plea agreement, and that counsel cannot be deemed ineffective failing to raise this meritless claim.
The Cross-Appeal Commonwealth’s Challenge Finding Failing Ineffectiveness for Mitigation
to Present Evidence The Commonwealth raises one issue for review— whether the PCRA court erred in Martin a granting new penalty hearing based on its finding trial counsel was ineffective for failing to investigate and present mitigation evidence. The PCRA court based its decision on trial coun sel’s failure to investigate and present two categories of (1) mitigation evidence: mental health mitigation evidence establishing that at the time of the murder Martin suffered from chronic Post (PTSD) Traumatic Stress Disorder depression, from resulting previous sexual abuse from his uncle; and evidence that Martin sustained physical and emotional abuse while institutionalized for drug and alcohol treatment the Straight Treatment Center (Straight) Springfield, Virginia.
Regarding the mental health mitigation evidence, which was offered to support the mitigation circumstances set forth 42at 9711(e)(2) §§ (e)(3),20 Pa.C.S. the Commonwealth argues that the PCRA ruling court’s improperly limits counsel’s abili- mitigating 20. The 9711(e)(2) circumstance set forth in provides Section that "[t]he defendant was under the influence of extreme mental or 9711(e)(2). emotional 9711(e)(3) § disturbance.” 42 Pa.C.S. Section provides that capacity appreciate "[t]he of the defendant the crimi- nality of his conduct or to conform requirements his conduct to the substantially 9711(e)(3). law impaired.” § was Id. at how to regarding decisions strategic to make reasonable ty maintains that trial. It phase during penalty proceed conditions, psychiatric well aware of Martin’s was trial counsel testimo- introducing expert reasons for not strategic but had mother, testimony of relied on the and instead ny, endured and her son had sexual abuse who described *27 to According health treatment. his mental referenced briefly declining in to Commonwealth, strategy trial counsel’s (1) com- based on: testimony was expert psychiatric present he not want to that did indicating from Martin munications (2) with Leba- testimony; experience counsel’s such present step as “one above jurors psychiatry who viewed County non (3) and, concern that N.T., 9/9/02, 93; counsel’s witchcraft,” at “open would evidence expert psychiatric the presentation committed murder subsequent of a the door” to evidence Martin. Martin suffered evidence that mitigation proposed
As to at while institutionalized abuse physical emotional mitigator catchall to support which was offered Straight, that 9711(e)(8),21 contends § forth at Commonwealth set ineffectiveness apply appropriate court failed to the PCRA Strickland, which United supra, forth in standard as set Taylor, v. upon Williams Supreme expounded Court States (2000), and 1495, 389 362, 120 146 L.Ed.2d 529 S.Ct. U.S. 2527, Smith, 510, 156 L.Ed.2d 539 123 S.Ct. U.S. Wiggins court, (2003). complains, The 471 on counsel investigatory requirements imposed unprecedented Martin, expert mental health his or the parents, as neither informed counsel stay Straight, during treating As the abused while institutionalized. Martin had been that did not disclose to the information privy individuals who were counsel, submits trial the Commonwealth the same to to further failing ineffective for cannot be deemed counsel the matter. investigate mitiga- "[a]ny mitigator encompasses other evidence
21. The catchall
and the
concerning
of the defendant
the character and record
tion
9711(e)(8).
at§
his offense.” Id.
circumstances of
Before addressing the
allegations,
Commonwealth’s
we rec
ognize that resolution of a claim that trial counsel was ineffec
tive for
to
failing
present
evidence
mitigating
proven,
has
difficult,
the recent
to
past,
quite
be
in several
resulting
opinions
divided
of this
e.g.
Court. See
Commonwealth v.
103,
(2009) (court
Ligons, 601 Pa.
In order to obtain uniformity in our rulings on this issue, important we must adhere to our appellate standard of review, which requires us to affirm the order of the PCRA court if the facts by as found the court are supported the by record, and the legal conclusions drawn therefrom are free from legal Johnson, error. Commonwealth v. 329, 600 Pa. 966 523, (2009). A.2d 532 This inquiry a involves mixed question of law Rios, and fact. Commonwealth v. 583, 591 Pa. 920 A.2d 790, 819 (providing “[a]n ineffectiveness claim based on counsel’s failure to pursue all reasonably available avenues of developing mitigating evidence constitutes a mixed law.”). question of fact and See also Strickland v. Washing ton, 698, 466 at U.S. 104 S.Ct. 2052 (providing that “both
199 in- ineffectiveness of components and prejudice performance fact.”).22 law and of questions are mixed quiry fact, of law question a mixed reviewing When to the determination given to be the level of deference basis, issue-by-issue an be evaluated on court “must toward heavily weighted are more mixed questions since some law.” towards fact, heavily weighted are more while others 612, 222, Pa. Crawley, 592 v. Commonwealth determination, the more (2007). fact intensive the The more Id. conclusion. afford that reviewing a court should deference at 615-15. court,
Thus,
findings
post-conviction
fact-based
credibility of wit
on the
passes
which hears evidence and
deference,
v.
nesses,
great
be
given
should
(2006),
Jones,
particularly
A.2d
590 Pa.
as the trial
where,
here,
court
also served
judge
as
the PCRA
396, 120
at
Taylor,
U.S.
judge.
