Commonwealth v. Mason, L., Aplt

RECTED to compliant file a Petition for Allowance of Appeal days. within 30

Justice EAKIN participate did consideration decision of this matter.

130A.3d 601 Pennsylvania, Appellee COMMONWEALTH of MASON, Appellant. Lenwood No. 676 CAP.

Supreme Pennsylvania. Court Jan. 2015.

Submitted Decided Dec.

Patrick Egan, Rothschild, L.L.P., Fox Joseph Esq., Patricia A. McKinney, Esq., Philadelphia, McKinney & George, Lenwood Mason. Burns,

Hugh Esq., Tracey J. L. Kavanagh, Esq., Jeffrey Krulik, Office, Michael Esq., Philadelphia Attorney’s District Amy General, PA Zapp, Esq., Attorney Office for Common- wealth of Pennsylvania.

SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.

OPINION Justice STEVENS.

This is a capital appeal collateral from an order of Court Philadelphia of Common Pleas of County dismissing Appellant first petition Lenwood Mason’s for relief under Post (“PCRA”), §§ Conviction Relief Act 42 Pa.C.S. 9541-9546.1 19, 1994, Appellant’s convictions arose from the June stab- of Iona bing death Jeffries. The facts as underlying adduced at trial by affirming were enunciated this Court in on conviction and sentence direct appeal: jurisdiction appeals grant 1. This Court has exclusive over from the penalty post-conviction denial of relief in death cases. Pa.C.S. 9546(d). § 31, 1994, police were called to the 3800 block [0]n March Brown Philadelphia. Terry Officer Clearfield Street Street, on Iona walking Clearfield Appellant observed with Noting Ms. frightened close his side. look on Jeffries if face, officer asked approached Jeffries’ her and she on The officer noticed Ms. Jeffries’ right. was all bruises forehead, shoulder, Although Appellant neck mouth. the officer that Ms. Jeffries been attacked told had women, Ms. Jeffries informed the officer other several injuries. Jeffries actually had caused her Ms. Appellant to press to the officer that she was reluctant explained Appellant, as she he would kill charges against feared her. on own Ms. state [sic] Based observations and Jeffries’ ments, however, placed Appellant the officer under arrest. later,

Approximately evening three months of June bar, Slim’s, 1994, Ms. Jeffries was Cadillac of her been several friends. had earlier, from on June prison days released two Ms. Jeffries and her friends to decided leave Cadillac When club, to another Jeffries go Ms. asked a male Slim’s and home, as him acquaintance Appellant drive she did want to accompany Upset by to her Jeffries’ plans club. Ms. him, yelled, to want it like that?” Appellant exclude “You and ran out of the bar.

At approximately following morning, Ms. Jeffries’ 9:30 mother, Jeffries, Mrs. Wisteria was at her home when she Appellant banging heard on the door. As Jeffries Wisteria door, protruding she saw hand approached through the screen door. Jeffries asked When Wisteria wanted, to Appellant replied what he he that he needed speak explained with Ms. Jeffries. Wisteria Jeffries asleep. Appellant Ms. Jeffries After insisted he was Jeffries, to speak Appellant with Ms. Wisteria Jeffries told got outside while she Ms. Jeffries. locked the door wait She room, upstairs went Ms. Jeffries’ where Ms. Jeffries and son, on a with her three sleeping year-old was then bed Anthony. Jeffries refused to come Ms. downstairs. Wiste- Appellant returned the front door and told ria Jeffries that Ms. sleeping Jeffries was and that he would have speak wait to her. Appellant then forced his into way house, Jeffries, pushed past Wisteria ran up and immediately stairs. Wisteria Jeffries called the police. Wisteria Jeffries retrieved knife from the kitchen and began head when she upstairs, Appellant saw descending steps. Appellant Jeffries, stated Wisteria “I got her now.” At that point, Wisteria attempted Jeffries to stab Appellant, pushed outside, but he her aside and ran where neighbor, Bell, Greg saw placing what appeared to be a knife into the waistband of his pants. Wisteria upstairs Jeffries ran Jeffries’ Ms. bedroom found and Ms. Jeffries bleeding profusely from multiple stab wounds. Po lice and rescue arrived and units Ms. Jeffries was taken dead. [2] the hospital, pronounced where she was Later that day, same Appellant surrendered to the and police charged first-degree, with murder burglary pos sessing an instrument crime. Mason, 500, 507-08,

Commonwealth v. Pa. (1999). Moore, Attorney Jr., Thomas Esq., Appel- W. undertook lant’s representation, hiring investigator, Ap- an interviewing mother, pellant and his Allan an retaining Tepper, Dr. in the field of expert psychology, forensic clinical perform psychological provide evaluation and to testimony during guilt of trial. sentencing phases As evaluation, of his Dr. Tepper conducted a clinical inter- part tests, of Appellant, intelligence administered view interviewed mother, discovery and reviewed materials police along Philadelphia with School District past drug records and treatment records. Letter from to trial Tepper Dr. Allan counsel, 3/28/95; dated Declaration and Affidavit of Dr. Allan 10/29/07, Tepper, dated filed 11/1/07. According testimony of

2. to the the chief for Philadel- medical examiner Ms, phia County, by eighteen Jeffries’ was caused death wounds to stab head, neck, chest, back, abdomen, including body, her wounds to her arm, groin leg. and trial the Honorable C. Darnell Jones was

juryA before February appeal, 1996. As we noted on direct conducted following testimony: included the the trial behalf, that claiming on his own he had Appellant testified for the first drinking doing drugs, including POP been and time, at on the before the murder. He night the bar PCP, everything smoked the went testified after he or blurry leaving that he did recall Cadillac Slim’s and house on the of her going morning to Ms. Jeffries’ murder. not regain further maintained that he did his senses He murder, on of evening day until late in the the the again already jail. Appellant’s was mother and when he broth- in Appellant’s also testified defense. Es- [Kevin Mason] er on sentially, they they claimed that when the saw murder, of drugs of he under the and day the was influence any “high” they was unlike had ever his condition him experience. seen

Mason, Pa. A.2d at On February 713. murder, of jury first-degree the found guilty of At burglary, possessing and an instrument crime. the trial, jury of Jones penalty phase Judge instructed four regard aggravating mitigating to three circumstances and presented circumstances.3 All the evidence incorporated of trial during guilt phase during behalf mother, uncle, Larry his penalty phase, Lawhorn, Tepper provided testimony and Dr. additional aggravating "[t]he The circumstances were that defendant committed 9711(d)(6); killing felony,” § perpetration of a while Pa.C.S. knowingly offense the defendant the commission of the created “[i]n grave offense,” person in the victim of the risk of death to addition to another 9711(d)(7); significant § defendant has a histo- "[t]he Id. ry involving felony convictions the use or threat of violence 9711(d)(9). § N.T. at 130. person.” Id. mitigating were that defendant was under "[t]he circumstances The disturbance,” mental or emotional

the influence extreme Pa.C.S. 9711(e)(2), capacity appreciate § defendant the crimi- ”[t]he nality requirements conform his conduct to the conduct 9711(e)(3), impaired,” age § substantially Id. of the "[t]he law was crime,” 9711(e)(4), "[a]ny § time of the other Id. defendant mitigation concerning the and record of the evidence of character 9711(e)(8). § of his defendant offense.” circumstances at 131-132. N.T. 2/16/96 the support mitigating circumstances.4 Following penalty the the phase, jury returned of verdict after finding death two aggravating circumstances and no mitigating circumstances.5 February Judge formally imposed Jones the death sentence on 20, 1996.

Following Appellant’s conviction sentence, and trial counsel Stein, replaced by Esq., Gerald who appeal filed direct on Appellant’s Appellant initially behalf. challenged the suffi- ciency of the to support jury’s evidence the of verdict first- (1) degree grounds murder there was insufficient evidence that Appellant establish necessary acted with the (2) premeditation; jury failing erred Appel- find that lant was acting passion” under the “heat of fatally when he (3) Jeffries; stabbed jury Ms. and in finding a erred specific intent to kill Appellant because presented evidence to show that he was intoxicated at the time of killing. See Mason, 509-511, 559 Pa. at 741 A.2d at 718-714. This Court found no claims, merit to sufficiency determining (1) that: not, the circumstances of the case did as a of matter law, (2) finding foreclose a of premeditation; the record did not support a of heat claim since passion Appellant claimed that he was so intoxicated at the stabbing time that he could not exchanged remember whether words were which give defense, would rise to a heat of passion was no there evidence that the anything immediately victim did before stabbing to provoke Appellant, and the son victim’s testified just that his lying mother was on the Appellant bed when her; into began came the room stabbing it was power jury well within the of the credibility make a determination presented the evidence by Appel- disbelieve lant to that intoxication him prevented forming establish from Although Tepper provide Dr. had been counsel retained testimo- trial, ny during guilt sentencing phases following both the evaluation he had informed trial counsel he could not defenses, provide support any guilt phase evidence in thus trial only presented Tepper's testimony during penalty Dr. phase. N.T. at 12-13. jury 5. The found that committed the murder while in the felony significant history commission of a and that he had a of commit- ting crimes of violence. Id., 510-512, 741 A.2d at specific to kill. Pa. intent 713-714.6 that trial additionally alleged coun- appeal direct during guilt phase

sel rendered ineffective assistance (1) failing properly Appel- consult with by trial (2) trial; failing adequate pre-trial an prior lant conduct evi- investigation, which would have revealed corroborative spent time that and the victim reconciled Appellant dence murder; immediately the together days the before stabbing during guilt as a heinous crime referring the Id., 518, 513, 515, Pa. at closing argument. phase 716, determined, however, This Court that A.2d at 718. to show that was ineffective. had failed Appellant pre-trial that the amount of consul- explained Specifically, we inferring the total extent legitimate tation is not basis pre-trial preparation, and we fur- adequacy counsel’s that Appellant allege any ther that had failed issues noted information any his counsel should raised beneficial have pre-trial further his counsel would have discovered had that Id., 559 Pa. at 741 A.2d at 715. consultations been held. Further, of counsel’s regarding adequacy pretrial the investi- of the gation, apparent we found the was aware jury that witnesses, in- through testimony the of several reconciliation herself; thus, cluding alleg- the victim’s mother the evidence and, merely cumulative, regardless, not edly missed was would Id., first-degree have the conviction. precluded murder 515-516, Lastly, Pa. 741 A.2d at 716-717. as counsel’s at rec- guilt phase closing argument, this Court determined the challenged merely that the comment was ord reflected evidence, emotion, control jury to the should reminder context, case, and, of the when read the outcome clearly part strategy persuade of counsel’s comment was despite gruesomeness the crime’s the evidence jury specific too to form intoxicated Appellant showed evidence, disputing sufficiency Appellant of the also 6. addition to In first-degree unsuccessfully argued murder was the verdict weight against evidence. necessary Id, intent for a first-degree murder conviction. 518-519, Pa.

In addition to leveling guilt phase claims, ineffectiveness Appellant also asserted on direct appeal that he was entitled to a new trial on based after consisting discovered evidence a letter written by the victim to Appellant while he was imprisoned and a picture visiting the victim which, prison, Appellant asserted, demonstrated their close Id., and intimate relationship. Pa. 741 A.2d at 717. Again, this Court determined that no relief since was due any failed meet of the requirements for grant of a new trial on based after-discovered evidence. Id.

Appellant’s sentence was thus affirmed this Court 24, 1999, it November became final on October when the United States Supreme Court certiorari. denied Appellant’s execution was subsequently scheduled for March 8, 2001, stayed but was following filing timely pro of a se PCRA on petition February 13, 2001.7 Following several time, extensions of Attorney Egan Patrick filed an amended petition 25, on Appellant’s 2002, raising on January behalf thirteen for claims relief and an asserting entitlement evidentiary hearing discovery.8 and In Janu addition ary 25, 2002 petition, amended PCRA a Appellant submitted variety of including: additional documents to Imme “Motion diately pursu Re-Sentence Petitioner to Life Imprisonment” Virginia, ant Atkins v. 536 U.S. 122 S.Ct.

L.Ed.2d 335 and an accompanying “Supplemental PCRA, ‘‘[a]ny petition 7. Pursuant to Section 9545 of the under this subchapter, including subsequent petition, or second shall filed year judgment one of within the date the becomes final....” Pa.C.S. 9545(b)(1). § January petition pleadings 8. The subsequent and several were I, captioned Corpus as "Petitionfs] Habeas Relief Pursuant to Article Pennsylvania Statutory Section 14 of the and Post Convic Constitution seq. § tion Relief Under 42 Pa.C.S. 9542 et and Consolidated Memoran Notwithstanding Appellant’s captioning, dum Law.” this matter has properly petition. been ron, treated as a PCRA See Commonwealth v. Breaki 323, 327, (2001) (“As Appellant alleges violations of the constitution and of law which undermine the truth- determining process, cognizable his claims are under the PCRA only unavailable.”). corpus and the writ of habeas Petition”;9 in “Supplement Response PCRA Amended Motion Dismiss and Opposition the Commonwealth’s Motion for Pursuant to Atkins Support in of His Relief Reply ” petitions. In “Supplemental” two PCRA Virginia; dismiss, motions to Commonwealth filed several response, the claims were majority Appellant’s previ that the asserting or, reviewable, if waived, meritless. Addi litigated ously boilerplate Appellant’s Commonwealth assailed as tionally, the ineffectiveness, asserting counsel’s allegations appellate such claims insufficient overcome waiver. are parties’ an eleven-year period, plead- Over the course of discovery requests various and numerous ings, along with then motions, by Judge were heard first Jones and ancillary M. Teresa Jones scheduled Judge the Honorable Sarmina. hearing claims, on several of but evidentiary Appellant’s an occurred, hearing Judge appointed Jones was before Appellant’s case trans- the Federal District Court and was hearing The was even- Judge evidentiary ferred Sarmina. in was limited to tually Appellant’s held October testimony phase During day hearing, issues. the five penalty Sadoff, from Dr. L. behalf elicited Robert Cooke, an expert expert forensic Dr. Gerald psychiatry; an Restak, an neuropsychology; in forensic Dr. Richard Tepper, Dr. Allan trial ex- expert neurology; Appellant’s counsel; Moore, Thomas trial At- pert; Attorney counsel; Stein, Thel- torney appeal Gerald direct Appellant’s supplemental petition asserted he is amended PCRA exempt "[intellectually and is from execution in disabled]” thus accor widely dance with Atkins. The term "mental retardation” had been High accepted by community The the medical and was used Atkins. approved replacement "mental retardation” with Court has since diagnosis. phrase disability” "intellectual to describe the identical — Florida, U.S. -, 1986, 1990, Hall S.Ct. L.Ed.2d Association, (2014) Diagnostic (citing Psychiatric and American Statisti (5th 2013) (DSM-5)); cal Mental Disorders 33 American Manual of ed. Disabilities, Developmental on Intellectual and Intellectual Association (11th Definition, Classification, Systems Support Disability: and 2010) (AAIDDManual). litigated ed. While we note that this case was decided, parties experts both before Hall was and the and their use "intellectually phrases, opt we to use the more recent nomenclature integral quotation reproduced disabled” the former term is to a unless herein. mother; ma Mason, Appellant’s Lawhorn, Larry Appellant’s uncle; Mason, Brian and brother. The Common- wealth, turn, elicited testimony Gordon, of Dr. Barry an expert in neurology behavioral special expertise neu- ropsychology.

At testimony, the close of parties were directed file post-hearing submissions addressing penalty phase issues subject had evidentiary been the hearing. N.T. at 52. At that it time became clear that Appellant guilt was concerned he had phase claims that out- remained standing, as expressed as uncertainty claims which had disposed been Judge Jones and which claims were unresolved. Id. at 50-51. Appellant’s counsel indicated Judge provide Sarmina he would court with the status issues, of Appellant’s Judge that, Sarmina requested addressing addition to the penalty mitigation issues, phase parties’ post-hearing submissions also indicate the issues upon Judge which Jones definitively ruled and what issues were open.” “still Id. at Judge 51-52. Sarmina then set aside 13, 2012, February “for on argument case, this whole we will just to see everything be able where is at. And what issues might left....” still Id. at 54-55. parties

The filed the requested post-hearing submissions 6, 2012. February Appellant initially argued to the court that trial to fully investigate counsel failed background such provide background information expert. Ap to his pellant’s Post-Hearing Memorandum at 3.10Citing the affida Appellant specifically failing faulted trial counsel for to obtain the following records: (1) Records,” Philadelphia "Complete Appellant School which asserted learning disability. revealed the extent (citing Id. at 7 PCRAexh. 62, 69, 72, 91); C-56, 60, (2) Records,” Einstein "Albert Medical Center which assert- drug teenager ed he was revealed that treated for a as overdose C-166); history (citing had of cocaine abuse. Id. at PCRA exh. (3) Records,” "Philadelphia System Prison which asserted data,” "important background possible revealed attempts, head suicide

trauma, 226, 230, C-218, heavy drug use. PCRA exh. 257, 263, 269, 276, 282, 287, 288); Diagnostic Report, The Glen Mills [March 1981] Schools which IQ Appellant asserted revealed that he had taken tests which revealed of testimony vit Thelma Mason and the affidavits of Brian and Mason, argued also trial MaryAnn Appellant Mason and penalty hearing-focused failed conduct interviews Appellant’s family, Appellant suggested which would (1) early revealed Appellant’s developmental problems have (2) standards, to meet expected Appellant’s hy and his failure (3) nature, corporal and the use of peractivity prone accident (4) household, difficulty punishment Appellant’s Appellant’s adjusting predominantly in a white neighbor school and white (5) hood, drug use as a teen and Appellant’s subsequent (6) hallucinations, paranoid addiction that and Appel caused Id. at 9-13. drug night lant’s use on the the murder. before Appellant further maintained that trial counsel to inves failed deficiencies, and, Dr. tigate despite mental health request, failed to school Tepper’s pre-trial provide additional records, past of alcohol psychiatric records treatment and and treatment, records, which, and drag Appellant criminal abuse asserted, prompted Tepper would have Dr. to recommended testing that neuropsychological Appellant would have revealed Dr. organic damage Tepper suffered from brain and enabled presence statutory on the of opine non-statutory and men In mitigation. health of this support argument, Appellant tal Cooke, Restak, testimony cited to the Doctors and Sadoff who, according had the benefit full Appellant, opinions and from Appellant records offered suffered variety cognitive conditions that affected behavior and jury’s have altered the determination to the mitigat would as (3). 9711(e)(2) Id. at 15-2 ing factors set forth in Sections and 1.11 performing grade scores of and that he was well below his level math, reading daydreamed excessively and that he and been had C-329, 331, 333, 334); (citing "spacey,” PCRA described as exh. Reports "Pre-sentence and Mental Health [dated Evaluations 12/3/85, 12/10/90, 6/29/94], Appellant which re asserted adjustment problems, self-reported history impul pattern

vealed stress, sivity personality diagnosis, schizoid under disorder Id. at 9 C-337, 338, 367, 368, 390, 391). (citing PCRAexh. raising alleged 11. In these instances of addition trial counsel's ineffectiveness, argued appellate Appellant failing counsel erred in In raising ineffectiveness, addition to claims of counsels’ argued also to the court guilt that the prosecutor’s phase closing arguments improperly urged jury to convict no Appellant because he had or sympathy remorse for the victim. Id. at 40 99-100).12 N.T. 2/14/96 acknowledged that his trial objected counsel to the prosecu- tor’s objection comment and the sustained, was Appellant but contended that trial counsel rendered for ineffective assistance failing additionally request jury a curative instruction and appellate that counsel rendered ineffective assistance fail- Id. ing to raise trial error. counsel’s 41.