court
See Williams
find
that the
conviction court’s
post
1495 (emphasizing
S.Ct.
who
by
very judge
presided
were
ings
made
devel
the additional evidence
trial and also heard
defendant’s
not
findings
Factual
will
hearing).
in the
oped
post-conviction
record,
if
are
appeal
they
supported
be disturbed on
contrary holding.
support
even where the record could
Jones,
principles
Adherence to these
We our court erred its determi of whether the PCRA question investi failing was ineffective for nation that trial counsel depends upon evidence mitigating sufficient gate present *29 factors, the reasonableness of counsel’s myriad including of noted, Pennsylvania is the same while the test for ineffectiveness 22. As by the two-part performance prejudice standard set forth the as Strickland, application, this Court Supreme United States Court dividing performance tripartite, by the the test as has characterized i.e., arguable parts, merit and lack of reason- element into two distinct 215, n. Rainey, Pa. Commonwealth v. able basis. (2007). the
investigation,
mitigation
actually
evidence that was
pre-
sented,
mitigation
and the
evidence that could have been
presented.”
Ligons,
Commonwealth v.
Looking first to trial investigation counsel’s and presenta- evidence, tion of mitigation the record reveals trial coun- sel interviewed and his the parents, fiancée of Martin’s brother, guards from the Lebanon County Correctional Facility. Trial counsel did not contact of any professionals or institutions who had rendered substance abuse and/or Martin; mental health treatment even though Martin’s mother specifically gave counsel a list of names and addresses of such professionals, along with the dates on which they provided treatment to Martin.
At penalty hearing, the defense upon relied two mitigat- factors, ing namely, age of the defendant at the time of the incident (twenty-one), 9711(e)(4), § id. at and any other evi- dence of mitigation concerning character and record of the (“the defendant and the circumstances of his offense catchall 9711(e)(8).23 mitigator”). § Id. at thereof, In support trial counsel presented only the mother, of testimony Martin’s Bonnie Martin. She stated that her son was a happy child whose behavior when changed he began using drugs age 10/12/94, twelve or thirteen. N.T. at 1257. Bonnie Martin that, explained result, aas he had been in outpatient treat- Philhaven, ment at a private psychiatric hospital, from Sep- tember of 1987 to April 1258; id. at and had been presented 23. The Commonwealth support aggrava- evidence in of three ting killing circumstances: during commission of the perpetration 9711(d)(6); felony, § 42 Pa.C.S. offense was committed torture, 9711(d)(8); § means of id. at signifi- and the defendant has a history felony cant involving convictions the use or threat of violence 9711(d)(9). person. § to the Id. at *30 mid-1988 treatment from and alcohol drug for institutionalized (Straight) Center the Treatment Straight mid-1990 at through further Id. at 1259. Martin’s mother Virginia. Springfield, he had revealed that at Martin Straight, that while testified uncle, later who was by abused his sexually been previously Id. at 1260. She asserted the molestations. convicted for destroyed self-image and Martin’s the sexual abuse devastated Id. Finally, at 1264. authority. to trust those ability from treatment her son received Martin testified that Bonnie he when he believed the end of until psychiatrist another N.T. sexual abuse issue. with the sufficiently had dealt jury hearing, Following penalty 1261-62. at 10/11/94 mitigating and no circumstances aggravating all three found circumstances.24 mitigating Martin presented proceeding,
At as Specifically, overlooked. he contends trial counsel evidence evidence, the testi- he mitigation presented health to mental and experts, mental health records of three mony and medical County records from Lebanon Mental/Health (MHMR) been none of which had facility, Mental Retardation documentary evidence testimony The and at trial. presented until that, continuing fifteen and early age established as as issue, twenty-one, he when was after the murder Disorder Traumatic Stress suffered from Chronic Post (PTSD) sexual molesta- repeated due to the Depression, and alia, Desipra- inter Martin was prescribed tions his uncle. in time to treat his mental Elavil at different points mine and Dr. Dana experts, of the mental health health issues.25 Two treated Martin Eisenberg, Dr. Bonnie had Keener and records, murder, their which the instant prior to years trial, mental confirmed Martin’s at the time of were available ' as- experts Both and extensive treatment. diagnosis health Court, judgment appeal from Martin’s supra, on direct 24. As noted this death, aggravating circumstance of tor invalidated the of sentence of ture, af remaining aggravating circumstances but sustained King, A.2d at 781- firmed the sentence of death. Commonwealth 82. antidepressant tricyclic medications. Desipramine and Elavil are 25. willing serted that have been at Martin’s they testify would trial had trial counsel contacted them. Kessel,
The Dr. third Julie testified that she evaluat- expert, ed Martin after the murder and concurred with the previous *31 and which are Axis I diagnoses Depression, major of PTSD mental by Diagnostic disorders as the and contemplated Sta- tistical Mental by Manual for Disorders the Ameri- published Psychiatric can Association. Dr. further opined Kessel that due to pervasive resulting Martin’s mental disorders from his abuse, previous the sexual sexual advances the male victim made to immediately to the murder prior placed Martin under the influence of extreme mental or emotional murder, disturbance time at the of the thus the supporting statutory circumstance forth at 42 mitigating set Pa.C.S. 9711(e)(2). that, § Dr. Kessel additionally stated for these reasons, capacity Martin’s to the appreciate criminality of conduct or to conform his conduct to the requirements of the law substantially impaired offense, was at of the the time thus set supporting mitigating circumstance forth at Section 9711(e)(3). 9/13/02, 86-89,163. 27-28; N.T. evidence,