The Commonwealth countered that trial properly counsel hired and on opinions relied the Tepper, Dr. who reviewed majority of the records that allegedly counsel pres- failed to ent, and, following review, that did not any recommend addi- tional testing. post Commonwealth’s hearing at 2-3. brief The perceived Commonwealth further that the information in the contained “additional” records nothing more than cumulative of presented information the jury from other Id. at 6. The sources. if Commonwealth insisted that even jury the presented had been opinions experts the the retained by Appellant at PCRA stage, the impair- “mild” ment from they Appellant which suffer believed would not have compelled a different mitigation/aggravation conclusion. Id. Similarly, 7-13. disputed Commonwealth the con- tention that ineffectiveness could on be found based counsel’s Id. at 14-16. regard family tactics with testimony.

Oral argument occurred Judge February before Sarmina on 2012. immediately complained to the court that his counsel had not addressed the outstanding guilt phase issues, to which counsel Appellant’s responded he that didn’t include post-hearing them the memorandum submitted penalty phase behalf because the issues addressed argue performance appeal. trial counsel's deficient on direct Post- Law, Hearing Memorandum of filed at 36-39. 2/6/12 explained 12. counsel later he chose not take evi- closing argument improper during evidentiary dence on the issue hearing, believing unnecessary legal argu- because it the issue involved only. ment N.T. at 7. 2/13/12 “it certainly did seem hearing were extensive so.” N.T. at 4-5. Appel- time do appropriate “have not counsel the issues been

lant’s maintained “at waived,” his intention to address them and indicated argu- proceeding time.” Id. at Before hear appropriate issues, Judge again re- penalty phase Sarmina ment on indicate what issues were before the quested parties that the at 8.13 Id. court. 22, 2012, argument Judge oral on June

Following additional record that had not met the Sarmina stated on the on Appellant’s to achieve relief claim prejudice prong required at the penalty trial counsel ineffective rendered assistance In finding, Judge of trial. at 19. so phase N.T. 6/22/12 testimony she of Dr. indicated that had credited Sarmina prong had “on the prejudice concluded balance Gordon determination, Following Appel- has not met.” this been again expressed uncertainty regarding what lant’s outstanding op- further requested issues remained other Acknowledging to brief the court. portunity Id. 22-23. necessity ruling of a formal on whatever claims remained undecided, Judge permitted briefing. additional Id. Sarmina at 23-24. 28, a “Motion for August 2012, Appellant

On filed Reconsid- of Post-Hearing eration Memorandum Supplemental Law,” “thoroughly reviewing the rec- indicating despite ord, Judge it is clear which claims Jones had entirely not on.” Motion for previously Supple- ruled Reconsideration and of filed Post-Hearing mental Memorandum Law of sought Judge The motion reconsideration Sarmina’s then proven has not trial counsel’s determination regard penalty phase to the claims and ineffectiveness (1) that: the trial argued guilt phase two claims additional that “life jury imprisonment” court instruct failed of possibility parole means life without the counsel was submissions, post-hearing they ap parties but 13. The filed additional pear response request they to the court’s address how the evidence, reweigh aggravating mitigating and do court should outstanding. Post-hearing sub what other issue remained address filed missions 6/19/12.

387 for failing (2) ineffective seek such an instruction, and trial ineffective for failing present expert testimony and additional in support evidence of heat of passion voluntary intoxication 10,14. defenses. Id. at Judge Sarmina heard final oral argument 3, 2013, on January and denied Appellant post-conviction relief. a timely filed ap- peal of the PCRA court’s denial of relief.14 of

“Our review a PCRA court’s decision is limited to examining whether the PCRA court’s of fact findings are supported record, by the and whether its conclusions of law Hanible, are free from legal error.” Commonwealth v. 612 Pa. 183, 204, 30 A.3d (citing Commonwealth v. Colavita, 1, 21, (2010)). 993 A.2d We view the of findings the PCRA and the evidence of court record a light most favorable the prevailing party. Id. With respect to the PCRA court’s decision to for deny request an eviden- tiary or to hearing, evidentiary hold limited hearing, such a decision is of within discretion the PCRA court and will not be overturned an absent discretion. See Com abuse Reid, (2014). monwealth v. Pa. 99 A.3d “The PCRA court’s determinations, credibility supported by when record, Court; binding however, are on this apply a de we novo standard review to the PCRA court’s legal conclu sions.” 1, 16, Roney, Commonwealth v. Pa. (2013). The denial of an appellant’s request discovery

is reviewed for abuse discretion.

To relief, a petitioner be entitled PCRA bears the burden evidence, establishing, preponderance that his conviction or sentence resulted from one or more of the § 9543(a)(2), circumstances enumerated 42 Pa.C.S. which include a violation of or Pennsylvania United States Con- or counsel, stitution of any ineffectiveness one which “so truth-determining process undermined the that no reliable Appellant complied with the court’s directive to file a Pa.R.A.P. 1925(b) complained alerting concise statement of appeal, matters of on 1925(b) twenty allegations the court to four of error. Pa.R.A.P. State- 1925(a) Judge ment filed responsive filed a Sarmina Rule 2/20/13. opinion. 388 42 taken guilt place.” or innocence could have

adjudication 9543(a)(2)(i) (ii). Further, petitioner must § and Pa.C.S. previously has not allegation of error been show 9543(a)(3); § See or litigated pursuant Pa.C.S. waived Baumhammers, 364, 354, 625 92 A.3d v. Pa. Commonwealth (2014). 708, 714 if highest appel- “the previously litigated

An issue has been had review as a petitioner in which the could have late court of the A ruled on the merits issue.” right matter of has it “if have petitioner is waived could raised claim PCRA trial, unitary trial, during do so before failed to but prior postconviction proceed- or in a state review, on appeal ing.” Martin, 165, 177, 176, 5 A.3d 183 Pa. 607

Commonwealth v. (b)). 9544(a)(2), § (2010) (citing 42 Pa.C.S. that his claims assert majority

The ineffective provided assistance. trial appellate and effective, in order to overcome that and presumed Counsel prove must that: petitioner plead PCRA presumption claim (1) the ineffectiveness has underlying claim legal (2) any or merit; counsel’s action inaction lacked arguable interest; petitioner’s designed to effectuate reasonable basis (3) prejudice resulted in action inaction counsel’s Fletcher, 493, 515, 986 v. 604 Pa. petitioner. Commonwealth Natividad, (2009); 595 Pa. 759, Commonwealth v. A.2d 772 310, (2007).15 to ‘reason 188, 207, regard 321 A.2d “With 938 there basis,’ question ‘does not whether the PCRA court able counsel could action which logical were other more courses rather, must examine whether pursued; [the court] have ” Common any decisions had reasonable basis.’ counsel’s Bardo, 352, 678, 629 105 A.3d 684 wealth v. Pa. 604). 17, matters of 79 A.3d “Where

Roney, Pa. concerned, finding a chosen strategy ‘[a] tactics are Pennsylvania approach derives from our 15. "The three-factor utilized in Pierce, Pa. application in v. Commonwealth (1987), prejudice' the United ‘performance test articulated Washington, 466 U.S. Supreme Court in States Strickland v. Dennis, (1984).” S.Ct. L.Ed.2d 674 Commonwealth (2008). 159, 174, 950 A.2d strategy lacked a reasonable basis is not warranted unless it can be concluded that an alternative not chosen offered a for potential success substantially greater than the course ” actually pursued.’ 4, 33, Commonwealth 624 Spotz, v. Pa. 84 294, Colavita, A.3d 311-12 21, 606 Pa. 993 887). A.2d at To prejudice, demonstrate a petitioner must show there is a that, reasonable probability but inactions, counsel’s actions or the result of the proceeding Strickland, would have been different. See 466 694, U.S. at 2052; 104 Laird, S.Ct. 332, Commonwealth v. 632 Pa. 119 972, (2015); A.3d 978 Tedford, 639, Commonwealth v. 598 Pa. (2008). 659, 1, 960 A.2d 12 Failure to any establish prong test will defeat an ineffectiveness claim. Strickland/Pierce Walker, 601, Commonwealth v. 612, 1, 613 Pa. 36 A.3d 7 (2011).

Because Appellant represented by was new counsel on direct appeal that appeal predated v. Commonwealth Grant, 48, (2002), 572 Pa. 813 A.2d required 726 allegations raise of trial counsel’s ineffectiveness at that time, on pain 9544(b); Fletcher, § waiver. See 42 Pa.C.S. 515, 604 Pa. at 772-73; 986 A.2d at Commonwealth v. Hub hard, (1977).16 Pa. 472 A.2d 695 n. 6 Although Appellant did raise allegations several of trial counsel’s inef fectiveness direct appeal, regarding the issues trial coun sel’s performance that Appellant currently this asks court note, decide not among however, were them. We that Appel January lant’s petition amended PCRA included the following claim:

To the prior extent that counsel failed properly investi- gate objections make the arguments raised throughout trial, this petition, post-trial motions and on direct appeal, ineffective, were violation of Peti- rights Fifth, Sixth, tioner’s under the Eighth Four- 16. Grant held generally that claims counsel's ineffectiveness should review, overruling prior procedural wait until collateral rule an- Hubbard, required nounced in which ineffectiveness claims be appellant raised as soon as an had new counsel. See Commonwealth v. 589, 597, (2005); Bridges, 584 Pa. Commonwealth Edmiston, 284, 294-95, (2004). A.2d to the United Constitution and

teenth Amendments States Pennsylvania of the Constitu- corresponding provisions tion. Additionally, Appel-

Amended PCRA Petition filed 1/25/02. claims of trial lant’s to this Court attaches each brief layered appellate a claim that counsel’s ineffectiveness counsel assistance for those failing i-endered ineffective include appeal. claims on direct already claims of trial counsel ineffectiveness have

Where been, been, only have previously litigated could ... challenge a can mount a to the way petitioner successfully “layered” effectiveness counsel is assert claim ineffectiveness, that establishing appellate first counsel challenge in of trial failing ineffective effectiveness counsel, as a threshold trial requires which matter in the first instance. counsel was ineffective Dennis, 159, 175, v. 597 Pa. 950 A.2d Commonwealth (2008) (citation omitted). prevail upon layered To ineffec argument on the petitioner present tiveness claim must three of the test as to each relevant prongs Strickland/'Pierce Reaves, v. 592 Pa. layer representation. Commonwealth (2007). 1119, 1127-28 134, 147-48, 923 A.2d Thus, may still be entitled to PCRA relief if he can demonstrate ineffectiveness as trial counsel and both contends appellate Appel- counsel. The Commonwealth accomplished only lant has not this his brief offers because of appellate assertions counsel’s ineffectiveness which fail bald adequately address all three criteria toas Strickland/Pierce layered (citing those claims. Commonwealth’s brief 13-15 Steele, 341, 361, 599 Pa. Commonwealth (2008) for an proposition appellant that “where fails to all of the meaningfully prongs discuss three ineffectiveness test, for this Court is ‘constrained to find such claims waived ”).17 lack of development.’ failing any

17. The Commonwealth also faults to cite to counsel, appellate disputes Appel- affidavit or certification from obligatory upon appellate it lant’s claim that is raise merito- claims, asserting “appellate rious instead that it is well established that however, The acknowledges, Commonwealth that this Court may has that it appropriate held be to remand the rather case deny than relief where in deficiencies claims of developing appellate counsel ineffectiveness “mirror those the PCRA Walker, Id. at n. 2 pleadings.” 613 Pa. at 8-9). here, A.3d at Remand unnecessary the Common- avers, assuming wealth because even claims can below, to mirror presented deemed those he has already had opportunity develop them, and, ample support any event, underlying claims are without merit. Court has found

This cases where the arguable merit of the claim of underlying trial counsel’s has ineffectiveness established, remand may been be warranted for opportuni ty to correct a pleading remaining deficient two prongs of the regarding appellate test inef counsel’s Stickland/Pierce Moore, 279, 290, fectiveness. Commonwealth v. (2004) (italics added). concluded, A.2d We have also however, that is no there need remand a PCRA petition petitioner when the has not carried his bur Stickland/Pierce in relation underlying den to the claim of trial counsel’s ineffectiveness, if petitioner “since even the were to craft able in perfectly layered argument claim, support Id., petitioner’s claim him to (citing would entitle relief.” Rush, 3, 14, Commonwealth v. 657-58 (2003)). Thus, we need not remand if has not met of proving his burden trial counsel’s ineffectiveness. See also Reid, (where 171-72, 627 Pa. at A.3d the Common objection solely wealth’s waiver inadequacy based Appellant’s presentation his claim of appellate counsel’s merits, ineffectiveness, we will address the claims on the appropriate). where mind,

With these standards we turn the claims raised by Appellant. may reasonably forego arguable issues of merit order likely claims believes are

focus on he more to succeed.” Common Robbins, 259, 288, wealth’s brief at 13-14 v. Smith U.S. 746, 765-766, (2000)); Murray, S.Ct. 145 L.Ed.2d 756 Smith 527, 536[, 2661, 2667, (1986). 106 S.Ct. 91 L.Ed.2d 434] U.S. failing develop 1. Counsel was ineffective Claim capacity, voluntary passion, diminished heat of murder; appel- first-degree intoxication defenses to ineffective; lower court counsel was and the late summarily denying claim an erred this without evidentiary hearing. claim, of this we first address reaching the merits

Before portion that a of it has been the Commonwealth’s assertion so, recognize path parties To the circuitous waived. do we Although Court. have traveled reach this now developed each argues that trial counsel should have passion, capacity, heat of diminished three defenses intoxication, request post- he did not voluntary originally ground. on that Janu- particular relief conviction as petition amended PCRA instead asserted ary grounds for relief that: TO RELIEF FROM

PETITIONER IS ENTITLED HIS TRIAL AND SENTENCE BECAUSE CONVICTION RENDERED ASSISTANCE COUNSEL INEFFECTIVE AT PETITION- OF THE OF COUNSEL GUILT STAGE BY TRIAL TO PROPERLY CONSULT ER’S FAILING TRIAL, TO TO PETITIONER PRIOR WITH FAILING ADEQUATE PERFORM AN PRE-TRIAL INVESTIGA- INVESTIGATE, TION, TO PROCURE AND FAILING THE IN OF AND PRESENT EVIDENCE SUPPORT TO DEFENSE OFFERED THE OF ONLY CHARGE MURDER—VOLUNTARY INTOXI- FIRST DEGREE RESULT, A CATION. PETITIONER’S RIGHTS UN- AS FIFTH, SIXTH, FOUR- DER THE EIGHTH AND TO THE UNITED TEENTH AMENDMENTS STATES 9, 13 AND ARTICLE CONSTITUTION SECTIONS THE AND 14 OF CONSTITUTION PENNSYLVANIA WERE VIOLATED. i-ii, 1/25/02, Claim II petition

Amended PCRA filed in original). (capitalization part, petition supported the amended PCRA pertinent

In that, in of trial coun- argument light this with detailed claim voluntary a intoxication pursue sel’s decision diminished capacity defense, counsel was in ineffective failing lay obtain and expert testimony to support defense. only that The mention trial counsel’s failure a develop mental deficit diminished capacity defense was a allegation bald that “in addition to his present failure to to the jury overwhelming evidence of [Appellant’s] diminished capacity due to his PCP offense, use at the time of the trial counsel also failed investigate and to the present jury readily evi- available dence of deficiencies,” id. [Appellant’s] mental and the PCRA petition amended not assert or argue did that trial for failing was ineffective to develop passion a heat defense.

The matter pending was Judge before Jones for nearly years three more before any made reference to trial to develop counsel’s failure defense, heat of passion and that reference came not in a court approved supplement petition, PCRA “Response but in Opposi tion to the Commonwealth’s Supplemental Motion to Dismiss Discovery Requests.” Response filed 9.18 12/23/04 There is no that Appellant indication requested that PCRA court consider this be an document to amendment to Appellant’s PCRA petition, there is no indication court explicitly granted leave to amend.19

By the time raised the of passion heat issue in the “Response in Opposition the Commonwealth’s Supplemental Motion to and Discovery Requests” December, Dismiss 2004, the PCRA court Atkins in Appellant’s was embroiled claim, which by argument was followed in 2005 on applica- Therein, Appellant 18. asserted that "there available evidence passion this investigate was a crime of that trial counsel failed to "Response Opposition Supple- introduce.” to the Commonwealth's Discovery Requests” mental Motion to Dismiss and filed at 9. The Rules contemplate of Criminal Procedure that amendments to pending petitions "freely PCRA are allowed achieve substantial 905(A), justice,” Pa.R.Crim.P. but Rule 905 amendments are not "self- authorizing” petitioner may simply pending such "amend” a Porter, petition supplemental pleading. with a See Commonwealth v. 510, 523-24, (2012). "Rather, explicitly the Rule only permitted states that amendment direction or leave of the Id., PCRA court.” 613 Pa. at 35 A.3d at 12. Grant, (spurred by 2006 claim supra; by Appellant

bility of notes) the Common Lecture” “Sagel the disclosure 79, 106 Kentucky, violated 476 U.S. S.Ct. wealth had Batson (1986) (determining per that race-based 1712, L.Ed.2d 69 protection); and a claim equal strikes emptory violated must vacated because he that his conviction by Appellant competency hearing. Although a pre-trial not receive did issues,20 Appellant’s on the bulk these Judge Jones ruled for relief remained out underlying request post-conviction in Jones moved to the Federal standing Judge when took his Judge place. and Sarmina bench evidentiary hear- Only Judge after Sarmina conducted claim turn ing Appellant’s penalty phase mitigation did she guilt phase unresolved claims. N.T. Appellant’s 10/24/11— 10/28/11; time, By more than ten N.T. 22-23.21 6/22/12 passed petition since Amended PCRA had years filed, nearly eight years passed had since had been allegations regarding inserted counsel’s failure Appellant into his “Response Opposi- raise a heat of defense passion to Dismiss Supplemental tion to the Commonwealth’s Motion matters, Further Discovery Requests.” complicating his “Motion for when filed Reconsideration and Law,” Post-Hearing Memorandum he Supplemental as a “claim that passion couched the heat of issue had been adjudicated,” submitted but not without acknowl- previously granted permission Jones never edging Judge had petition the PCRA add the claim. Motion supplement Supplemental Post-Hearing Reconsideration and Memoran- added). at 1 (emphasis dum of Law filed 8/28/12 claim, Judge Jones allowed to withdraw the denied Atkins 20. competency denied relief on the relief on the Batson claim claim in 2008. Sarmina, During hearing Judge Appel- before an October Judge to the court that Jones had limited the lant’s counsel indicated evidentiary hearing penalty phase Appellant's issues. N.T. 10/15/10 proceedings of the October at 11. At the commencement Sarmina, Judge to the court that before counsel indicated hearing question been limited to the of whether trial counsel had failing present adequate mental health evidence as was ineffective mitigating pertained factors set forth in 42 it to the Pa.C.S. 9711(e)(2) (e)(3). §§ N.T. at 6-7. On January 2013, Judge Sarmina heard argument on the reconsideration of Appellant’s penalty phase mitigation claim and additional guilt phase claims. Appellant briefly argued trial counsel’s failure to present evidence in support volun- tary intoxication and mental deficit capacity diminished de- fenses not but did address counsel’s failure to present a heat passion of defense. The Commonwealth not did comment on to properly failure raise the passion heat of claim grounds relief, as for post-conviction neither itwas addressed by Judge Sarmina, who decided the conclusion of the hearing that trial counsel was not ineffective. N.T. 1/3/13 In 29-30. so determining, Judge Sarmina first addressed trial counsel’s failure assail to form ability the specif- ic kill, intent to noting did, that “the evidence as whole in fact, show that [Appellant] of capable was the forming specific intent to kill very clearly and showed that in [Appellant] acted a deliberate manner.” Id. Additionally, Judge Sarmina deter- mined that trial counsel not obligated was to seek additional expert Dr. opinions after Tepper findings indicated his would not Id. at 30.22 helpful be of guilt phase Thus, the trial. Judge Sarmina not separately did address mental deficit diminished capacity generally but found the that evidence demonstrated that Appellant capable forming of spe- the cific intent to kill trial and that counsel reasonably had re- tained and Tepper, relied on Dr. thus supporting finding trial, During penalty phase Appellant complained 22. of he believed psychologist that his from brought "records should been have forth trial,” before the end of this and asserted that trial counsel rendered failing ineffective assistance for to do so. N.T. at 3. Trial 2/17/96 explained response although Tepper that he had retained Dr. defenses, potential guilt phases to build he decided not to call Dr. Tepper testify during guilt phase Tepper after "Dr. indicated that on opinion based he not examination could render an sufficient to further, guilt phase,” assist the defendant at the "[h]e that indicat- specifically ed to me he probably that could not and it would be testify phase....”. harmful if he were called defendant at that N.T. responded Appel- at 12-13. The Commonwealth also complaint, pointing lant’s out that the thrust of the defense at trial was Appellant overwhelmingly powerful had acted under an first-time PCP, testimony Tepper’s use of and that Dr. contradicted that. Id. at for failing ineffective not found that trial counsel should develop that defense. passion de- a heat presentation regard to

With counsel was not fense, concluded that trial Judge Sarmina testimony sup- present psychiatric failing for ineffective could make of such a defense because port showing legal provocation sufficient requisite objective were not victim; thus, elements the defense all the Judge Sarmina further noted 30-31. present. Id. at legal provocation, sufficient he prove could if even killing happened suddenly so as that the to establish failed Judge also acknowl- cooling period. Id. Sarmina preclude a appeal this Court had determined direct edged that Mason, 559 provocation. no there was evidence 714).23 setting forth her After reasons Pa. at 741 A.2d at record, Judge denied reconsidera- doing for so on Sarmina Appellant’s request post-conviction tion and dismissed court, indicating that the would receive parties relief open at 32. of the dismissal. N.T. no notice additional 1/3/13 of Judge timely appeal Sarmina’s denial Following 1925(b) Adding to relief, a Rule statement. Appellant filed however, despite arguing developing procedural quagmire, for Reconsideration to in his “Motion and Judge Sarmina of Law” that trial Post-Hearing Memorandum Supplemental three defenses of develop each discrete failed volun- capacity mental deficit diminished passion, heat 1925(b) Rule tary capacity, intoxication diminished Judge only Appellant that intended statement Sarmina alerted to ... and elicit claim on “counsel failed obtain appeal petition- testimony that would demonstrate expert witness and than murder.” Pa. guilty third-degree of no more er was supra, appeal on As this Court determined direct 23. noted passion support a defense since record did not heat of stabbing of the that he could he was so at the time claimed intoxicated exchanged give rise to whether words were which would not remember defense, passion was no evidence that the victim did a heat of there stabbing provoke Appellant, and anything immediately before just lying on when his mother was the bed victim’s son testified that Mason, began stabbing room and her. 559 Pa. Appellant came into A.2d at at 714. 1925(b) R.A.P. at 2, statement 5. result, Matter As a response 1925(a) contained in Judge Sarmina’s Rule opinion harkens back to Appellant’s original claim that trial counsel failed “investigate, procure present evidence” in sup- port of the defense of voluntary intoxication, Amended PCRA petition and addresses the reasons trial counsel should not be found ineffective for failing to develop that defense.

In doing so, Judge initially that, Sarmina opined to the extent Appellant asserts trial counsel erred in failing call lay witnesses Larry Lawhorn and Brian Mason in support of a voluntary intoxication defense,24 such an allegation was previously litigated by this Court on appeal, direct Pa.R.A.P. 1925(a) Opinion Mason, filed at 19-20 (citing 6). n. Turning A.2d 716 n. whether trial counsel was ineffective for call failing to a mental health expert to explain the effects PCP opine that the drug prevented Appellant from forming kill,25 the specific intent to Judge Sarmina reiterates her conclusion that trial counsel was not (1) ineffective for failing to do so because counsel acted appropriately by retaining Dr. Tepper, experienced an expert in forensic and clinical psychology, evaluate purposes (2) building potential guilt defenses; phase coun- sel reasonably Tepper’s relied Dr. indication counsel that on his based examination of Appellant he not an could render opinion to during assist the guilt phase and to might do so defense; instead be harmful to the counsel was obligated to search for additional, different, expert opinions receiving after Dr. Tepper’s opinion. Id. at 21-22 (citing Bracey, 264, 278, Commonwealth v. Pa. 942- petition argued despite PCRA amended trial coun- pursue guilt defense, phase sel’s decision to voluntary intoxication investigation prevented trial counsel’s lack of pre- trial counsel from senting lay witnesses provide corroborating Lawhorn Mason to testimony Appellant drug morning was in a induced state on the of 20-21, petition the murder. Amended PCRA filed at 23-24. 1/25/02 Appellant's 25. petition argued amended PCRA that trial counsel failed present PCP, expert testimony to explain put effects of context, Appellant's day PCP use on the of the offense into and to offer opinion drug prevented an Appellant forming specific that the from 24, petition intent to kill. PCRA Amended filed 26. at for (2001)) (“An not attorney will be deemed ineffective of a expert testimony support choosing present not to conducting if an after reasonable expert, particular defense that he could not aid evaluation, attorney informed the defense(s) issue.”).26 at Rule as of a discussion

Additionally, part 1925(b) by limiting the the PCRA Court erred claim not evidentiary hearing by permitting additional scope guilty of no more Appellant illustrate that evidence to murder, Judge opined that with third-degree Sarmina than of a mental deficit diminished regard presentation to the defense, Tepper Dr. an trial counsel retained capacity testimony guilt phase attempt expert to secure including support any defense first-degree, to murder Dr. Tepper examined capacity. mental deficit diminished defenses, for such potential guilt-phase evaluated defense, capacity mental diminished but including the deficit testify could not Tepper Dr. informed trial counsel that he defenses; thus, trial counsel cannot be any guilt-phase support on reasonably relying Tepper’s for Dr. deemed ineffective evaluation. Id. 22, n. 19.27 learned 1925(b) language from the of his Rule state

Veering of his specific language to the more “Motion ment back Post-Hearing Memoran- Supplemental Reconsideration and regard Judge conclusion in this was not Sarmina notes that her by Tepper Appellant's criticism that Dr. had not been able altered light provide Appellant in of trial counsel’s failure to properly evaluate indicating Appellant’s Appellant's low the doctor with school records IQ, Judge such information irrelevant because Sarmina deemed opinion concerning the Tepper Dr. could have formed an whether 18, voluntary defense of intoxication. n. claim, by addressing way Judge this Sarmina determined 27. Also hearing genuine necessitating no issue of material fact there was failing present was ineffective for a heat of whether trial counsel since, appeal, passion Court on defense as determined this direct objective showing requisite of sufficient to make the failed victim, legal provocation by was not ineffective for thus counsel passion failing psychiatric testimony support a present heat present. of the Rule defense where all elements defense were Watson, 1925(a) Pa. Opinion at n. 19 v. Commonwealth (1989); Sheppard, 436 Pa.Su- 565 A.2d 137 563, Commonwealth (1994)). per.

399 Law,” Appellant currently dum asserts this Court trial counsel was for failing ineffective develop defenses passion, heat of mental deficit voluntary intoxication capacity. Appellant’s diminished at brief 10.28The Common wealth asks that we find waived the portion of this claim pertaining the heat passion because was not defense it Appellant’s raised in petition amended PCRA failed to obtain leave court to supplement petition Reid, include it.29 Commonwealth’s at 25 (citing brief 627 Pa. Baumhammers, 173-74, 484; at 99 A.3d at 625 Pa. 92 at Elliott, 730-731; A.3d at Commonwealth v. 236, 261, 622 Pa. (2013)).30 430 Appellant does not specifically 1925(b) general 28. While Rule claim is more than the issue Court, currently he before specific raises this the more claim contained 1925(b) may in subsidiary general his brief be viewed as to the Rule allegation of if it error were raised before PCRA See court. 1925(b)(4)(v) ("Each Pa.R.A.P. error identified in the will Statement every subsidiary deemed to include issue contained therein which was court.”), raised in trial Procedure, Pennsylvania 29. to the Pursuant Rules of Criminal “[e]ach ground upon support requested relied in of the relief shall be stated in petition. ground Failure petition state such in the shall preclude raising ground any proceeding the defendant from for 902(B). post-conviction collateral relief.” Pa.R.Crim.P. As we noted above, pending petitions “freely amendments to PCRA are to be al 905(A), justice,” lowed to achieve substantial Pa.R.Crim.P. but such "self-authorizing” filing amendments simple are with the of a Porter, 523-24, "supplemental” pleading. See 613 Pa. at 35 A.3d at 12. Instead, permitted only by amendment is "direction or leave of the Id.., PCRAcourt.” 613 Pa. at 35 at 12. A.3d Reid, petitioner In a PCRA first-degree sentenced to death for 30. supplemental petitions murder filed a seeking series of PCRA without so, receiving permission prompting urge to do the Commonwealth to Reid, this Court to find the issues contained therein waived. 627 Pa. 171-72, 1925(a) 99 A.3d at 483. The opinion, PCRA court’s Rule however, issues, light addressed of "the Court’s inclination Id., 173-74, liberality proceedings.” in these 99 A.3d at 483. This nonetheless found Court waived those claim that raised for were apparently supplemental petitions, noting the first time in unauthorized that: Notwithstanding indulgence addressing the PCRA court’s all of claims, agree upon Appellant we that it was incumbent identify supplemental petitions where in the record the were author- ized the record if such reconstruct and/or authorization provided off the record. has not done has so. This Court filing supplements condemned the unauthorized and amendments 400 supplements raised in such petitions, and held that claims to PCRA 430; Elliott, 622 Pa. 80 A.3d at subject to waiver. See are 34-36, 615-16; Porter, 613 Pa. at Roney, Pa. at A.3d (2012). A.3d 173-74, Id., Pa. A.3d at Baumhammers, petitioner to death first- a PCRA sentenced In degree brief Court a claim that did not raised in his to this murder petition, prompting the among in his PCRA appear the claims raised Baumhammers, finding of 625 Pa. at urge to a waiver. Commonwealth 389, petitioner that claim was at The reasoned 92 A.3d previous preserved because it was "related to the claim” nonetheless pleading responsive to the Commonwealth’s a and was discussed situation, Addressing petition. this Court Id. answer to the PCRA explained; "may judge procedural rules reflect that the PCRA Our criminal petition post-conviction grant ... a for collateral to amend leave time,” freely any and that amendment "shall be allowed to relief at 905(A); justice.” see achieve substantial Pa.R.Crim.P. Common 613, 633, Williams, Pa. 993 573 wealth (noting procedural contemplate a "liberal that the criminal rules Nevertheless, policy petitions). is clear for PCRA it amendment” obtained, sought to from the rule’s text that leave amend must Porter, hence, "self-authorizing.” amendments are not 613 [] 12, Thus, petitioner may example, not at for a Pa. at A.3d supplemental pleading,” pending petition "simply with a 'amend' Rather, permitted "explicitly Rule 905 states that amendment Id. Court,” 523-24, by only direction or leave of the PCRA 12; Williams, also 573 Pa. at 828 A.2d at A.3d at see court retains discretion whether or not to (indicating that the PCRA petition). post-conviction grant It follows that a motion to amend automatically petitions petitioners may via not "amend” their PCRA responsive pleadings.

Id., Noting petitioner not A.3d did 625 Pa. at at 730. claim; petition PCRA the claim seek to amend his to include the leave claim; prior within the the PCRA could not be construed as subsumed Appellant’s responsive pleading request for as court did not treat amend; request; no discussion of such a leave to the record contained in its did address the new substantive contention and opinion disposing waived, court not claims, Appellant’s we found the claim PCRA solely recognized cannot be further that "waiver avoided by Complained of to Concise Statement of Matters reference statement, provided Appeal, which is notice of as such a after the filed, already operate add appeal has been cannot to new substantive Id., petition itself.” claims were not included the PCRA Pa. 391-392, 92 A.3d at 731. Elliott, first-degree petitioner to death for In a PCRA sentenced supplemental brief to the PCRA court a claim that murder raised in a failing personally meet him for with trial counsel was ineffective prepare prior for This the claim to trial or otherwise trial. court found waived, explaining: petition Elliott did not include his PCRA the claim Because failing meet with him alleging counsel’s ineffectiveness for trial trial, prior permission petition to amend and did not obtain his disagree the Commonwealth’s accusation that he did obtain leave of court petition amend PCRA to include the heat of passion Instead, addressing issue. this as issue of a part larger challenge to the various “deficiencies” raised Commonwealth,31 Appellant asserts the PCRA court’s to give failure notice its intention to as dismiss required by Pennsylvania Rule of Criminal Procedure 909 him denied opportunity respond dismissal and deficiencies, remedy the requiring tous remand the matter.32 reply brief 7-10. Appellant’s argument is misplaced. He did not receive notice of (and dismissal failure properly amend accompanying to, opportunity presumably, seek to cure the deficiency by properly amending) because that was not the ground upon Judge which Sarmina the issue. dismissed In- stead, procedural because of the irregularities of this case, in part caused by Appellant’s own counsel’s indication to the court passion that the heat of issue pleaded had been properly and was awaiting determination, Judge recog- Sarmina not did the issue had not been nize that As properly pleaded. such, same, Porter, include the the issue is waived. See Commonwealth v. (holding Pa. A.3d petitioner that a PCRA may by merely not raise new claims supplementing pending a PCRA petition without court authorization “wrongly because to do so would subvert the time petition limitation and serial restrictions of the PCRA”); 902(B) "[fjailure (providing Pa.R.Crim.P. that the to state ground petition such a in preclude [for relief] the [PCRA] shall raising ground any defendant from proceeding post- that in for relief”). conviction collateral Elliott, 622 Pa. at 80 A.3d at 430. Appellant specifically allegations references the Commonwealth’s neglected that counsel to substitute a or certification affidavit withdrawn; appellate original counsel after the was certification that filed; report Dr. Mash’s was never supple- claims raised in ments permission were waived for lack of affirmative from the lower Appellant’s Reply court. brief filed 9 Commonwealth's 2/2/15 14, 21, 25, 30-31, 36, 63-64, 82). brief at requires provide capital petitioner 32. Rule 909 the PCRA court to dismiss, obliges notice of the court's intent to further PCRA court in to "state the notice the reasons for the dismissal.” 909(B)(2)(a). given, petitioner Pa.R.Crim.P. Once notice is has 20 deficiencies, days respond attempt perceived which to to cure the 909(B)(2)(b). Pa.R.Crim.P. on it and ad- argument and oral allowed both written she 25-30, merits, N.T. before on its see dressed it failing not ineffective for determining that trial it could not be defense because passion heat pursue provocation. necessary of the element in the absence proven never is correct that Although the Commonwealth for relief to include request to amend permission received claim, is partially the Commonwealth passion heat fact, recognize failure to for Judge Sarmina’s responsible to contradict only failed prosecutor as the court, argued to the also issue counsel’s misstatements but pled. if it hearing properly as had been January at the at 25. Nevertheless, it that claims raised out is well-settled subject to petition PCRA are waiver of a court-authorized side timely raises a the Commonwealth regardless whether Reid, are objection they to them at the time raised. specific 173-74, the Commonwealth Pa. at 99 A.3d at 484. While case, in that we did urged to find in Reid this Court waiver upon conditional the Commonwealth not hold that waiver was Instead, unauthorized claims. our decision objecting first sought had petitioner whether the depended only upon supplemen through to amend his claims permission received had not petitioner Reid petition. Finding tal claims to found his sought permission, the court’s we waived. informing the onus of the PCRA petitioner