Based on this court PCRA concluded that trial Martin’s claim of counsel to failing ineffectiveness for present mental mitigation health evidence had arguable merit. It cogently reasoned:
It that axiomatic evidence regarding Defendant’s mental may health be presented statutory as mitigation 9711(e)(2) (e)(3) pursuant § to 42 Pa.C.S. and as non- statutory pursuant catch-all mitigation to the mitigator set 9711(e)(8). evidence, § forth at Defendant presented has specifically, the notes and of Dr. testimony Keener and Dr. from Eisenberg, documents MHMR and the opinion Dr. Kessel, diagnosed that he had been with as Chronic PTSD well as Depression Dysthymia before the offenses question. mental are recognized These disorders mental disorders to the pursuant certainly DSM IV and would be 9711(e)(8) appropriate mitigation § evidence to pursuant mitigator]. catchall [the 3/4/04, at 50.26 Opinion,
PCRA Court arguable court’s conclusion extent the PCRA To the determinations, we find that factual upon merit was based Likewise, agree we it. support evidence there was record trial that the claim of conclusion legal court’s with the evi- merit as arguable possessed ineffectiveness counsel time of the counsel at the available to trial was ignored dence statutory two have supported and would hearing, penalty the de- not asserted that were circumstances mitigating fense. inef- prong the reasonable basis next to
Proceeding which the Com- analysis, upon assistance of counsel fective we challenge, emphasize bases its primarily monwealth was aware of that counsel dispute do not parties at the time of records that existed mental health revolves around controversy rather hearing; penalty such information failure to present whether trial counsel’s *32 strategy. a reasonable defense jury constituted penalty that trial counsel noted, argues first As the Commonwealth failing present expert psychiatric to had a reasonable basis not Martin’s instructions following because he was testimony allegation, mental illness. This history divulge court’s factual however, conflict with is direct point. on this findings particular court concluded:
The PCRA Commonwealth, the record indeed by As purported about his not want to talk that Defendant did suggests it undisputed with counsel. While is history mental health matters, such did not want to discuss that Defendant counsel not that Defendant directed record does not indicate Defen- regarding evidence present or not to investigate 112). (N.T. fact, In history. dant’s mental health 9/9/02 penalty Defendant’s during testified mother] [Martin’s treatment from that Defendant had received hearing phase disputed the acknowledged The PCRA court that the 26. presented diagnoses, that Martin suffi- accuracy but concluded presented them of the disorders to have cient evidence of the existence jury’s Id. at 51-52. for the consideration. Philhaven, Dr. Straight, Eisenberg and Dr. Hake. Clearly, Defendant testimony allowed about the fact [his mother’s] treatment, that he necessitated mental health allowing thus the fact that he had mental health to be publicly issues known.
Moreover, while Defendant did not want to discuss his counsel, mental health problems with Defendant’s parents provided counsel with a list of institutions psychologists who had provided addition, treatment to Defendant. In Defendant’s parents provided counsel with a letter written Judge them to Haas that indicating Defendant sustained psychological from the damage abuse of [his uncle] and a Presentence Investigation Report indicating that Defendant has been treated Therefore, for mental issues. the fact that Defendant not did want to discuss his mental with history counsel did not render counsel’s failure to pursue such reasonable, evidence as parents gave Defendant’s counsel clearly information indicating that Defendant had mental health issues in his past. Opinion
PCRA Court at 68-69. Upon review, careful it is clear that the PCRA court’s factual finding Martin never directed trial counsel to refrain from or investigating presenting expert psychiatric testimony supported by the record. when Specifically, trial counsel was asked about his discussion with Martin concerning the presentation of a psychological defense at the penalty phase, the following exchange occurred: Well,
TRIAL COUNSEL: did not want [Martin] to discuss much very about his past psychological treatment and/or problem. just He didn’t want to talk about it. But I did *33 discuss with him that there’s a possibility that we would have to use this later on sometime in the course of the trial in trial, or the penalty phase, not the the penalty He phase. wasn’t interested. I did discuss with him I that felt it was absolutely necessary that his mother testify and that some of those that a things psychiatrist or a psychologist could testify regarding his treatment she can testify to and put that jury. before the He was satisfied with that. him in a with it discussed Was
THE COMMONWEALTH: his prior one of perhaps psychologist, that a fashion specific behalf? on his testify be called to could providers, treatment Yes. TRIAL COUNSEL: he did not was it the case And
THE COMMONWEALTH: that to occur? want didn’t. if he specifically I don’t know
TRIAL COUNSEL: He did not want about it. not want to talk He did prob- having psychological of him perceive general public with conversations tenor of my general That was lems. it. to talk about just him. He didn’t want 9/9/02, at 97. N.T. fact, trial Martin, directed doubt about whether
Any testimo- expert psychiatric refrain from presenting counsel to trial counsel’s from by following excerpt ny is eliminated testimony. Concerning portion
MARTIN’S PCRA COUNSEL: Brad Martin before with testimony and discussions your in his recall, not interested trial, that he was you as I said about want to talk things, health kind of didn’t mental them? to talk about them.