The bears through claims an to add amended court that she seeks he and, leave to freely grant the court shall petition, response, justice consistent so achieves doing substantial amend where 905(A). above, As of Pa.R.C.P. described with the dictates permission to seek the PCRA court’s properly failed include, time, for the first petition PCRA amend that trial theory claim founded on layered ineffectiveness “heat of capacity a diminished presented should have trial. entertained the Judge defense at Sarmina passion” during evidentiary merits hear newly-raised theory on its not ing part as of a policy to authorize and address all new claims at had, fact, that time—she no adopted such policy33 in apparent —but upon reliance the parties’ taking up argu of ment the claim if it as had been properly pleaded at some point Judge We, before therefore, Jones. find that Appellant has waived heat of passion claim for failure to raise it in an authorized petition. amended PCRA if,

Even under the particular case, of circumstances this we willing were Judge view Sarmina’s opening statement at the 3, 2013, January evidentiary as hearing implicitly authorizing all claims, new including Appellant’s passion claim, heat of so as to preclude application of waiver doctrine herein, we would no still find error Judge Sarmina’s determination trial not counsel did render for assistance ineffective failing to present lay and expert testimony support of a “heat of passion” defense. engage We merits of review this ineffective assistance claim first.

Applying the governing standard ineffectiveness PCRA, claims begin by under the we reviewing Appellant’s assertion that this underlying claim is of arguable merit because there was that Appellant evidence acted out heat passion, presentation evidence, and the of such coupled with expert testimony, would have raised a reasonable doubt as first-degree murder. at A Appellant’s brief 14. heat passion defense is a partial defense that addresses the element and, intent if argued, successfully mitigates first-degree mur der to third-degree Hutchinson, murder. See Com. v. (2011). It seeks show that guilty murder,

defendant is of voluntary manslaughter, by not proving that at killing the time he or she acting under sudden and passion resulting intense from serious 3, 2013, January hearing, Judge 33. At the outset of the PCRA Sarmina clearly purpose: stated its "We here [are] for reconsideration as well as any might Judge additional claims have been addressed you thought Judge Jones but which should be addressed.” Id. at 2. As Jones could neither nor have "addressed” "failed to address” a "claim” place, that was never before him in raised the first Justice Sarmina’s contemplating statement only must be understood as those claims already raised before PCRA court. 404 2503(a) (“[a] § 18 victim. See Pa.C.S. by the

provocation justification lawful individual without kills an person who killing of he if at the time the manslaughter voluntary commits from resulting intense passion acting is a sudden under killed.”). the by ... individual provocation serious passion, heat of successfully argue In order victim, (1) of the part on the provocation prove defendant must with the (2) man confronted who was a reasonable to the extent “impassioned become would provoking events (3) that reflection,” cool the incapable of his mind was off time cooling sufficient between not have did defendant Busanet, See Commonwealth v. killing. and the provocation (2012) no 34-35, 35, (holding evidence of 54 55 Pa. A.3d 618 against Appellant threats the victim’s were provocation where affording Appellant shooting, thereby to the prior made weeks Martin, reflection); Pa. in cool 607 engage time sufficient (“In there determining whether was 186, 5 A.3d 189 in a passion to create uncontrollable provocation sufficient killer actually whether the we determine person, reasonable provocation lead passion, of whether acted the heat responsible slaying person to the directly off cooling killer had sufficient whether the provocation, and Williams, 391 n. time.”); Pa. Commonwealth (2009) (a occur n. violent confrontation the murder would serve reduce ring days before two not occur manslaughter, killings since do degree guilt time for there sufficient passion the heat of under where might have existed provocation between cooling whatever Further, missing, any element killings). “[i]f the actual Martin, also Com supra. fails.” See provocation defense Sanchez, 253, 314, A.3d monwealth v. (2013) (“If provocation there wanting—if be be any these provo cause of or without sufficient passion, passion without cation, cool, has resumed its time to and reason there be murder.”). killing will sway, Here, arguable merit declaring that there was required defense, posits that passion heat provocation came in the form of the cumulative effect “stormy relationship” with the victim and her revelations of infidelity. Appellant’s brief 14-15. Appellant asserts that such revelations are shown through the declaration of Appellant’s Uncle, Lawhorn, Larry that Appellant told Law- horn that the victim to Appellant boasted of her infidelity they (2) while dating; were and Appellant’s statement to Dr. Robert that Sadoff the victim Appellant told about her sexual exploits with other men during her relationship with Appel- lant. Id. at (citing Lawhorn; Declaration of Larry N.T. 10/24/11, Sadoff). 31-32, Declaration of Dr. Robert Appellant does not specifically that, assert at the time of killing, victim’s provocation act, him to nor caused he does address the implications of a off cooling period.

In response, the disputes Commonwealth arguable merit pursuit defense, of a of passion reflecting heat that Appellant made no claim the anything victim did immediately prior to killing him, to provoke let alone hypo- that such provocation thetical Appellant incited to a sudden and intense passion, noting instead, and that Appellant testified that he no had recollection of the or killing his state of mind when committing it. Commonwealth’s at 26. In arguing, brief so the Commonwealth hearsay as inadmissible assails Uncle’s rendition him Appellant allegedly what told victim allegedly Appellant, told further posits regard- and that less, of infidelity revelations are not provocation sufficient support a heat of passion defense. Id. at 27 Common- Miller, 1, 20-21, wealth v. Pa. A.2d 649-51 (allegations of past victim’s in- infidelities and flirtatiousness Watson, provocation); sufficient 523 Pa. at A.2d (awareness victim, appellant’s former long-time girlfriend, had a boyfriend new not legal sufficient provocation)). The Commonwealth additionally asserts that expert testimony regarding Appellant’s state mind would have become rele- vant only Appellant had been legal able show sufficient provocation, not, further, which he could trial counsel cannot be failing investigate Appellant’s faulted recollec- crime, told Appellant of the because

tions the circumstances at 28. that he had no such recollections. trial arguable to show there was has failed Appellant We find defense, presented has not passion to a heat of merit found to have acted may trial counsel be upon which basis suggests a heat of unreasonably. To the extent provoking actions may purely defense be based passion resulting not to the contemporaneous statements that are mistaken, is clearly intense passion,” “sudden provocation “passion” and the passage time between as killings will be cooling period, must viewed as be of passion the heat where to have occurred under deemed for cooling provo time between whatever there was sufficient killings. the actual See have existed and might cation Williams, supra.34 argument may construed as

To the extent was a event statement suggesting provoking there and/or killing, suggestion to the immediately prior specious such testimony that he not light of own does recall Appellant’s night his actions from the before the murder until after it was committed, provoked act much less remember what those ions,35 testimony of the victim’s son that she did and the v, McCusker, regard Appellant’s reliance on Commonwealth 34. With making proposition that "in 448 Pa. 292 A.2d 286 for objective provoca- as to what constitutes sufficient the tion, determination impact may placed upon be the cumulative of a series of reliance omitted) events,” Appellant’s (emphasis brief at 14 related McCusker, 290), neglects Appellant A.2d at 448 Pa. at prior case mention that the series of related events that involved a infidelity coupled provoking with two other statements revelation of McCusker, immediately killing. prior 448 Pa. at made to the A.2d 289-290. findings opinion to Dr. Sadoff's do not alter our citation review, Although, upon opinion regard. initial Dr. Sadoff's in this suggest something Appellant be read to that the victim said could him, provoke immediately prior to the murder to since Dr. Sadoff’s facts,” "Appellant's opinion part on recitation of the and was based anything Appellant testified that he did not remember from the since committed, Appellant’s night until after it before the murder was obviously anything hap- could include that recitation of the facts not frame, may during including anything may not pened time crime, immediately before the and thus Dr. have been said the victim nothing prior to the attack merely and was lying the bed. Further, of infidelity revelations have been deemed insuffi cient to constitute provocation purposes of of a heat Miller, passion defense. See Pa. at A.2d at 651 (“In cases, numerous showing evidence history minor disputes allegations past and infidelity has been not to held sufficiently provocative to reduce murder manslaugh ter.”); Dick, 180, 187, Commonwealth v. (2009) (A tumultuous relationship appellant between

his wife argument and their sometime prior to the incident “clearly insufficient” to of passion,” establish “heat appellant prove arguable pursuit did merit aof heat defense). of passion

For Appellant these reasons has to prove argu failed able merit to of a pursuit passion heat of if defense. Even presume merit, we were to such a has arguable defense Appellant must also show that trial counsel’s course of action basis, lacked a reasonable and he has simply not done so alleged. on the omissions based faults trial counsel for failing to develop accounts in “long-term, tense and relationship victim, contentious” specif ically argues that counsel presented should have obtained letters from victim to Appellant expressing her love for him. Appellant’s brief at It 16-17. unclear how such any letters would be of to proving benefit the victim provoked attack, Appellant prior causing him to act out Also, passion. sudden and intense because testi fied that he did not recall the killing, events he could point to no supporting evidence his claim that he in the acted Further, heat of passion. there was no of provoca evidence tion on attack, of the part immediately prior victim to the Appellant the letters faults trial counsel for to failing provide such, obtain do not such it evidence. As was not unreasonable for counsel to forgo to attempting persuade jury that Appellant passion. acted the heat findings suggesting Sadoff’s cannot be viewed as that a such statement

was made.

408 that trial counsel turn claim now

We capacity for a diminished failing develop was ineffective defense, that has failed show Appellant and we conclude regard to trial counsel rendered ineffective assistance with capacity a diminished defense of such defense. A presentation intent to Mil and specific on the element negating is focused or intoxication. voluntary in mental defect may grounded be 312; Hutchinson, 340-41, 611 25 A.3d at Common Pa. See (2012). 63, “To Pa. 47 A.3d Spots, wealth v. defense, a capacity a defendant must establish diminished premedita cognitive that his abilities deliberation prove voluntary or compromised, by tion mental defect so were intoxication, specific he was unable formulate 90-91. A 616 Pa. at Spotz, intent to kill.” A.3d voluntary intoxication cannot be capacity diminished based intoxication, requires mere evidence but rather by made out the defendant was that demonstrates intoxicated evidence requisite to form intent. such an extent he was unable 1, 47, Spotz, v. Commonwealth Pa.

(2006). proves capacity a “For defendant who diminished third-degree mur defense, first-degree mitigated murder Hutchinson, supra Commonwealth Saranc der.” (2005)). hak, 292, 299 A.2d The factual intoxication voluntary which a diminished circumstances under obviously could mounted are different capacity defense deficit diminished than those which would warrant mental Nonetheless, Appellant addresses de capacity defense. has met together purposes establishing he fenses factors and trial showing the three Strickland/Pierce rendered ineffective assistance. counsel initially arguable there merit Appellant exists asserts investigated presented that trial should have claim capacity defense involun- diminished support evidence respect to involun- tary intoxication mental deficit. With intoxication, argues, counsel knew tary with low-functioning mentally struggled substance This years. Appellant’s his teen brief abuse since by family coupled testimony when offered mem- profile, who appear bers viewed to “highly intoxicated” and “paranoid” evening question, should prompted have counsel further investigate into Appellant’s medical and which, history, asserts, corrections pro- would have vided additional of his evidence violent reactions to heavy drug use. Appellant concludes reasonable counsel in trial counsel’s position would then have consulted an as expert to the intoxi- cating of marijuana effects and PCP on Appellant’s mental state.

Contrary however, to Appellant’s position, it is clear trial counsel did undertake such a defense by presenting extensive testimony Appellant, mother, from his and his broth- er, Kevin, regarding Appellant’s highly intoxicated state be- (fueled fore the murder part by first-time use PCP to the point where out he completely appeared blacked to be hallucinating), dazed and appearance unusual Moreover, after the crime occurred. pursued he the expert neuropsychological opinion of Doctor as to the Tepper likely effects intoxication on Appellant, but he reasonably opted against using opinion the unfavorable Tepper Dr. offered. Therefore, though supports the record position that there arguable merit to investigating presenting a diminish- defense, ed capacity-involuntary intoxication it also shows that did, fact, trial investigate counsel present the claim. trial took a Whether counsel tack respect reasonable advancing this defense implicates prong reasonable basis claim, this up ineffectiveness which we take infra.

As for arguable merit to assertion trial pursued have capacity- should a diminished mental defense, Appellant deficit fails to establish that record supported Although would have such a defense. capacity diminished doctrine is as a well-recognized permissi ble defense to first-degree murder in appropriate situa tion, recognized this Court has is an the defense extreme ly Taylor, limited one. See Commonwealth v. Travag Commonwealth v.

lia, 108, 128, (1995)). Pa. n. A.2d 359 n. 10 Because the exclusively defense is directed at the negation it must intent, necessari be admissible evidence

specific very ability the criminal defendant’s question into ly put “[ejvidence Thus, that the defen kill. form the intent actions or to control his her acted ability lacked the dant kill, and thus is specific intent is irrelevant impulsively Fur capacity defense. diminished support not admissible not suf thermore, personality with a disorder does diagnosis Hutchinson, 611 Pa. capacity.” fice to establish diminished omitted). (citations Addition 341, and footnote 25 A.3d at 312 as to defendant’s provide insight must the ally, the evidence offense, only relevant time the time of the “the mental state at Spotz, v. capacity defense.” Commonwealth for a diminished (2011) 244, (citing Commonwealth 18 A.3d (requiring a Rainey, 593 Pa. 928 A.2d capacity of advancing a defense diminished based defendant to he had mental she] mental defect [that “establish his [or that affected her] time of murder [the] defect premeditation necessary of cognitive abilities deliberation kill.”)). intent to specific to formulate Here, Appellant suggests which only upon basis capacity diminished to a mental deficit obligated pursue was knowledge Appellant was “low trial counsel’s defense was [intellectually IQ “barely his was dis- functioning,” above and, level,” a child “learning he had difficulties” as abled] uncle, from a “nervous condi- according Appellant’s to suffered true, if these conten- at 11-12. Even tion.” brief of cognitive abilities delibera- suggest Appellant’s tions do not so mental defect premeditation compromised tion and were kill, specific to formulate the intent that he was unable from such mental deficit at the that he suffered much less Further, any support the evidence stabbing. time may provided have learning disabilities IQlow was countered capacity for a mental defense deficit diminished attack, that, Appellant at the time by the evidence of deliberate and reasoned fully capable appeared attempt negotiate by Appellant’s as lucid thought, exhibited after victim’s house and his sober demeanor access Further, merit to a arguable turning police. himself in to mental deficit capacity diminished not suggested defense was to counsel by expert, as Dr. Tepper, knowledge Appellant suffered such IQ diminished and learning difficul- ties, was nevertheless of the opinion that Appellant was indeed able to form a specific intent kill.36 conclude, therefore, We has failed to show there would have been arguable merit to the pursuit a diminished capacity-mental Philistin, deficit defense. 358, 379, Commonwealth v. Pa. (2012) (“[A]s appellant failed to show he lacked ability to form specific kill, intent a diminished capacity defense inapplicable, was and trial counsel defense.”). ineffective for failing present such Even assuming there would have arguable been merit to pursuing voluntary both intoxication and a mental deficit defense, diminished capacity we nonetheless find Appellant has failed to show that trial counsel’s course action lacks a basis, reasonable thus has not met the second prong of the test. regard With to trial counsel’s Strickland/Pierce alleged appropriately failure pursue defenses, these Appel lant accuses of failing trial counsel to records, seek additional failing family interview additional members to learn more how Appellant about reacted on drugs, failing when and consult with an expert provide expert and the with such records testimony. Appellant’s and at brief 12-13.

Appellant specifically trial for failing faults to obtain from records the Albert Einstein Medical showing Center that occasions, Tepper Appellant 36. Dr. testified he met with on two for a hours, during total of Tepper four five which time Dr. collected background Appellant performed information from and intellectual and personality tests on him. N.T. at 72-73. The tests revealed a 2/16/96 73, Dr, IQ IQ verbal scale Tepper and a non-verbal scale also records, police reports, drug reviewed school and and alcohol treat- records, Appellant's ment interviewed Appel- and mother. at Id. reported Tepper lant and Appellant his mother to Dr. that suffered difficulties, learning problems, behavioral which were confirmed the Tepper Tepper records Dr. reviewed. Id. at 75-76. testified Dr. at the hearing light Appellant’s PCRA crime, that actions near the time of the Tepper opine Appellant Dr. could not that was unable to form kill, specific Appellant intent to instead he but believed was "able to intents, killing getting form certain it's whether to locations.” N.T. at 190-91. 10/25/11 Philadelphia teenager, on a and drugs overdosed as Appellant use Appellant’s heavy drug confirming System Prison records and head trauma. attempts” revealing “possible suicide that trial counsel counters Id. at 12. The Commonwealth by pre- intoxication defense voluntary reasonably pursued for the first time used PCP testimony Appellant that senting early morning stabbing, during that night before mumbling and hallu- stabbing Appellant was hours before (behavior from how he markedly different which was cinating stabbing that after high), and normally reacted when nothing and remembered extremely was disoriented Appellant at Commonwealth’s brief 16-17 events. previous of the hours’ 30-36). 156-167; 25-26, The at (citing N.T. 2/13/96 relied properly that trial counsel Commonwealth asserts background family provide accurate his Appellant and they information, and, supply the extent did attempts” “head purported “suicide information about for failing trauma,” incompetent be found counsel cannot 20, Further, Id. the Common- such uncover information. being out, specifically himself denied points, wealth Appellant 58; 6/22/12, 10/24/11, N.T. 17- suicidal. at 20 n. 18). present failing trial counsel also faults

Appellant Appellant longstand- had Brian that testimony brother He high stabbing. appeared before ing drug problem Appellant that Brian have testified specifically asserts would teenager, he from the time drug was a addict high, he was hallucinated when high night on the of the murder. brief looked 190; 10/26/11, Brian Mason (citing N.T. Declaration 4]), The Com- petition, PCRA tab [Appendix Amended only mother and counters that monwealth because counsel, never trial and counsel was cooperated uncle information that any Mason would informed that Brian had defense, cannot deemed have counsel be supported have testify. to call Mason to unreasonably failing Brian acted 18; at N.T. (citing at 19 brief N.T. Commonwealth’s 10/25/11 202). further asserts that The Commonwealth at 10/26/11

418 Brian Mason’s testimony would have been cumulative. Id. at 20.

Appellant lastly that posits “[pjrofessionally reasonable counsel who was in possession of this evidence would have consulted an expert with respect diminished capacity/vol- untary intoxication provided the relevant information to the expert.” Appellant’s at Appellant brief 13. observes his current counsel was an opinion able to from Dr. obtain Mash, expert Barbara an in neuropharmacology, that in- toxicating marijuana effects of PCP, Ap- combined with pellant’s organic underlying syndrome brain history cocaine dependence, prevented Appellant from forming spe- cific intent Id. at 13-14 to kill. (citing of Dr. Declaration brief). Barbara Mash as attached “Exhibit C” to Appellant’s To the extent that the Commonwealth construes as faulting trial for failing counsel an call Dr. Mash as expert witness, the Commonwealth insists a claim has such been by Appellant’s waived failure include it a PCRA Reid, petition. at 21 (citing Commonwealth’s brief 627 Pa. at 484; Baumhammers, 173-74, A.3d at 625 Pa. at Elliott, 430). 729-730; at A.3d at at Pa. A.3d Regardless, the posits, Commonwealth trial cannot be counsel fact, on this did, deemed ineffective basis because counsel an expert, consult Dr. Tepper, who evaluated history abuse, PCP, of drug including and alcohol use impact and the such might abuse had have to control his behavior. at ability Commonwealth’s brief at, 83-84).37 (citing 76-80, N.T. The Commonwealth 2/16/96 emphasizes that trial counsel was to offer nonetheless unable Dr. Tepper guilt phase as a Tepper witness because Dr. told trial “he could render an opinion sufficient .., assist guilt phase” probably defendant “it and would harmful to if ... defendant he testify were called to Id. phase.” (citing 2/17/96, 12-13); N.T. 22-23 longstanding drug discussed his and alcohol abuse with Tepper, including Appellant’s consumption Dr. of alcohol and his use of marijuana, cocaine and PCP. N.T. at 82-84. 50).38 10/25/11, further Dr. defendant; and that the proposed testimony was necessary avoid prejudice to the defendant. Tharp, Commonwealth v. 627 Pa. 101 A.3d Here, 757-58 Brian Mason never trial told counsel that he Appellant observed on the morning crime, before the and counsel only testified that mother Appellant’s and uncle cooperated with counsel’s inves tigation. 18, 38; N.T. N.T. at 202. Fur 10/25/11 ther, Brian’s to Appellant’s statements as of history drag his prior addiction and condition to the crime only would have served corroborate the testimony already presented, and cannot necessary be deemed prejudice avoid to Appellant. do

Neither we find that Appellant proven has that trial counsel unreasonably retaining acted in Tepper, Dr. but de- him as clining call a in guilt-phase witness of a support defense, capacity light diminished Tepper’s Dr. conclu- was, Appellant indeed, sion that capable of forming the intent to kill. Whitney, 618, 632-33, See Commonwealth v. (1998) (trial reasonably counsel decided not guilt phase to elicit from testimony expert he had retained defendant, evaluate the the expert because determined that the defendant failed to meet the criteria for capaci- diminished defense). ty and would have weakened that Appellant also asserts that he suffered as prejudice the result of trial counsel’s regard, course of action in this alleging that had trial counsel conducted reasonable investi gation and provided the results to an appropriate that expert, expert have Appellant’s cogni could testified that “underlying tive dependence, together cocaine impairments intoxicated state the time of the Appel offense” rendered kill, lant incapable forming specific intent to prompting jury to acquit Appellant first-degree murder. Appellant’s brief 18-19. The disagrees, arguing Commonwealth that prove Appellant’s pur- that attempting additional evidence him from prevented and intoxication ported mental deficit to kill not forming specific intent would overcome jury introduced minds of the the evidence as before, which during stabbing, and after the actual demeanor fact, commit the crime in a did, that he deliberate showed at 24. purposeful manner. Commonwealth’s brief arguable In our that no merit conclusion there was light defense, capacity to the of mental deficit diminished pursuit investigated trial appropriately our that conclusion defense, voluntary intoxication and the evi- presented concerning before, of record demeanor dur- dence commission of the crime that ing, and after the contradicted form required specific unable to the assertion was he intent, trial find has but for we shown action, the outcome of this matter counsel’s course would different, thus has not that he have been established prejudiced. that we should an evi- Appellant asserts remand on of trial hearing the issue counsels’ failure dentiary In develop capacity a mental deficit diminished defense. suggesting hearing necessary, Appellant per that a is first Judge it for Sarmina to credit ceives that was unreasonable 1, January hearing, trial statement at counsel’s Dr. supra, Tepper support was unable such discussed that defense, because, asserts, the guilt Appellant statement phase in proceeding. not made the context of an adversarial was 20-21, Appellant not of complain brief did explanation on trial counsel’s Judge reliance Sarmina’s occurred, however, Appellant the time it nor did raise 1925(b) such, As it allegation of error his Rule statement. 302(a) for cannot now relief. See Pa.R.A.P. provide a basis (“Issues cannot not raised the lower court are waived and first on appeal.”); raised for time Pa.R.A.P. 1925(b)(4)(vii) (“Issues not in the included Statement and/or of this provisions paragraph not raised in accordance with Hairston, 143, (b)(4) waived.”); 624 Pa. are Commonwealth (2014) Castillo, 170, 657, Commonwealth v. 84 A.3d (2005) 585 Pa. 888 A.2d (“Any issues not raised 1925(b) waived.”)); Pa.R.A.P. statement will be Common wealth v. Murray,

(Allegation that the trial court violated notions process due by partaking in an parte ex communication waived under 302(a) Pa.R.A.P. objection to failure to lodge due an at the revealed). time the communication was Appellant additionally asserts remand an evidentiary hearing necessary he because raised material issues fact as to trial provide counsel’s failure to Tepper Dr. with Appellant’s school records and psychiatric family records, and the counseling ignored PCRA court trial coun sel’s failure obtain evidence independently support mental deficit diminished capacity defense. Appellant’s brief 12-13). at 21 (citing N.T. 10/25/11, has proven necessity for an evidentiary remand hearing this issue, however. Judge Sarmina did not find credible Dr. Tepper’s testimony that he had received the records he would persuaded petitioner have been to send for neuropsychological testing, and she not persuaded Tepper had Dr. been provided additional he changed records would have his opinion at trial that “not petitioner did exhibit any signs symptoms or major indicative an underlying mental illness or disorder.” conjunction In assertion that trial counsel rendered ineffective for failing assistance to raise prop- and/or erly support capacity defenses, diminished heat passion argues also appellate counsel’s as ineffectiveness follows:

Appellate counsel no failing had reasonable basis for raise counsel’s to investigate [trial failure and present evi- dence supporting a diminished capacity/voluntary intoxi- cation heat of passion/voluntary manslaughter defense] on direct appeal. He could have made this claim as one sounding in trial counsel’s for failing ineffectiveness investigate and raise a meritorious defense. rea- For the above, sons out set the claim would have been meritorious. Moreover, counsel could have had no strategic reason on failing appeal, this claim as the raising raise has also estab- obligatory. Appellant meritorious claim was claim on direct counsel raised this prejudice. lished Had outcome of probability that the is a reasonable appeal, there different. have been appeal would 20. Because has demon- Appellant’s brief on claim of underlying to relief entitlement strated ineffectiveness, however, his of appellate claim trial counsel’s necessarily defeated as well. See counsel’s ineffectiveness Moore, 289, n. n. 3. 580 Pa. at A.2d a New Trial Mason is Entitled to Mr. Claim Whether Improper, Elicited Commonwealth Because Hearsay In- Prejudicial Counsel were Whether Object They Did or Raise the effective When Not Appeal. Issue on Direct witness Terry Brown testified as prosecution Officer above, arrested As Officer Brown Appellant’s trial. noted as victim. The assaulting on 1994 for March at trial: following occurred exchange [the victim’s] What observations about PROSECUTION: you any particular make that led you demeanor did state of mind? conclusion about her Well, frightened like a look she was—she had WITNESS: stop or she did really face like she didn’t want us her tell, I it but knew stop, really want us to was hard as something they approached at which time wrong, I I wagon jumped wagon of the out driver’s side female, Miss, say started to you alright. are said She yes. Honor, objection. Your

DEFENSE COUNSEL: Overruled. COURT: defendant, yes and then the say She started

WITNESS: forehead, had bruises on her she I the female noticed neck, mouth, one on her had one on her she had of girls that a bunch had time the defendant said which her, from the away at which time she snatched jumped it. defendant said he did Objection, Your Honor. DEFENSE COUNSEL: THE COURT: Just a moment. Overruled.

PROSECUTION: And she said what? At pointed WITNESS: which time she to the defendant and she state to me I he did it. automatically placed the defendant under arrest.... I spoke female, with the asked okay her was she I if asked her she press wanted to charges, at which very said, time she was I well, unsure and he’s under arrest for I anyway what see from you what stated, he’s under arrest. She— Whai>-go PROSECUTION: ahead. At

WITNESS: which time if says you she him place under arrest going he’s kill me. 2/9/96,

NT Appellant’s 63-64.41 trial object counsel did not this final nor response, was the by issue raised appellate counsel via post-verdict motion or on appeal direct

Appellant now asserts to this Court: As evident from prosecutor’s question preceding the impermissible hearsay, mid-sentence, which was changed prosecutor hearsay knew that the improper. The prosecutor asked, “What—go Evidently, ahead.” his ques- tion was going But, say]?” [did be “What she prosecutor presumably question feared such a would objection to, draw an changed and so he it go “... ahead.” at 22. Appellant prosecu- brief asserts that the tor’s question called for “highly improper prejudicial hearsay, the statement not fit any hearsay excep- did tions, and trial in failing counsel erred to it.” object 22-23.42 Judge

41. jury "tending Jones later instructed the evidence it heard prove that the defendant was arrested for an offense for which he is not on trial” purpose "tending was before it for the limited to show motive, intent and NT malice.” at 122. hearsay. does not address what constitutes As this Court explained: has "Hearsay, by which ais statement made someone other than the testifying prove declarant while at trial and is offered into evidence to asserted, normally truth of matter inadmissible at trial.” Carson, (2006); Commonwealth v. See 801(c) course, Pa.R.E. & 802. Of out-of-court statements an of this claim we note addressing the merits

Before it has waived asserted that been the Commonwealth has init his amended PCRA failure to include approved amendment/supple or any subsequent court petition Commonwealth’s 30-31 petition. to that brief ment 484; Baumhammers, Reid, 173-74, A.3d Pa. A.3d 430). 729-30; Elliott, 80 A.3d not the claim was A of the record confirms review 25, PCRA 2002 amended Appellant’s January in included in Instead, Supplement it is raised “Petitioner’s petition. to the Commonwealth’s Motion Opposition in Response for pursu- in of his Motion Relief Reply Support Dismiss and 10, 2003. The Virginia,” filed November ant to Atkins v. response specifically asserted: supplement Petitioner, through investigation, counsel and Upon further (“Amendment 905(A) a post- [of to Pa.R.Crim.P. pursuant to achieve freely shall allowed sub- petition] conviction claims: following supplemental justice”), avers stantial A ENTITLED TO NEW MR. MASON IS Claim XVII. THE IMPROP- COMMONWEALTH TRIAL BECAUSE IMPROPER, HEAR- PREJUDICIAL ERLY ELICITED WHEN COUNSEL INEFFECTIVE SAY AND WERE they may if fit one of be admissible declarant within unavailable testimony, hearsay exceptions, recognized such as former several death, against impending inter- a statement belief statement under est, history. family personal or a statement alternative, may be In the out-of-court statements See Pa.R.E. they they non-hearsay, in which case are are admissible because prove purpose other the truth of for some than admissible relevant Johnson, [Raymond] See v. Commonwealth matter asserted. 663, (defendant's (2003) 23, threatening statements 838 A.2d Pa. acts, non-hearsay, a form of family as verbal admissible witness's asserted, establish truth of but matter because evidence offered witness); rather, influencing attempted fact of to demonstrate Puksar, Pa. 740 A.2d v. Commonwealth (statements (the and his brother by witness who overheard defendant victim) non-hearsay offered arguing admissible because not were as asserted, prove but rather of matter to establish motive to killings). truth 126-27, (2010). Ali, 315-316 Commonwealth v. THEY DID NOT OBJECT THE OR RAISE ISSUE ON POST-VERDICT MOTIONS OR DIRECT APPEAL. “Petitioner’s Supplement Response Opposition Commonwealth’s Motion to Reply Dismiss and Support to Atkins Virginia,” his Motion for Relief pursuant filed (capitalization original).43 does not point the location in the record where permission add this supplemental granted claim by court, PCRA and our review the docket sheet and record nothing suggest reveal permis- received such Although sion.44 Judge Jones dealt with of Appellant’s several claims, he not specifically did this allegation, address nor was it by addressed Judge Sarmina when she took up the case. above, As we noted following the transition from one judge other, obviously there was confusion over what issues had been Judge addressed Jones and what remained for issues Judge It Sarmina’s determination. is clear from the briefs arguments presented by the parties, as well as the transcripts proceedings Sarmina, the that Judge before the question of Judge whether Jones granted Appellant per- had to mission amend his PCRA petition to include this issue did not arise once the matter was to Judge transferred Sarmina. It is also clear that the underlying ineffectiveness claim was not one the “remaining” Appellant sought permission issues to argue Judge to following evidentiary Sarmina the hearing penalty issue, the phase mitigating evidence and it is similarly Judge clear Sarmina not did address the issue.45 Court, Appellant’s Like supplement 43. brief current to this response question hearsay, asserted that the statement in was and did any hearsay exceptions. not fit Supplement "Petitioner’s Response Opposition in Commonwealth’s Motion to Dismiss and Reply Support pursuant Virgi- of his for Motion Relief Atkins nia,” filed at 79. 11/10/03 accompanying 44. The docket record in sheet the certified this case titles Opposition the November 2003 document a "Brief in to Motion for Dismissal.” issue, passion Appellant 45. Unlike the heat of did not this claim address Judge during arguments Sarmina the oral that followed the eviden- hearing. tiary Thus, peti- PCRA Judge when Sarmina dismissed tion, way. this claim not any was mentioned not the Commonwealth’s assertion dispute does Appellant permission request he failed to secure to amend his for claim, but, relief to this he com- post-conviction include now to provide the PCRA court’s failure Rule plains proper curing him from certain prevented notice deficiencies Commonwealth, alleged by including the failure secure his PCRA permission supplement petition additional not error alleged claims. did raise this before PCRA court at the time his request post-conviction relief 1925(b) denied, it in nor he include his Rule state- was did Instead, February (nearly ment.46 he waited until denied) to years petition after his PCRA was it two include Commonwealth’s Court. reply brief brief this at 9. Reply brief filed 2/2/15

Because not include the claim in a court- Appellant did approved petition, amendment PCRA it never Further, by decided court. not alert PCRA did passed the PCRA court that the issue had been over until it to remedy by was too late for the court to act the situation claim allowing preserved amendment.47 This has been Reid, 173-74, by for determination this Court. 627 Pa. at 729-30; 484; Baumhammers, A.3d at Pa. at A.3d liott, 622 Pa. at at 430. El 1925(b) underlying The Rule 46. statement raises the ineffectiveness itself, as if it been claim had addressed denied the PCRA court 1925(b) properly and is before this court for review. Pa.R.A.P. state- filed 14. ment claim 1925(b) Inclusion of the issue in Rule statement does not Ali, (A alter this circumstance. See 10 A.3d at 293 in a claim raised 1925(b) waiver); Rule could not undo trial-level statement Steiner 523, Market, 515, 1253, (2009) ("[A] 1925(b) 600 968 1257 Pa. A.2d statement can therefore never be used to raise a claim in first instance.”); McMullen, 435, 452, Commonwealth v. 599 Pa. 961 A.2d 842, (2008) ("A 852 is claim which waived before the trial court is not given by raising appeal life it for the first time an has been after taken.”).