TRIAL Didn’t want COUNSEL: interested hav- Wasn’t MARTIN’S PCRA COUNSEL: like something in front of the world or them ing paraded sir, interest- very few are obviously, very people that. And My issue of. big their mental health made having ed in Martin, in conver- Bradley this. Did though is question years then I old guess with when he was you sations trial, any you order to did he ever issue through mental health wit- hiring using from or prohibiting you nesses? No.
TRIAL COUNSEL: 9/9/02, conten- Accordingly, at 112. the Commonwealth’s N.T. not to followed Martin’s directives tion that trial counsel testimony unsupported expert psychological present *34 Moreover, and even if record.27 there is record importantly, and the for both the Commonwealth’s PCRA court’s support in this respective positions regard, the PCRA court’s conclu- and, thus, by sions are cannot supported record be over- turned.
The strategic second basis offered for trial present counsel’s failure to testi- expert psychological mony County is that trial counsel’s with experience Lebanon jurors they indicated that view as “one psychiatry step above 9/9/02, witchcraft.” asked de- N.T. 93. When about his only fense strategy presenting testimony of Martin’s mother, explained: trial counsel further
I did not that a or a psychiatrist believe was psychologist to Brad I going save Martin’s life. But did believe that a might mother’s love be able to save Brad Martin’s life. And so I presented testimony her in an life. attempt save his I did not present testimony of or psychiatrists psycholo- gist because I felt that would what the dilute mother’s love and the be testimony mother’s able to do at might trial. 9/9/02, court, however, N.T. The at 92. PCRA expressly discounted purported strategy, concluding scope this that the of trial investigation counsel’s “was result of lack of attention strategic judgment.” rather than reasoned Court Opinion at 67.
The court reached this
based upon
conclusion
its factual
that
finding
trial counsel did not receive information regarding
particular
Martin’s
mental health
or treatment until
diagnosis
the day before the
penalty hearing;
only
that counsel
mother, herself,
obtained such
because
re-
evidence
trieved the
when
records
she discovered that
trial counsel
never contacted Martin’s doctors. The PCRA court stated:
record,
fact,
27.
supported
Had the
the Commonwealth's assertion
present
that Martin
mitigation
directed counsel not to
mental health
evidence,
subsequently
trial
could not
be
counsel
deemed ineffective
Sam,
failing to do so.
Commonwealth v.
535 Pa.
See
PCRA Court counsel that trial court’s conclusion To the extent relied factual strategy upon a reasonable basis for lacked determinations, support evidence to there was record ample that she went to mother testified Martin’s Specifically, them. health records when she the mental to retrieve Maryland 9/9/02, at 184-85. so. N.T. trial counsel had not done learned doctors, Dr. and Dr. Further, Eisenberg treating contacted trial Keener, never been they testified that had 9/11/02, 24. 9/10/02, 67; N.T. at at counsel. N.T. fashion, final the third and cursory forth in a
Although set for trial by the Commonwealth suggested basis strategic testimony is present expert psychological failure to counsel’s may “open that such evidence that counsel was concerned murder after another that Martin committed door” to evidence review, the murder of Upon Goodman. careful we no find in support the record for this proposition. Initially, we note that there is no evidence that Martin establishing was convict- of committing ed a second murder at the time the trial took See place 9/9/02, the instant case. N.T. at 52 (indicating Nevada, that Martin had been charged with murder which allegedly case, occurred after the murder in the instant but which charges had not been disposed of at the time of Martin’s murder). trial for Moreover, Goodman’s there is no evidence indicating that trial counsel refrained from presenting expert psychological testimony due to fears that evidence relating to the Nevada charges murder would be admitted. While coun- sel made a vague reference that expert psychological evidence “open could the door for any things bad that could happen to id. [Martin],” he in no way indicated that this concern *36 was related to Martin’s subsequent murder that charge had not, time, at that in a resulted conviction.28
Finding no factual support for the Commonwealth’s asser- tions, we additionally agree with the PCRA court’s determina- tion that trial counsel’s strategy of not presenting mental health mitigation evidence was unreasonable as a matter of elaborate, 28. To following exchange: we offer the Sir, THE you COMMONWEALTH: did have some concern as a raising psychological counselor of the law that defense or introduc- ing expert testimony psychologist possibly open of a could the door to being the Commonwealth able to introduce other acts of Mr. Martin charged outside of those he was with in this trial? Well, door, you TRIAL open COUNSEL: when obviously you open any things the door for bad happen that could to him. The had, disposal, anybody they Commonwealth at their wanted to use to anything counter say regarding we had to psychological —and they they could do that if wanted report to. If we had a from Dr. Hostetter, we call They Dr. psychologist Hostetter. would have a interview testimony Mr. Martin and introduce that into as well. THE your COMMONWEALTH: Was that a factor in decision mak- ing process? TRIAL COUNSEL: major It was a factor. It was not a I factor. As said, my biggest weighing psychiatrist factor was psychologist or love, coming testifying in and versus a mother’s that she would be incorporate able to happened what things express to him in these but thought it in jury terms that I empathy would feel more for and they would better understand. 9/9/02, N.T. at 98. (1) is specifically counsel trial where: summary, In law. the time of existed at that health records to mental alerted that (2) established records such hearing; penalty mental major treated for and diagnosed been Martin had (3) murder; the time before, and after during, disorders sexual abuse from the arose the mental disorders after (4) murder occurred uncle; the instant by his suffered sex; and, the mental Martin for propositioned Goodman two addition- have supported would evidence mitigation health (namely, jury not considered factors mitigating al further 9711(e)(2) (e)(3)); failure to trial counsel’s and Sections is unreason- jury evidence to the such present and investigate matter of law. able as a record for ample support there is