423 Claim 3. Whether Mr. Mason Entitled to a New Trial Peremp-

Because the Commonwealth Exercised its tory Challenges Gender-Discriminatory in a Man- ner and Whether Prior Counsel were Ineffective for Failing Litigate This Issue. to this brief Court asserts that because

the Commonwealth “used its peremptory gender strikes a discriminatory manner to exclude jury,” women from the and no gender-neutral “had for striking reason these pro female spective jurors,” Appellant’s equal protection was violated and he is entitled a new trial. Appellant’s brief at 25 (citing Alabama, J.E.B. v. 1419, 114 U.S. S.Ct. L.Ed.2d (1994)).48 Since trial and direct appeal counsel did not complain allegedly this discriminatory per use strikes, emptory his allegation couches as an ineffec Id.49 claim. tiveness Batson, holding supra,

48. which extended the determined that gender by "[i]ntentional discrimination on the basis of state actors Clause, Equal particularly violates the Protection where ... the dis- invidious, archaic, ratify perpetuate crimination serves to and stereotypes overbroad about the relative abilities of men women.” J.E.B., 130-31, 511 U.S. at 114 S.Ct. 1419. The defendant has the initial demonstrating prima prosecutor burden of case that the discrim- facie against potential jurors gender, inated on the basis of so must to do specifically identify: (1) (2) gender venirepersons jury pool; gender all the cause; (3) venirepersons remaining challenges of all after (4) gender by prosecution; gender of those removed of the served; jurors gender jurors acceptable who to the Commonwealth who were stricken the defense. 35-36, Spotz, 587 Pa. at 896 A.2d at 1211 Commonwealth v. Jones, (1995)). Aaron 542 Pa. raising petitioner through 49. A claim an ineffectiveness Batson/J.E.B. challenge of counsel has an additional burden. argued through guise [Batson/J.E.B.] Defaulted claims the derivative not, cannot, of ineffectiveness are indeed be treated the same as properly preserved objections. See [Batson/J.E.B.] Commonwealth v. Uderra, (2004). A.2d When there is no selection, objection during jury post-conviction "a [Batson/J.E.B] [Batson/J.E.B.], petitioner may rely prima on a case under facie actual, prove purposeful by preponderance but must discrimination requirements of the evidence ... in addition to all other essential underlying overcome the waiver of the In the claim.” 424 not this in his amended PCRA

Appellant allegation raise did Supplement it in his “Petitioner’s and but petition, included to Motion to Opposition the Commonwealth’s Response of Motion for Relief Reply Support pursu and his Dismiss Virginia,” filed on ant to Atkins 2003. As v. November issue, again the Commonwealth Appellant’s previous with for allegation this has been waived failure asserts approved supplement/amendment. in a court Com include it Reid, 173-74, 99 Pa. at monwealth’s brief at 36 627 Elliott, 430). 484; 622 Pa. at 80 A.3d at A.3d at not in the where point does location record granted permission supplement/amend him the PCRA court relief to this request post-conviction his for include claim peremptory in the gender discrimination Commonwealth’s he challenges. prior dispute As with the issue does granted, request petition to amend his PCRA was never his February via his reply and instead asserts brief from prevented curing deficiency by this PCRA he was For provide Rule notice. proper court’s failure issue, regard previous to the find expressed reasons we not been for our review. preserved that this issue has is Entitled to Relief from Claim Whether Ineffec- His Death Sentence Because Counsel was Penalty Failing Investigate, for tive at the Phase Evidence; Mitigating Develop, and Present Wheth- Failing Appellate er Counsel for was Ineffective Ineffectiveness, All Raise Counsel’s in Viola- Trial Sixth, Eighth, and Amend- tion of the Fourteenth ments. January 25, this issue

Appellant raised amended asserted trial counsel’s ineffectiveness petition, PCRA which present mitigating failing investigate, develop evi- history impairments mental health dence showing, petitioner absence of such a cannot meet the Strickland standard. 262, 301-02, Sepulveda, Commonwealth (footnote omitted). abuse at penalty phase trial,

substance correspond- ingly asserted that appellate counsel was for failing ineffective argue trial counsel’s ineffectiveness. peti- Amended PCRA ii-iii, 36, tion filed xi, 108.

A review the records reveals that at the penalty phase hearing, Appellant’s pursued trial counsel circum- mitigating 9711(e)(2)—(4) § stances under (8), Pa.C.S. urging jury to find that Appellant was under the influence of extreme mental or emotional disturbance and his to capacity that appreciate criminality the of his conduct or conform to requirements conduct to the of law was substantially impaired, as as asking well them consider his at age the time the any crime and other evidence mitigation concerning Appel- lant’s character and record and the circumstances of the 31-36, offense. at N.T. 40.50 Trial counsel called in witnesses support mitigating circumstances, and incorporated presented all the evidence on Appellant’s behalf of trial. Id. during guilt phase Lawhorn,

Larry uncle, Appellant’s explained jury to the that Appellant from suffered difficulties young age, from a prompting Appellant’s mother to seek psychi- educational and atric help for him. Id. at 43-45. explained Mr. Lawhorn that although Appellant a respectful person was clearly who was crying help, out failed him.” Id. at 46. systems “the Mason, mother, Thelma Appellant’s Appellant testified that had problems concentrating learning and suffered from dis- abilities that him to repeat grade. caused first Mrs. Mason told jury that Appellant, along with rest of the family, counseling was, underwent determine problem what the but Appellant through continued have trouble elementary into junior high Id. at 55-56. school school. Appellant was eventually enrolled school for with learning children disabil- ities problems, and which behavior caused other children Id. at neighborhood in his him for being tease different. reading portion penalty A phase transcript this of the reveals that Appellant’s statutory did ‘‘[c]ounsel not know the miti- accusation gating prior sentencing phase,” Appel- factors commencement 30, blatantly specious. lant’s brief explained eventual- Mason further 56-67. Mrs. law, and doing drugs getting and trouble ly started ordered treatment. even while court drugs to do continued she told drug problems persisted, Appellant’s Id. 57-58. but when he even jury, he overdosed Id. 58-59. battle addiction. afterward he continued had no self-esteem. Mason confirmed Mrs. at 58-60. jury to the calling lay explain witnesses

In addition depth of his capacity mental and the limited addiction, trial also elicited the drug struggles with testified that he met with testimony Tepper, of Dr. who occasions, lasting meeting with each between Appellant on two hours, time he inter- during two and a half which two and information, per- background Appellant, viewed collected Id. at Dr. intellectual and tests. 72-73. personality formed of Appellant, of his evaluation Tepper explained part that as mother, police he interviewed reviewed Appellant’ crime, records, school and some for the reports Tepper alcohol records. Id. at 73. Dr. treatment drug a IQ that scale Appellant’s full is verbal indicated at of scale of 73. Id. 74. score 71 and nonverbal score scale Dr. that Tepper Appellant and his mother informed Appellant rec- learning from and school problems, suffered had academic and behavioral Appellant ords confirmed that personal- The problems beginning kindergarten. Id. 75. interviews, Dr. suggested Tepper ity testing, along with inadequacy of and Appellant long standing feeling that has self-esteem, difficulty and himself. inferiority, expressing low that such Tepper explained jury prob- Dr. to the Id. at 76. alcohol, drugs and and lems can cause the sufferer turn of long standing report history for the and record may account Tepper Dr. and alcohol issues. Id. at Appellant drug 76-77. his emo- that cannot deal with explained Appellant because himself, may drugs he effectively express or resort tions alcohol, or he does have gets upset angry and when he and fashion. anger in a controlled to deal with other resources of explained Dr. further because Tepper Id. at 77. Appellant’s limited intellectual abilities and Ms low self-es- teem, Appellant’s ability deal with problems and interact already with other is people reduced, him causing to react impulsively more angrily. Id. at 79. When upset, agitated or intoxicated, Dr. Tepper told the jury, Appel- lant is even less able to maintain control. Id. at 80. Dr. Tepper was of Appellant’s aware long standing problems with drugs alcohol, as Appellant reported to Tepper Dr. that he began marijuana experimenting with anti-anxiety pills as a teenager, and later began using cocaine and POP.

In order to the jury convince that it aggravating should find circumstances, the Commonwealth asserted that Appellant committed killing of perpetration felony, that he a significant had of history felony involving convictions the use violence, threat of and that he knowingly grave created a of risk death to person another addition to the victim when committing (9). § (d)(6)—(7), the offense. 42 Pa.C.S. The incorporated pertinent guilt Commonwealth phase testimony, including the testimony the victim’s mother to Appel- as entry lant’s into her home and presence the victim’s son, and the testimony the victim’s son as to where he was observed, and what he incorporated and also the stipulation as to Appellant’s felony convictions. N.T. at 41. At the 2/16/96 close of trial, penalty phase jury found two aggrava- (that ting circumstances killed the victim while committing a felony, significant he had history felony violence), involving convictions the use or threat of but no mitigating circumstances. petition specifically amended PCRA fault

ed trial counsel for failing investigate evidence of Appel lant’s childhood dysfunction and abuse and his mental health deficiencies, and for failing prepare penalty phase testify. witnesses to petition Amended PCRA filed 37, 41, 42. Although not Judge originally grant Jones did an evidentiary issue, 1/19/05, in this hearing See filed he Order later hearing encompass indicated that the trial would whether failing rendered ineffective assistance for to investi gate, develop, present and evidence of Appellant’s mental of N.T. history substance abuse.

health treatments above, 3; Judge As 10. noted N.T. 11/27/07 11/16/07 he was able to to the Federal bench before Jones was moved however, hearing, Judge Sarmina evidentiary conduct hearing eventually evidentiary place. took his When 2011, Judge on indicated Appellant October commenced by Judge subject its matter had limited been Sarmina of whether trial counsel was ineffective question “to the Jones testimony adequate mental health failing present in ... mitigators to the E2 and E3 background pertains [that as it the influence extreme mental was under Appellant capacity appreciate and that his disturbance emotional or to conform his to the his conduct conduct criminality substantially impaired].” N.T. requirements law at 6-7.51 10/24/11 hearing, Appellant presented expert

During evidentiary Sadoff, in expert L. an forensic testimony from Robert Dr. Cooke, expert an Dr. forensic and neu- Gerald psychiatry, Restak, expert neurology; an Dr. Richard ropsychology, Attorney trial Thomas Tepper, Appellant’s expert. and Dr. testified, Attorney also Moore, trial counsel as did Stein, appeal Appellant direct counsel. Gerald mother, uncle, testimony Larry from his his lay presented Lawhorn, brother, Brian and his Mason. evidentiary hearing, parties submitted

Following the briefs, oral on argument February occurred post-hearing represented Judge Although Appellant’s Sarmina PCRA counsel evidentiary hearing regard, Judge Jones this N.T. limited 6-7, Appellant now asserts to this Court that we should 10/24/11 evidence, mitigating remand the matter for consideration of all uncon- limitation, Judge relying by such because Sarmina erred in strained representation. Appellant's Reply brief filed at 3. counsel’s Judge February Sarmina in his did this issue before raise law, supple- post-hearing in his June memorandum law, during post-hearing memorandum of the June mental argument, August or in his 2012 motion reconsideration. oral 1925(b) allegation Rule Neither did include this in his state- complained appeal, ment matters of on thus it has not been ad- Judge Appellant did not raise the issue in Sarmina. Further dressed reply original he his brief on brief but instead waited until filed February to relief on this 2015 to seek remand. He not entitled 302(a); 1925(b). allegation. Pa.R.A.P. Pa.R.A.P. 13, 2012, at the conclusion of which Judge Sarmina determined that Appellant had not proven that trial counsel was ineffec- tive failing adequately present mitigating evidence. supplemental then filed a post-hearing memoran- law, of finally, dum a motion for reconsideration of Judge Sarmina’s February of Judge denial relief. Sarmina denied reconsideration on January 2013. Appellant appeal- ed, 1925(b) and his Appellant’s Rule statement of matters complained of on appeal alerted the court that Appellant intended assert that trial counsel rendered ineffective assis- tance at the of penalty phase trial for failing investigate, develop present mitigating evidence “dys- functional upbringing and mental health impairments and history of abuse, substance including evidence of intellectual disability, brain damage, dysfunction, childhood Dysthymia, attention-deficit/hyperactive disorder, and the psychiatric/psy- chological abuse,” impact of drug that appellate counsel was ineffective for failing pursue these claims. Pa.R.A.P. 1925(b) statement, issue

In addressing allegations, these Judge Sarmina acknowl- edged Appellant’s insistence that trial counsel’s failure investigate Appellant’s background from prevented counsel presenting to jury the full significance extent and history drug mitigating abuse and his mental 1925(a) impairments. Pa.R.A.P. at 55 Opinion (citing Appel- Brief, 3). lant’s Post-Hearing addressing filed In whether Appellant has proven trial counsel in this ineffective regard, Judge Sarmina imposed upon considered the burden counsel with respect presentation mitigation evi- dence, examined the evidence actually that trial pre- during sented the evidentiary hearing, assessed whether counsel’s course of action was unreasonable. regard

With conduct, Judge counsel’s course Sarmina Supreme cited United States Court’s indication that “[cjounsel for a capital duty defendant a has ‘conduct ” thorough investigation of the background.’ defendant’s Id. at 56 (citing 362, 396, Taylor, Williams U.S. 120 S.Ct. (2000)). 1495, 146 Turning pronounce- L.Ed.2d to the following Court, Judge quoted Sarmina of this ments from Carson: discussion is not investigation of counsel’s to our evaluation key

The mitiga- presented have counsel should focused on whether evidence, questions rather whether specific but tion case not to pres- investigation supporting counsel’s decision case or evidence was reasonable. particular mitigation ent investigation, of counsel’s evaluating In the reasonableness may that decisions must remember counsel’s this Court that his client provides on the information heavily depend him. Carson, 1925(a) 590 Pa. at (citing at 56 opinion

Rule (citations omitted)). A.2d at 266 here, performance to trial counsel’s regard

With has not shown that Appellant concluded that Judge Sarmina unreasonable, Judge thus action trial counsel’s course was not that trial counsel did render ineffective opines Sarmina to relief on this issue. is not entitled Appellant and assistance conclusion, that Judge initially noted To reach this Sarmina purposes guilt Dr. both the Tepper trial counsel hired testi acknowledges Tepper’s and she Dr. penalty phases, and of his hearing part at that as evaluation mony evidentiary background informa Appellant gathered he first with met gathered met and back January from him then tion in February from mother information ground 95). Judge ac (citing N.T. at Sarmina 1995. Id. 10/25/11 Appel knowledges following Tepper’s that Dr. interview mother, Tepper requested provide Dr. trial lant’s records, records, mental health additional school him with 100). Dr. at drug (citing treatment records. Id. N.T. 10/25/11 for a second time and Appellant then interviewed Tepper (citing 1995. Id. testing March, psychological administered 95). Dr. although notes that Judge N.T. at Sarmina 10/25/11 all he based requested, not receive the records Tepper did receive, performed, he and the testing the records he did mother, Dr. by Appellant Tepper information provided testify penalty phase hearing at the was able disabled, intellectually long-stand- that he had borderline ing feelings inferiority and problems addiction, with drug and that the cumulative effect of compromised these issues Appellant’s ability to exercise control over his own behavior. 74-80). Id. (citing N.T. 2/16/1996 Judge Sarmina notes Appellant’s current allegation that had trial counsel uncovered the requested records Dr. Tepper, Dr. Tepper would have neurological “recommended testing, testing which ultimately revealed Mr. organic Mason’s brain damage.” (citing Brief, Post-Hearing filed 13). She further acknowledges Dr. Tepper’s state- 2/6/2012 during “(1) ment the evidentiary hearing that had he received records relevant to [Appellant’s] (2) intellectual functioning, prison records from which indicated [Appellant] trauma, suffered head Eagleville Hospital records from regarding abuse[,]” [Appellant’s] drug he would have referred to a neuropsychologist for a neurop- sychological evaluation to look into potential or possible brain dysfunction. 125-45). Id. at 56-57 N.T.

Judge explains, however, Sarmina that she did credit Dr. testimony that Tepper’s receipt of such records would persuaded have him to Appellant refer to neuropsychologist. a Id. at 57. Specifically, Judge Sarmina reiterates that based on Dr. Tepper’s Appellant, evaluation of and the information he received from the provided records interviews conducted, Tepper Dr. did not it necessary deem to order neuropsychological testing and opinion his that Appel- offered lant did not any signs exhibit or symptoms indicative of an major underlying or mental illness disorder. Id. at 147); N.T. at see also from Letter Dr. Tepper trial 10/25/11 counsel dated at Judge opines Sarmina that none of 3/28/95 presented additional records evidentiary hearing information, represented new i.e. information unknown to Dr. Tepper that would have altered the already conclusion 1925(a) Rule Opinion reached. 57. Records which merely confirmed Dr. Tepper already knew, not, Judge what could opinion, provide persuasive Sarmina’s reason for Dr. Tepper to change opinion that Appellant any did not exhibit signs or symptoms of an underlying major indicative mental illness not have had the “[Although Tepper may Dr. Id. disorder. already he had reached possession, in his

physical records by this he would have been directed to which conclusions data.” Id. he Tepper’s to Dr. assertion that regard

Specifically possible neuropsychological alerted to a have would been intellec- if records relevant he had had problem con- intelligence testing, Judge Sarmina functioning tual school public in the that the data included additional cluded Dr. to a that he only Tepper have led conclusion would records severely had been [Appellant] “that already had reached: Id. at 58. intellectually young since he child.” was limited found that Judge specifically Sarmina determining, In so that from the Dr. indication he learned despite Tepper’s Appellant extremely school that had public records additional years that test scores over a number low standardized attention concentration difficulties evidenced constant Attention Deficit Disorder might now be considered which based, already Dr. was aware Tepper brain have been and/or that fell testing Appellant original from his interviews disability, and that of borderline intellectual range within grade in school he first repeated so poorly did learning in a school those with placed and was disabilities. 156-158).52 148-149, 181-132, Be- (citing N.T. Id. func- pertaining the records intellectual cause provide Tepper provid- trial to Dr. tion counsel failed which to that which he was only already information ed cumulative aware, sup- such information does not provide the failure to trial counsel ineffective assistance finding rendered port regard. in this that trial counsel Judge persuaded Sarmina

Neither failing prison assistance for obtain ineffective rendered indicating suffered some head kind records part that as Judge points Sarmina out trauma. Id. at 59. additionally during evidentiary Judge Sarmina notes that hear- specify Appel- Tepper which records indicative of ing, Dr. could trial, intelligence possession his at time of were lant’s low (citing received Id. at N.T. which records thereafter. were 10/25/11 150). at Dr. Tepper’s 1995 evaluation he had asked Appellant whether he had any injuries, suffered head Appellant but did not report any. Id. (citing 111, 177). N.T. at Judge 10/25/11 posits Sarmina that Appellant’s failure to include the 1992 history incidents he relayed to Dr. Tepper suggests that Appellant did not consider significant. them be Dr. Id. opines Sarmina further it that was reasonable Dr. Tepper and trial counsel rely on Appellant’s representations of his history, thus Dr. Tepper did not ask trial search for records pertaining to unreported injuries, head and trial coun- cannot sel for failing be faulted to initiate such a search on his own. Id. regard

With to trial counsel’s to provide failure Tepper Dr. with records pertaining drug Appellant treatment received at Eagleville Hospital and Dr. Tepper’s subsequent claim that had he reviewed such reports he would have recommended neuropsychological testing, Judge ac- Sarmina knowledges Dr. Tepper’s indication that the records reflected suffered from year at least a ten history of use, extensive drug (citing N.T. 141-142), at but 10/25/11 Judge points Sarmina further out that this information already known to Dr. Tepper as result the information provided by Appellant and his mother began that using cocaine and drugs other as a teenager, at (citing id. 165), N.T. and that Appellant POP, abused 10/25/11 used pills, nerve and got high every day from December 1993 through 165-166). March id. N.T. As such, Judge Sarmina finds incredible the notion Dr. Tepper changed opinion would have if he had reviewed this additional but information regarding Appellant’s cumulative history drug abuse. Id.

Judge Sarmina thus concludes that had Dr. been Tepper privy the records evidentiary introduced hearing, Dr. Tepper would have been confronted with nearly the same information already that he had. Id. None the information elicited during evidentiary hearing revealed a previously aspect unknown of Appellant’s merely life—it confirmed Dr. Tepper’s prior findings substantially accurate com- intellectually disabled awas borderline Appellant

píete—that his life and academically throughout offender, struggled who teenage years. Id. dating back his drugs serious abused on Dr. accurate Tepper’s that based observes Judge Sarmina addictions, Tepper Dr. condition and assessment no to refer that was need concluded there reasonably had Judge Sarmina testing. Id. for neuropsychological Appellant was based analysis Appellant Tepper’s that as Dr. concludes for trial information, entirely it was reasonable on sufficient that neuropsy- determination rely Tepper’s on Dr. counsel to (citing Bracey, testing unnecessary. Id. at chological was (“[C]ounsel disregard required was not at 942-43 A.2d at experts, continue to consult findings expert of his the resources, until he found judicial one limited expense damaged brain testify organically willing Appellant prove failed to finding Appellant In addition to analysis, Judge of the prong the second Strickland/Pierce arguendo, assuming, that even further determines Sarmina for a not to neu- send that trial counsels’ decision unreasonable, entirely Appel evaluation was ropsychological prejudiced that he was still lant failed demonstrate organic from brain that he suffered testimony absence directive that to Acknowledging 61 n. Id. damage. repre of a claim of ineffective context prejudice assess investigation, the mitigation phase as to a penalty sentation “ mitigation totality of the ‘consider the available court must trial, evidence ad and the that adduced evidence—both it reweigh against the proceeding—and in the duced habeas ” here, Judge Sarmina notes aggravation,’ evidence available to mitigation evidence strongest, persuasive most was, fact, phase presented during penalty of Ap combination testimony that the through Tepper’s Dr. significantly impact use of drugs intelligence low pellant’s impulses. Sears to control ability ed his 3266-67, 955-56, 130 S.Ct. 661 U.S. Upton, 78-79). (2010); Judge Sarmi- N.T. L.Ed.2d na suggests that fact that the jury did not find Appellant’s lack of impulse control, borne out of drug use and low intelli- gence, to rise to the level of a mitigating circumstance indi- other, cates that less convincing evidence would not have persuaded jurors to find a mitigating circumstance, and she reiterates that she had Barry credited Dr. Gordon’s opinion that: Appellant’s ability to appreciate the criminali- ty of his conduct or to conform his conduct to require- ments of law substantially impaired by his neuropsy- chological (2) condition or abuse, substance that Appellant did not suffer from a mental or emotional disturbance so extreme that he could not control his behavior. Id. (citing 38-39). N.T. at Judge Sarmina observes 10/27/2011 that Dr. Gordon based his evaluation on the of totality actions at the of murder, time and that she specifically found Dr. Gordon’s reasoning to be sound. Id. N.T. 45-46).

Judge Sarmina thus concludes that the original evidence of mitigation presented during the penalty phase, and the addi- tional evidence of mitigation presented during post-convic- tion evidentiary hearing, would not have persuaded a jury circumstance, find mitigating petitioner preju- thus was not diced the failure to present such evidence. Id.

Our relevant standard of is review well-settled: In evaluating an alleging ineffectiveness claim counsel’s failure investigate present mitigation evidence case, capital factors, “we consider including number investigation, reasonableness mitigation counsel’s evi- dence was actually presented, and the additional or different mitigation evidence that have could been present- Lesko, ed.” 128, 187, [Commonwealth v. 609 Pa. 15 A.3d 345, ]; Collins, 380 45, Commonwealth v. 585 Pa. 888 (2005). A.2d 580 is, None the aforementioned factors by itself, dispositive, if because even counsel’s investigation unreasonable, deemed the defendant is not entitled to prejudice demonstrates the defendant unless

relief conduct. Id. from counsel’s resulted (2014). Furthermore: 720, 101 at 764 A.3d Tharp, 627 Pa. inves complete a less than following choices made Strategic that reason to the extent precisely are tigation reasonable of the the limitation supports judgment professional able [596], 886 A.2d [at] 584 Pa. at []Bridges, investigation. Fears, Pa. v. (citing Commonwealth 1132[] perform (2003)). of counsel’s Our evaluation A.2d deferential, and the reasonableness is, however, highly ance distorting upon cannot based counsel’s decisions Furthermore, “reasonableness hindsight. effects information part, upon in critical depends, this context A.2d at 1132 Bridges, 886 the defendant.” supplied by Peterkin, Pa. v. (citing, Commonwealth (1986)). 373, 383 997, 1025- 708, 933 A.2d Rega,

Commonwealth (2007). Finally: “to determination, PCRA court is devel- making In this case offered mitigation of the comparison aop specific post-conviction on evidence offered trial the credited 458, Pa. Beasley, 600 967 v. Commonwealth review....” Gibson, 402, 597 Pa. (2009); v. 376, 391 Commonwealth A.2d (“Gibson I”) (same). (2008) In review- 1110, 1123 951 A.2d determination, reweigh “we evi- court’s ing the PORA of miti- against totality available aggravation dence presented evidence evidence, includes the gating which have been hearing the evidence would penalty investigation.” proper counsel conducted had presented 332], Pa. 19 A.3d [512] II [610 v. Gibson ] Gibson [Com. Lesko, (2011) (emphasiz- ]; 15 A.3d at 384-85 526 see also [ requires consid- in this context ing prejudice that Strickland aggravating of case, including gravity eration of context mitigating circumstances strength circumstances by jury). found 652, 692, Watkins, Pa. 108 A.3d 713

Commonwealth v. curiam). (2014) (per

The reasonableness of investigation counsel’s into potentially mitigating evidence may depend upon the informa defendant, tion provided by “and counsel cannot be deemed ineffective for not introducing uniquely information within the knowledge of the defendant and his family which is Williams, to counsel.” supplied See Commonwealth v. 577 Pa. 473, 485, (2004) 846 A.2d (citing Commonwealth v. Bond, 588, 609-610, (2002)). 45-46 Nor may a determination of ineffective assistance of counsel be founded upon counsel’s failure to present mitigating evidence that would have presented been cumulative of evidence at the penalty Mitchell, phase. Commonwealth Pa.

A.3d (refuting merit to argument that even more details defendant’s alcoholism would have persuaded defense). jury accept his capacity diminished In addition to denying relief on the grounds stated footnote supra, comprehensive our review of both governing jurisprudence record and to adopt leads us probing, opinion well-reasoned of Judge Sarmina discerning no merit to any Appellant’s ineffectiveness claims. Accord- ingly, Appellant’s claim fails. Mr.

Claim Whether Mason Entitled to a New Sen- tencing Hearing Imper- Because the Trial Court missibly Questioning Psy- Curtailed the of Defense chologist Tepper Allan and Whether Counsel were Failing Properly Litigate Ineffective for this Issue.

During penalty trial, phase Tepper Dr. testified that Appellant from personality suffered and intellectual defi cits, and was explain jury asked the effect those deficits, use, Appellant’s long drug combined with term would ability have to Appellant’s control his behavior. N.T. Following at 79. Tepper’s response, Dr. which indicat 2/16/96 Appellant’s ed that to control ability his behavior was limited by factors, these inquired: possible trial counsel “Is it that the in might defendant form specific situation be able to the conduct?” Id. his being kill to control intent to while able sus- objected, Judge Jones at 80. The Commonwealth this Id. objection. Appellant now asserts before tained the objec- it to sustain the Commonwealth’s that was error Court following objection, further that the question, tion to this to court that argued have his trial counsel should it would properly jury be before the because answer would statutory in permissible support have evidence been (Section substantially mitigating impaired capacity factor 9711(e)(3)).53 claims, appellate Additionally, Appellant for to trial failing ineffective assistance raise counsel rendered Id. at 57. error. counsel’s raised

As with the second and third issues in Court, allegation not raise this Appellant to this did brief it his but included in his petition, amended PCRA instead Response Opposition Supplement “Petitioner’s Reply to Dismiss and Support Commonwealth’s Motion Virginia,” Atkins v. his Motion for Relief filed pursuant issues, previous Also with those November 2003. as that this has allegation Commonwealth asserts been waived in a court approved supplement/amend- for failure to include it Reid, at (citing ment. Commonwealth’s brief 484; Elliott, 430). 173-74, 622 Pa. at A.3d at A.3d point does not the location the record where him granted permission supplement/amend the PCRA court claim, relief to include this request post-conviction prior dispute he does not he did not as with issues his PCRA permission petition, obtain amend but instead 2, 2015 February reply via his that he asserts brief curing deficiency by from this the PCRA court’s prevented Rule 909 notice. For reasons provide proper failure issues, to the we that this expressed regard previous find issue has not for our review. preserved been question, Tepper that if to answer the Dr. asserts allowed killing, [Appellant] responded that “at the time of the would would have requirements his conduct of the have "been unable conform 80). law.” brief at 56 NT

439 6. the Claim Whether Trial Court’s Failure to Instruct Jury Imprisonment”

the that “Life Means Life Possibility Without of Parole Violated Rights Sixth, Eighth Under the and Fourteenth Amendments the United States Constitution and Failing Trial Whether Counsel was Ineffective for Request Appellate the Instruction Counsel Failing was Ineffective for Raise the Issue and Prior Counsel’s Ineffectiveness.

Appellant presented this issue in his amended peti- PCRA tion, which argued pertinent part that such a penalty phase Carolina, under Simmons v. South required instruction was 154, 2187, (1994), 512 U.S. 114 129 S.Ct. L.Ed.2d 133 because (1) dangerousness future had been at put issue the during introduction the of guilt phase trial evidence Appellant’s prior assault on the victim and his criminal histo- (2) ry, prosecutor’s during guilt phase statement his closing argument that the evidence that Appellant showed had violence,” “occasions of in the prosecu- statement penalty tor’s phase closing argument Appellant that had a “history of at petition violence.” Amended PCRA filed 1/25/02 59, 92-99; 97, 59-66, N.T. at N.T. 2/9/96 2/14/96 112).54 110, N.T. claims Appellant reiterated these 2/16/96 in his “Motion for Supplemental Reconsideration and Post- Simmons, plurality In Supreme of the United States Court held issue, dangerousness that "where the defendant’s future is at and state prohibits parole, process requires law the defendant's release on due sentencing jury parole be informed that the defendant is Simmons, 156, ineligible.” 114 S.Ct. at 2190. U.S. proper scope This considered the Court of Simmons in Common 451, denied, (1996), Speight, wealth v. 544 Pa. 677 A.2d 317 cert. S.Ct, (1997). There, U.S. 136 L.Ed.2d 852 argued failing defendant that his trial counsel had been ineffective for request jury to spend instruction that a life sentence means that he must prison possibility life in parole natural without the after jury had asked trial court for the definition of a life sentence. Simmons, jury We under must informed held that that life means possibility parole only prosecutor injects life without the when the dangerousness concerns of the defendant’s future into the case. In Speight, prosecutor danger had not made the defendant’s future issue; therefore, required. ousness an no Simmons was instruction (1998). May,

Commonwealth v. Law,” additionally argued Memorandum of which Hearing Tepper, prosecution on cross-examination Dr. “someone, testimony who when elicited violence,” if and asked might respond can and angry, with very “respond “might become violent” Supplemental violence.” “Motion Reconsideration at 10-11. Memorandum Law” filed Post-Hearing Judge on this issue conducted argument was before Oral 3, January Judge 2013. Sarmina denied Sarmina in on this Court’s determination relief on the issue based Fisher, (1999). 558, Commonwealth v. 559 Pa. A.2d 1234 28.55 N.T. at 1/3/13 1925(a) the three

Judge opinion Rule addresses Sarmina’s Appellant’s dangerousness” “future at alleged put instances 1925(a) 97; issue, N.T. at opinion (citing Rule at 36 2/14/96 110, 112), explains Appel at and that at the time trial, then-controlling required law that trial courts lant’s a Simmons instruction only the defendant’s provide when Id.56 implicated.” was dangerousness” “expressly “future refusing appellant 55. The in that the trial court erred in Fisher asserted argue, pursuant permit counsel to "that defense Simmons imprisonment’ Pennsylvania of 'life in means that sentence possibility prison spend rest of his life in without the would parole” (1) prosecutor’s closing argument quoted from a after the psychological report prison "[s]adistic evaluation that indicated that rigid impulses suspected personality hostile are features and a action,” potential explosive queried "I if after wonder for good guy prison longer remain a when no Fisher, tomorrow he’ll it matters? 577-578, any good It do him tomorrow.” Pa. at won’t after appellant argued "the most 741 A.2d at 1243-1244. The inference poses likely "posed, to be from these statements was he drawn” pose explosive dangerous persons continue to an and will threat future,” in the but this Court concluded that with whom he interacts impermissibly "did not raise issue of these two instances Rather, dangerousness. prosecutor’s comments were fair future good presented mitigation by response to the evidence character detailing Appellant,” reiterated that "instructions the character of a dangerousness required ex life are not where future sentence Id., pressly implicated.” 559 Pa. at 741 A.2d at 1244. Judge acknowledges Supreme Sarmina that the U.S. Court since has degree required trigger of evidence instruc- revisited Simmons Carolina, Kelly 534 U.S. tion v. South S.Ct. evidence, (2002), introducing only found that which L.Ed.2d 670 which Judge opines Sarmina references a defendant’s violent are past insufficient implicate expressly “future dangerousness,” prosecution and unless the explicitly connect prior ed a defendant’s conduct with prospect of future harm, a Simmons instruction was not Id. at implicated. Carson, 273; 590 Pa. at 913 A.2d at Spotz, 1243). Here, concludes, 896 A.2d at she the references to Appellant’s past violent were to expressly impli insufficient dangerousness,” cate “future thus trial counsel did not render ineffective assistance request a Simmons instruc failing Id. tion. 37-38. trial ineffective, Since counsel was not Appellant cannot appellate show that counsel was ineffective. 38.57

Appellant’s argument to this Court reiterates claims raised in his petition PCRA Amended and the claim Dr. regarding Tepper’s cross-examination first in his asserted “Motion for and Supplemental Reconsideration Post-Hearing Memorandum of Law.” brief at 58-62.58

The trial transcript shows that the testimony of contested Dr. Tepper part larger of a prosecution’s line cross- sought examination to impeach which Dr. Tepper’s medical that impression Appellant’s difficulty expressing with his emo- tions played a role in his past difficulties controlling with tendency” prove dangerousness bore "a in the future raised the specter 1925(a) dangerousness.” of a defendant’s "future opinion Rule 253-254, 726). Kelly, n. 23 534 U.S. at 122 S.Ct. She clarified, however, further notes that Court expanded this that dangerousness definition of “future Kelly apply articulated in did not retroactively, attorneys request and who had failed to a Simmons Kelly instruction based the new standard announced in could not be having (citing Spotz, deemed ineffective for not done so. Id. 587 Pa. at 92-93, 1245-1246). Thus, concluded, Judge 896 A.2d at Sarmina stewardship judged existing must be "[c]ounsel’s under the law at the failing time of trial and counsel cannot be deemed ineffective for

predict developments changes future or in the law.” 1925(a) Judge opinion Appellant's 57. Sarmina’s Rule does not address regarding assertion Tepper the cross-examination of that was Dr. raised for the first time in his for Supplemental “Motion Reconsideration and Post-Hearing Memorandum Law.” above, argues 58. As discussed to the extent an issue that that was petition, not in his PCRA included and which he was not amend, granted permission to issue has been waived. prosecutor impulses. Specifically, violent thoughts opinion report containing Dr. the doctor’s from Tepper’s read attempt of an part abuse that substance emotions, he never- thoughts but unpleasant control his theless, attempts, “possesses somewhat brittle despite these under more psychological ineffectual defenses and thus im- underlying thoughts his anxiety provoking situations through into a less modulat- may come consciousness pulses following The testimo- or controlled N.T. ed fashion.” ny was then elicited: if makes him say Is that to that someone

PROSECUTION: very become violent? angry might he I yes. trying mean it’s also Simplistically, WITNESS: you of the—the last sentence that that he because say might with, underlying of some of the that did not finish because may angry either more feelings certainly he become if pushed. violent he’s simple person, I am somewhat of a so

PROSECUTION: saying going you, way I’m to ask another angry, respond he can with violence? when he becomes Yes. WITNESS: Now, he had you

PROSECUTION: then indicated trouble your testimony, time in point himself one expressing your now, that he had trouble going report I’m expressing himself. skills I the lower verbal stated because

WITNESS: talking working through prob- about difficulty he has more feelings. lems or writing Do verbal skills also include

PROSECUTION: skills, out? writing feelings one’s Dr. Tepper then asked prosecution N.T. at 86-87. The to Iona several letters had sent Jeffries and read difficulty opinion they offer as whether reflected that feelings. opined The doctor the expressing personal feelings and were articulate thoughts letters contained “get they a sense of what are enough allow reader 87-88, at 94-95. trying convey.” N.T.