Finally, by trial was prejudiced that Martin court’s determination evidence. health mitigation mental present failure to counsel’s in a case that, prejudice establish “[t]o reiterated recently We mitigating investigate present the failure involving and argu- the evidence evidence, only not we must consider the evidence but also penalty phase, at the ment presented the penalty presented have been that would argument evidence.” such investigated properly had trial counsel hearing Malloy, (citing 971 A.2d at Ligons, (2004)). explained We 579 Pa. that at least probable when it is is demonstrated “[prejudice circum- mitigating at least one accepted would have juror one circum- outweighed aggravating that it stance and found found.” Id. stance *37 court, who standard, the this PCRA
In accordance with trial and the at presented the evidence mitigation heard both hearing, post-conviction in the developed evidence additional the volume and undeniable that both that “[i]t concluded PCRA significant.” evidence is mitigating of this quality Here, trial 3/4/04, notwithstanding at 73. Opinion, Court which testimony, of Martin’s mother’s presentation counsel’s drug with and and his battle sexual abuse illuminated Martin’s circumstances addiction, jury mitigating the found no alcohol proceeding the PCRA during presented at all. The evidence explicitly supported two mitigating circumstances not pursued defense, i.e., by that Martin was under the influence of extreme mental or emotional disturbance at the time of the 9711(e)(2); § murder to 42 pursuant Pa.C.S. and that Martin’s capacity appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially offense, impaired time of the id. at 9711(e)(3). Further, § mental specific ailments of PTSD and depression arose from repeated sexual abuse uncle, by his and the instant murder occurred after the male victim propositioned Martin for sex.
Comparing evidence presented at the penalty hearing herein, with that presented the PCRA court held that it was probable that at juror least one would have accepted at least one circumstance, mitigating and found that it outweighed the aggravating found, i.e., circumstances commission of the kill- ing during perpetration felony, 9711(d)(6), § of a id. at significant history of felony convictions involving the threat of violence 9711(d)(9).29 to the person. § Id. at To the extent finding prejudice was based upon factual determina- tions, the record supports such findings, and it is inappropri- ate under this Court’s deferential standard of review of factual determinations for us to overturn the PCRA court’s decision. Moreover, we agree with the PCRA court’s assessment Appellant prejudiced was aas matter of law. conclusion,
In the PCRA court underwent a painstaking analysis regarding the claim that trial counsel was ineffective for failing to investigate present mental health mitigating evidence. As the factual determinations made therein are record, supported by the and the legal conclusions drawn erroneous, therefrom are not alone, on this basis we affirm the order of the PCRA court. We therefore need not examine the factual basis for the Commonwealth’s claim that the court erred holding trial counsel ineffective for failing opinion 29. Our on appeal Martin's direct demonstrates that the convic- supporting aggravating tions this prior burglary circumstance were five trespass and criminal King, convictions. See Commonwealth v. A.2d at 770. *38 during abused that Martin had been evidence present was not informed when counsel Straight, at institutionalization however, this note that We such abuse had occurred. ineffective cannot be deemed that trial counsel has held Court neither abuse where alleged evidence of failing present of the abuse informed counsel family nor his the defendant have record that would objective evidence of and there was no issue. further into the Common- counsel to look prompted (2005). 1139, Brown, 461, 872 A.2d 582 Pa. wealth v. court, which denied of the PCRA Accordingly, the order trial, penalty hearing, him a new granted a new but affirmed. in the did not participate MELVIN
Justice ORIE of this or decision case. consideration joins opinion. Justice TODD concurring opinion files a
Chief Justice CASTILLE joins. which Justice McCAFFERY dissenting opinion. concurring files a
Justice SAYLOR dissenting opinion. EAKIN concurring Justice files Justice CASTILLE. Chief with the of the two join Majority Opinion, exception
I addressed below. points I
First,
cross-appeal,
with
to the Commonwealth’s
respect
characterization of this Court’s
Majority’s
write to address the
concerning mitigation
from the recent
opinions”
past
“divided
claims,
in every capital
appeal.
which seem to be raised
198,
suggests
The Majority
at
564, (2005)). 583 n. 25
The
by
Majority
cases cited
do
the
convey
difficult
inquiry
nature of the
in
I write
question.
merely to note that
Supreme
recently
U.S.
Court
has
issued
series of
—Allen,
U.S. -,
decisions
this area.
v.
See Wood
130
(2010)
841,
(counsel’s
S.Ct.
213
Majority’s discussion
involves the
point
The second
that a claim
states
Majority
The
of review.
standard
mitigation poses
with respect
ineffectiveness
counsel
Rios,
v.
fact, citing Commonwealth
of law and
question
mixed
Strickland, 466 U.S.
790,
583,
Pa.
920 A.2d
ineffectiveness
2052,
which held
698, 104
at
S.Ct.
of fact and
questions
of mixed
comprised
generally
inquiry
Majority
The
199,
at 196-98.
5 A.3d
Majority Op.
law.
fact,
of law and
a mixed
reviewing
question
when
adds that
varies
court’s determinations
deference to a PCRA
the level of
weighted
heavily
“are more
questions
mixed
because some
towards
weighted
fact,
heavily
are more
while others
toward
Pa.
Crawley,
Id.
(quoting
law.”
(2007)).
such,
Majority,
according to
As
*40
court,
the hear
when
especially
findings
factual
of the
“great
given
should be
judge,
as the trial
judge also served
ing
if
are
appeal
they
on
“not be disturbed
deference” and will
could
record,
support
the record
even where
by the
supported
199,
Com
(citing
In
v.
Commonwealth
a de novo review standard
adopted
the
majority
Court
whether
concerning
law and fact
mixed
question
for the
the constitutional-
fell beneath
counsel’s
capital
performance
former
derived from
Chief
position
This
floor.
ly [sic]
in
v.
concurring opinion
Cappy’s
Justice
(2006), in which he
364,
775
Pa.
909 A.2d
Gorby, 589
way
principle
no
alters
elaborated that “this [in]
review claims
in the best
position
‘the trial court is
instance as that is
error
the first
related to trial counsel’s
allegedly defi-
firsthand counsel’s
the court that observed
Indeed,
former
Justice
Chief
cient performance.’”
stressed that he “would continue to
accept
factual
findings and credibility determinations of the PCRA court
that are
supported by
record.”
Sattazahn,
648,
640,
Commonwealth v.
597 Pa.
952 A.2d
657 n.
(2007) (internal
omitted);
citations
see also Commonwealth
Small,
549,
(2009)
J.,
602 Pa.
(Saylor,
(“[T]his
concurring)
Court has clarified that
appellate
review of
ultimately
ineffectiveness matters is
de novo. See
].”). In
comments,
[Rios
addition to
Saylor’s
Justice
I would
that our
suggest
consideration of PCRA court assessments
involving Strickland prejudice should be confined to matters
where the trial court
positioned
is better
to make an assess
ment,
demeanor,
such as where
credibility, or the overall
(where
effect of evidence
the PCRA
was
judge
also the trial
—
judge) is involved.
U.S. -,
v. Upton,
Cf. Jefferson
curiam)
S.Ct.
Here, however, the PCRA finding court’s that appellant was prejudiced by counsel’s penalty phase ineffectiveness was not based upon questions particular to the court’s superior per- spective, but rather on comparison, remove, its from a mitigation evidence actually presented at appellant’s penalty hearing with the mitigation evidence that counsel did not investigate or present penalty phase, which the court deemed “significant” *41 terms of volume and quality. PCRA 3/4/04, Op., Ct. at 73. The court’s of the perception great differential between the two mitigation “packages” convinced it that had appellant been I prejudiced. do not read the opinion below as being premised upon perspective a that is any different from that which this Court may glean from this Thus, record. I although agree with the Majority’s affirma- tion on this I point, would hold that the court made no error
law in concluding that appellant was prejudiced by counsel’s failure to investigate present more extensive mitigation evidence at penalty the phase.
Justice joins McCAFFERY opinion. this SAYLOR, dissenting. concurring Justice centered on asserted on the issue majority opinion join I a provo- potential with stewardship connected deficient 190-91, at 5 A.3d defense, Majority Opinion, see cation-based 18-20; trial, as id. at areas” of see 187-90; “key and other at offer, of a conditioning plea improper of an well as the claim with to respect in the result 26-27. I concur see id. at in favor of a claims, that I dissent except of the balance jurors.” “ghost centered on to the claim regard remand with I offer the my position, support at 24-26. In id. See comments. following version Appellant’s to credit majority appears
Initially,
money
victim offered
facts,
to which the
according
See, e.g., Majority Opinion,
sexual favors.
Appellant seeking
180-81, 203,
208, 208-11,
my
203-04. To
5 A.3d
at at
fact.1
however,
been found to be a
this has never
knowledge,
enforcement,
lawby
interrogation
the claim of unlawful
On
183-88,
183-88,
at
Appellant
Majority Opinion,
see
conduct, as follows:
of coercive
troubling specter
raises the
F.B.I.
were seek-
agents
1993 four seasoned
On October
Martin,
mentally
ill
statements from
ing incriminating
contest, unequal
was in
In this
year
pain.
old who
his Fifth Amend-
by invoking
law enforcement
frustrated
saw,
The agents
and to
silent.
keep
ment
to counsel
rights
however,
from his car accident and
pain
that Martin was
waited awhile and
They
simply
therefore
hand-cuffing.
Martin with a softer
engage
then
a fourth
agent
sent
if
...,
to Martin that
agent
and had that
indicate
approach
him about his offense
just
to talk to
agree
Martin could
of his neck and
right
in the
side
lawyer,
pain
without
relieved and his handcuffs removed.
shoulder could be
that the
complains
at 23-24.
Appellant
Appellant
Brief for
by painting
in “rank
engaged
speculation,”
court
id. at 24.
motives as innocent. See
interrogating agent’s
actions as
Notably,
court couched the victim's asserted
1.
the PCRA
Martin,
11079, op.
&
"alleged.”
No.1993-10899
See Commonwealth
*42
I agree
Appellant
degree
with
that there is an unwarranted
of inference involved in the
court’s determining
motiva-
documents,
solely
extrajudicial
tions based
on
untested by
Thus,
cross-examination.
rather
crediting
than
the PCRA
court’s
in this
I would
the
findings
regard,
rest
decision on the
allocation of the burden of
on
review
proof
post-conviction
In this
Appellant.
regard, Appellant
invites inferences
equally
alone,
which are not
the
appropriate
extrajudicial
from
reports
and he did not present any additional evidence to
the
support
reasons,
inferences he would
to be
For
prefer
drawn.2
these
I
also would not reach the merits of the fruits-of-the-poisonous-
argument,
tree
as
particularly
pertinent analysis
the
should
depend on the nature of an underlying
Majority
taint. See
182-84,
Opinion,
concern,
at
My
On in Pennsylvania, partic defense indigent capital of counsel review, I appellate on ongoing experience of our ularly light attention. continuing this concern merits Court’s believe 2, 261, 2-5 Pa. Ly, Cf. me, J., majority’s explanation, To dissenting). (Saylor, indi County’s of Lebanon shortcomings that “[w]hatever mid-1990s,” been in the may have system defense gent capital structural, at Majority Opinion, error is not the asserted Nevertheless, I also very satisfying. at is not A.3d majority operat is under which the constraints appreciate its support case and this post-conviction in the context of ing is to vindicate prisoner reason —if a following for the decision a post-conviction challenge component as systemic as a matter claim, establish the deficiencies he will have to record. included on jurors” not alleged “ghost to the regard
With statute, see jurors required of prospective the master list 192-95, 190-95, accept I would 5 A.3d at Majority Opinion, the regu- deviations from that material argument Appellant’s lar processes for selection of venirepersons prescribed by as law represents structural error in the first instance. In my view, irregularities substantial in the empanelment of venire- persons trial, to the goes fundamental integrity and I that, believe identified, where such errors are timely burden should fall to the government to take corrective meas- mind, ures. The remaining question, my is the degree to which type this of structural error subject to issue preserva- tion requirements.
There appears split be a of authority among jurisdictions as to whether structural error may be waived. Compare *44 Commonwealth, 30, Mains v. 1125, 433 Mass. 739 N.E.2d 1128 (2000) (“Our n. 3 cases have held that even structural error is subject waiver.”), to the doctrine of with State v. Aragon, 221 88, 1259, (Ariz.2009) Ariz. 210 P.3d 1262 (declining apply waiver principles structural). to an error found to have been hand, On the error, definition, one structural impacts the basic integrity trial, which must be assured to maintain public confidence in the justice criminal system. theOn other hand, there is the possibility, if all structural are errors non-waivable, treated as for the defense objection to omit an to assure a reversal on in appeal the absence of an acquittal. State, 484, See Reid v. 177, 286 Ga. 690 S.E.2d (reflecting the position waivable). that structural error
The advocacy is not well developed here concerning wheth er, or to what degree, structural error should be subject to general issue preservation requirements. Since the issue is complex may be circumstance dependent, I believe it would be preferable for the central fact-based determination to be instance, i.e., made in the first whether or not there were in jurors” (i.e., fact “ghost venirepersons who were not selected according to legal requirements) serving on the jury. Thus, I would remand to the PCRA court for further develop claim, ment of this an including evidentiary hearing at which Appellant would be permitted to tender his proofs concerning the alleged, predicate irregularities, as well as responsive findings and conclusions from the court. sup- I cross-appeal, subject of the Commonwealth’s
On the
agreement
in substantial
and am
majority’s holding
the
port
Nevertheless,
I have some reservations
with its rationale.
penalty hearing.
of a new
about the award
that,
it is
under Common-
likely
In this
I note that
regard,
(2000),
Sattazahn,
the
Pa.
Perhaps good may which be admitted to consider evidence phrased not Moreover, pursue did not on a retrial. retrial be considered may that evidence available on argument court or here. in a assessment before prejudice Thus, a valid *45 ability preserve this has the to although Court record, I have as of any appearing for reason judgment determination original jury that it is the position taken as the circumstances applying principle,4 which controls in this here, to consider this prudent it does not seem developed have I to note that simply further. wish inquiry line for a new public penalty resources expenditure substantial trouble- stage from the post-conviction directed proceeding favorable outcome is where the of a more probability some additional, availability diminished substantially aggravation. weighty Saylor, Right Any An Unsettled Reason:
4. See Hon. Thomas G. Experience Supreme Anecdotal with at the Court Level and an Doctrine (2009). Cappy, 494 Former Justice L.Rev. Duo. Chief EAKIN, concurring dissenting. Justice however, I concur with the affirmation of I majority’s guilt; dissent from the affirmation of the grant PCRA court’s of a penalty hearing new and would remand the case for reinstate- ment original of Martin’s sentence. majority
The affirms the PCRA court’s conclusion that Martin’s claim of trial counsel’s arguable ineffectiveness was of merit. The PCRA court found the record did not indicate Martin directed Attorney Kilgore forgo investigation or presentation of regarding evidence his mental health history; the court cited Martin’s testimony mother’s and her refer- ences to his mental health as that Martin support was not opposed public presentation of his mental health history. 202-04, Majority See at Op., A.3d at 199-200 (citing PCRA 68-69). 3/4/04, Court at Opinion, The court PCRA also noted Martin’s parents provided counsel with a list of institutions and psychologists son, who had treated their and determined Martin’s dislike of discussing his mental history did not pre- clude counsel from such pursuing evidence. Id. The majority points also to Attorney Kilgore’s testimony that Martin never any issued order prohibiting him from hiring using or mental health witnesses as evidence that Martin was not opposed to the presentation Id., of such mitigation evidence. at A.3d at 200-01 (citing 9/9/02, 112). N.T. Hearing,
Under prevailing constitutional norms as explicated by Court, United States Supreme capital counsel has an obli- gation 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 less than complete investigation are rea- precisely sonable to the extent that professional reasonable judgment supports limitation of the investigation. In undertaking necessary assessment, courts are to make all reasonable efforts to avoid distorting effects of hindsight. Nevertheless, courts must also avoid “post hoc rationaliza- *46 tion of counsel’s conduct.”
221 294, Williams, 109, 303-04 Pa. 950 A.2d 597 v. Commonwealth omitted). (citations and footnote failure to held trial counsel’s has specifically This Court ineffectiveness not constitute evidence does mitigating present evidence. not to such present directs counsel if the defendant 603, Sam, 350, A.2d 611-12 Pa. v. Commonwealth See has the (1993). a “criminal defendant This is true because presented will be mitigating whether evidence to decide right trial directs specifically Id. If a defendant on his behalf.” evidence, counsel is mitigation presenting counsel to avoid evidence; not such action will to such duty present under no Id., (citing ineffectiveness. found to comprise be 626-27 Pa. Tedford, v. Rios, 583, 920 A.2d (1989)); 591 Pa. see also Commonwealth (2007) (counsel in to failing present not ineffective 790, 810-11 counsel not to where instructed testimony appellant family witnesses). control here. These principles additional present not interested Martin was Attorney Kilgore testified during the problems treatments or using psychological general not want the Martin “did penalty phase. trial or the prob- him having psychological public perceive [sic] 9/9/02, Attorney Kilgore at 97. Hearing, lems.” N.T. PCRA testimony Martin’s mother’s present testified he chose circum- regarding psychological during penalty phase very was a stances, Martin’s mother approval. with Martin’s woman, job, her responsible regarding articulate she was was psychologist not believe a or psychiatrist counsel did life; however, a mother’s he believed to save Martin’s going Id., penalty stated his Attorney Kilgore love could. at 92. with Lebanon experience was also based on his phase decision just think that is jurors people psychiatry County “[s]ome — Id., This is not perception above witchcraft.” at 93. step one duty-bound to understand to be snickered at —counsel adjudicated, and cannot being in which the case is community any signifi- predispositions faulted for appreciating be world appellate While we jury pool. cant portion terms and concepts, esoterically appealing in broad and speak *47 decisions, in the real of trial very world this concern practical of counsel should not be summarily rejected.
The fact that Attorney Kilgore did not any contact Martin, doctors who previously examined or contact any facilities in which Martin received treatment in any effort to 9711(e)(2) (3) establish the 42 §§ Pa.C.S. or mitigators, irrelevant to the analysis. Counsel followed Martin’s instruc- tions his regarding psychological history, yet was able to reveal a bit of Martin’s past through his testimony; mother’s he respected Martin’s instruction and gave still the jury insight into his client through witness counsel felt would be more readily by the accepted jury. Whether it would be more readily accepted by appellate is not judges the issue. effective, presumed
Counsel is and to overcome pre- this sumption, must satisfy a three-pronged test and dem- (1) onstrate that: the underlying substantive claim argua- has merit; (2) ble counsel did not have a reasonable basis for his act; actions or failure to and Martin suffered prejudice as a result of counsel’s deficient performance. Commonwealth v. Pierce, (1987). 515 Pa. The evidence presented to the PCRA court as confirmation of counsel’s ineffectiveness in investigating and presenting mitigating evi- dence fails to meet this burden. Attorney Kilgore did not pursue such evidence under direction from his client. Attor- ney Kilgore was under no obligation pressure Martin to present such evidence when it was quite clear he was not Nor, interested the prospect. as the majority and PCRA hold, court was Attorney Kilgore required by the governing ineffectiveness standard to circumvent his client’s wishes and investigate present or evidence on a line argumentation his client clearly did not wish to pursue. Attorney Kilgore fol- instructions, lowed not, Martin’s detrimental or presented reasonable, case employing strategic techniques. Pursu- ant to this precedent, Court’s he should not be found ineffec- tive for such I actions. would the portion find of the court’s order granting penalty new phase should be reversed original reinstatement of the case remanded death sentence.
James
No. 93 EM 2010. Pennsylvania. Supreme Court of Sept. 2010.
ORDER PER CURIAM. NOW, Applica- day September, 27th
AND this “Emergency Process and the Original for Leave to File tion Corpus,” Petition for Writ of Habeas Extraordinary Relief are Corpus, of Habeas DIS- as a Petition for Writ treated Reid, 167, 642 A.2d 537 Pa. MISSED. See Commonwealth The Protho- improper). (hybrid representation of record. these to counsel filings is directed to forward notary