Neither Dr. nor Tepper’s report the line of questioning upon suggested based it that Appellant posed danger. future Though present written tense and related to the jury verbatim, Dr. Tepper’s report represented an assessment based on Appellant’s history case no made reference to Moreover, future behavior. context which the report was the past well, discussed involved as for prosecution’s focus Appellant’s was state mind around the time he killed Jeffries, Iona as is by prosecution’s evidenced attempt through show Appellant’s letters written to Jeffries that he possessed ability to control his express emotions and at feelings the critical time. Appellant’s Where future danger- implicated ousness was not cross-examination Dr. Tepper, the PCRA correctly rejected court Appellant’s lay- claim of prior ered ineffective assistance of failing counsel for to request a Simmons instruction. See Spotz, Pa. at 299-300 (rejecting failing ineffectiveness claim to request a instruction to Simmons which client not was entitled). also prosecution contends the in its implied penal-

ty phase summation Appellant possessed that the propensity to commit violent acts and would continue to such have propensity in argument the future. This on refer- based to Appellant’s “history violence,” ences N.T. 2/16/96 argument person [Appellant] “this violence acts with and ... killing this further manifestation of how he responds to acts and stimuli and his and when he environment gets angry something.” he when wants N.T.

Both challenged however, excerpts, implicate past conduct violence”) (the generally (“history and specifically killing awas manifestation of how acts with violence and responds gets how he angry), stimuli when he and did refer to dangerousness. above, future As noted pre-dated trial in Kelly, prospectively our decision which expanded the scope commentary implicates future dangerousness. Our law danger- decisional relative to future of ousness claims at the time trial stated instructions as to what term “life sentence” means “are not expressly is dangerousness future required where 331, See, King, 554 Pa. Commonwealth v. e.g.,

implicated.” (1998). 763, attorney As cannot 363, “[a]n 721 A.2d change devel- failing anticipate for ineffective deemed 274, Carson, 593, at law,” 590 Pa. at in the opment claim fails. present Appellant’s ineffectiveness Virginia, Appellant Under Atkins 7. Claim Whether Penalty; Ineligible for Death Whether the Permitting Appellant, Over Erred in PCRA Court Objection, this Claim. Counsel’s to “Waive” petition PCRA January amended While Jones, Supreme the United States Judge pending was before 8, 2002, on 2002.59 On October Court Atkins June decided re-sentencing to life immediate Appellant filed a motion Atkins, Tepper’s on Dr. based imprisonment pursuant neither con- trial, Appellant which asserts was testimony at Commonwealth, nor which established refuted tested IQ test is 70 and 79 IQ that an between Wechsler disabled, intellectually as classified borderline filed range. him that Motion placing overall score was Simultaneously, Appellant sought permission “sup- 10/8/02. January 25, 2002 PCRA amended plement and amend” post- he entitled to a claim that was petition include he had adduced relief to Atkins because pursuant conviction mental regarding capacity” his limited “considerable evidence trial, including Tepper’s Dr. during penalty phase [intellectually dis- testimony was “borderline 2.60Judge PCRA II. n. Amended Supplemental abled].” prohibi- Eighth Broadly speaking, held that the Amendment’s 59. Atkins punishment unusual bars the execution intellectual- on cruel and tion ly Atkins, 536 U.S. at 122 S.Ct. 2252. disabled offenders. supplemental petition the PCRA Appellant's amended asserted that jurisdiction Section to hear claim under court had Atkins 9545(b)(l)(iii) right (pertaining to the assertion a constitutional year period recognized expiration one time PCRA’s after apply retroactively), Supplemental filing Amended Petition and held to III, 21, suggesting in order for the court believed that jurisdiction supplemental petition, peti over the amended have requirements. exception PCRA’stime If tion to fall under an to the had granted Jones Appellant’s request to supplement his PCRA petition add this claim. N.T. at 2. 6, 2003,

On March the Commonwealth a response filed Appellant’s motion and request supplement and amended his PCRA petition, asserting that the issue legisla- raised was tive in nature and legislative action was currently pending; that Appellant’s assertion that the Commonwealth must affir- matively prove lack of frivolous; intellectual disability is that Appellant’s claim of intellectual disability failed because his own expert testified that he is not intellectually disabled. Appellant replied, and the Commonwealth then filed a supple- mental 19, motion to on August 2004, dismiss to which Appel- lant responded 23, on December January 19, 2005,

On the PCRA court scheduled a February 17, 2005 evidentiary hearing issues, on in several cluding whether Atkins applied to the instant matter. Shortly thereafter, however, the court indicated that February the hearing would encompass only argument oral on applica the Grant bility present the matter. PCRA court orders 1/19/05, 26, 2005, filed On October the Common 1/25/05. wealth a supplemental filed to Appellant’s brief opposition Atkins, claim for relief under Atkins issue was but before case, 9545(b)(1)(iii) this were the Section would operate to confer however, jurisdiction, supplemental petition because the amended decided, clearly days filed more 60 than after Atkins was and would 9545(b)(2) (“Any thus run afoul of petition invoking excep Section an provided paragraph tion days shall be date filed within 60 of the presented.”) Perhaps the claim could have been because decision to withdraw the Atkins claim removed the issue from the focus, Judge court’s neither Jones nor the Commonwealth commented 9545(b)(1)(iii) necessity on citation to Section or the meeting exception Regardless, an to the time bar. has this Court previously pending, timely indicated that an amendment to a filed petition, independently subject PCRA is not to the PCRA’stime limita 587, 604-605, Flanagan, tions. v. Commonwealth 489, (2004). Flanagan opined 499 also that "PCRA courts invested are permit pending, with discretion to timely-filed the amendment of a post-conviction petition, and this Court has not the Common endorsed position substantively wealth's that the content of amendments must Rather, align pleading. prevailing initial rule remains simply freely that amendment is to be allowed to achieve substantial 605, justice.” Flanagan, 578 Pa. at 854 A.2d at 499-500. court, Appellant sup- filed another by further addressed 27, on post-conviction January for relief plement request notes, 2006, of the Lecture” by “Sagel the disclosure spurred the Commonwealth had violated Batson asserting (1986). 79, 1712, 90 L.Ed.2d 69 S.Ct. Kentucky, U.S. that it on March the PCRA court indicated Finally, “in date on Atkins issue view of’ hearing would set (2005).61 Miller, Pa. A.2d 624 Commonwealth v. entry Docket dated 3/1/06. 29, 2006, however, September pro authored

On requesting disregard the court to Judge se letter Jones In claim counsel. Pro letter filed by Atkins filed se 9/29/06. testing doing so, the letter referenced the that had been 61. Atkins responsibility setting proce- left to the individual states the Atkins, disability. claim of intellectual dures to assess a defendant’s 122 S.Ct. at 2250. U.S. Miller, prevailing In this Court established standard Atkins show, by Pennsylvania: preponderance a defendant must claims evidence, ‘‘[intellectually of the that he is under the defini- disabled]” (APA) Psychiatric provided American Association or the tions (AAMR), American Association of Mental Retardation which was Developmental renamed the American Association Intellectual (AAIDD). Miller, These Difficulties 585 Pa. at 888 A.2d at 631. clinical definitions are as follows: "disability mental a characterized The AAMRdefines retardation as functioning by significant and in limitations both intellectual social, adaptive expressed conceptual, prac- behavior as in the and Definition, adaptive tical tions, Mental Classifica- Retardation[: skills.” (10th 2002) (Mental Systems Supports 1 ed. Retarda- and of tion)] Psychiatric defines mental at 1. The American Association (an "significantly subaverage functioning retardation intellectual as I.Q. below) age years approximately or before onset functioning.” impairments adaptive and concurrent deficits or (4th [Diagnostic and Statistical Manual of Mental Disorders ed. Thus, 1992) (DSM-IV),] at 37. ... both definitions of mental 1) incorporate concepts: intellectual func- retardation three limited limitations; 2) 3) tioning; significant age adaptive of onset. and 153, (footnote omitted). sum, In Id. at 888 A.2d at 629-30 a defen- may "mental retardation” under either the AAMR dant establish (AAIDD) by showing by preponderance definition APA/DSM-IV functioning, significant that he has intellectual the evidence limited limitations, subaverage adaptive the onset intellectual of his Williams, functioning began years before he turned 18 old. 224, 982. A.3d 593-94, Hackett, 11, 26-27

Commonwealth v. Pa. (2014). performed by Dr. Gerald Cooke that indicating Appellant had an IQ expressed understanding that “[intel- lectual is disability] IQ 70,” an than characterized less “for that reason the Atkins petition doesn’t suggested apply me.” se Appellant’s pro acknowledging Without Jones, letter to Judge PCRA filed motion the Atkins claim on December jury for a trial on

Appellant appeared the court January before and he prepared read statement he was “absolutely not retarded” and reiterated that he did not an pursue wish Atkins Though Appellant claim. was sworn in prior to mak- ing statement, the court subject directed he was not side, either questioning by which prompted following objection before completed prepared statement:

[COMMONWEALTH]: objection My is, if the defendant letter, wrote a is it for him inappropriate to sit here and it to Nobody mean, read the Court. has a of it. I if copy to testify, testify he wants he should and be cross-examined. I don’t know of a procedure just where he writes a letter only going he knows about to sit it here read to the Court.

THE I your COURT: concern and understand the basis your objection. juncture, At this I’m Mr. simply inviting Mason to the Court as to apprise whether or not he wishes pursue Virginia. Mason, issue Atkins versus Mr. you can cut to the chase?

[APPELLANT]: I from Should start the beginning? Why THE you COURT: answer that question? don’t * * * Now,

THE Mason, you COURT: Mr. do understand the question?

[APPELLANT]: Yes. you answer, THE give yes COURT: Can me an or no? [APPELLANT]: I wish not the pursue [sic] Atkins. Now,

THE you why? COURT: can tell me my I finish letter? reading [APPELLANT]: I—can Should letter, a Your Honor. It’s brief Yes, sir, go ahead. THE COURT: “I to thank me you giving [APPELLANT]: would like I’m not into words I opportunity put this to how feel. Since communicator, myself I to express decided great a verbal paper. I begin myself two to

“During past years, apply [sic] inmate, with John tutoring classes twice a an Mr. week approved by prison Lesko has been admin- Lesko. Mr. not At this I pay. point, to me with wish istration educate any my to waive of issues. disregard

“I the Atkins only my wish claim due a I potential Although learn. encountered ability information, very I’m aware that wouldn’t great deal complication from some exempt having me difficulties years. my drug life excessive abuse over due “However, I as that I man acknowledge do well am a unlearned, retarded, I pray I’m not absolutely but that’s disregarded,” this be misrepresentation Egan THE [PCRA counsel]? COURT: Mr. Honor, inviting

[PCRA COUNSEL]: Your is the Court at this questioning of Mr. Mason time? response

THE I think more COURT: I wanted rather than Mr. Mason. questioning full Id. represented Appellant’s This extent 17-21. competency colloquy. involvement argued have did pro se waive Atkins claim as this right strategy was appointed decision that instead made counsel. 8-10, 21. The parties court to brief directed fall articulates that he does not whether defendant who disability right intellectual has the within the definition an objection pursue over the counsel whether decide claim, PCRA Atkins and the Commonwealth March, argument on the counsel submitted issue written Meanwhile, PCRA counsel had received an Affida from trial counsel 18, 2007, January dated vit/Declaration which trial opined Appellant that “slow,” counsel was had “very limited” to ability defense, assist his and did not the “make connection” that the admission into evidence of pictures of Appellant and certain the victim would reflect on character, just own that the victim. Affida dated Believing that the Affida vit/Declaration 1/18/07. forth set “indicia of incompetence,” counsel vit/Declaration supplemental filed a petition PCRA on Appellant’s behalf, asserting Appellant (1) is entitled to a trial new because trial sua sponte the court failing erred pre-trial order a competency hearing, despite indicia that was Appellant incom (2) petent; trial counsel failing was ineffective for to request a competency hearing; tried while incom petent. Supplemental petition PCRA filed Howev 5/11/07.62 er, the supplemental PCRA petition did not appellate raise counsel’s for failing ineffectiveness this present instance trial counsel’s on ineffectiveness direct appeal. parties

The reappeared before on the court June on the issue whether right had the to waive his Atkins claim objection over outset, the At counsel. the PCRA reported counsel trial had provided an affidavit expressing his Appellant’s ability doubts about comprehend during representation, matters the which obser- vation, believed, PCRA counsel was also “relevant Atkins claim” Judge raised before Jones. N.T. at 4. 6/12/07 After a momentary exchange confirmed that there had been no competency evaluation conducted prior Appellant’s Janu- ary, 2007, appearance court, before the PCRA Judge Jones granted Appellant’s pro se request to withdraw the Atkins claim, on judge’s based determination that “Appellant of competency exhibited level sufficient demonstrate that has ability ability he had day he testified trial, presumed 62. A competent defendant is prove to stand and to incompetence, he establish he must was either unable under- stand the proceedings nature of the participate in own unable his Smith, 605, 650-651, defense. Commonwealth 899-900(2011). Atkins claim, to an right waive knowingly intelligently moreover, Thus, so.” N.T. 5-6.63 he did Atkins the merits of the issue court did not reach PCRA counsel, on to the remain- but instead went address raised claims.64 post-conviction of Appellant’s der request Following eventual denial 1925(b) relief, indi- Appellant’s Rule statement post-conviction two raising following questions that he cated would regard to Atkins issue: with for constitutionally ineligible

12. Is the death Petitioner Virgi- under Atkins v. disability due to penalty intellectual nia in violation Fifth, Sixth, rights of under the Petitioner’s to the Eight, Fourteenth Amendments United and States I, 9, 14 of Sections 13 and Constitution and Article Pennsylvania Constitution? by err that the constitu- ruling

19. Did the PCRA court to penalty tional from the death due intellectual exemption by can and the court further err disability be waived did in- permitting conducting accepting the without waiver into, on, holding hearing competen- a Petitioner’s quiry cy important to waive and was Petition- capacity rights, not knowing, er’s because the waiver was waiver invalid intelligent voluntary capacity and because he lacked the Judge eventually hearing 63. Jones addressed the failure hold a on petition compe- supplemental addressing Appellant’s PCRA counsel’s trial, responded tence to stand after the Commonwealth to the issue citing portions purportedly a motion to of the record dismiss various demonstrating Appellant’s competence to filed stand trial. Motion [Appellant’s testimony]; N.T. at 55-121 trial 12/14/07 2/13/96 case]; resting [colloquy Appellant prior at 9-11 of his N.T. 2/14/96 [colloquy Appellant prior imposition N.T. sentence]; at 6-7 to formal 2/20/96 Tepper's testimony [Dr. N.T. at 854-85 on cross- 2/16/96 Thereafter, Appellant incompetent]). examination that was not 28, 2008, February Judge Jones ruled that trial counsel was not ineffec- failing pre-trial hearing. request competency tive 64, Sarmina, up Judge this case was taken When later disposed by Judge indicated to her that the Atkins issue had been Jones, position apply reiterated his that Atkins did not expressed agreement Judge ruling permitting him and Jones’ him to waive the N.T. at 12-13. Atkins claim. 2/13/12 important waive rights, violation of rights Petitioner’s Fifth, Sixth, under the Eight, and Fourteenth Amendments to the I, Unites Constitution 9, States and Article Sections 13 and 14 of Pennsylvania Constitution? 1925(b)

Pa.R.A.P. Statement filed Responding position to the forth in set Appellant’s Rule 1925(b) statement Judge Jones erred concluding Atkins claim an may waived, Judge opines Sarmina while the requires United States Constitution that our Com- provide monwealth capital defendants the ability advance a defense of disability, intellectual may defendant choose to Atkins claim so waive an long as that choice is knowing, intelligent and voluntary. She observes that capital defen- may dants pursue elect courses action which could potentially mitigate a sentence of death sentence life imprisonment possibility without of parole. Pa.R.A.P. 1925(a) opinion Puksar, Com. v. at 52-53 (citing Pa. (holding A.2d capital that a defendant may knowingly, intelligently and waive voluntarily presen- Sam, evidence); tation of mitigation Commonwealthv.

350, 368, (1993) (“A 611-12 A.2d criminal defendant has right the to decide mitigating whether evidence will be presented on his behalf. not right We will remove that evidence.”)). compel “|j]ust admission of such She finds that as a capital may choose not to present mitigating defendant circumstances at a penalty-phase proceeding, a defen- capital an Atkins claim.” Id. at 53. dant may present choose not to Judge that: quotes explanation Sarmina this Court’s Atkins although recognizes the decision a constitutional right, provides once a state the access to proce- accused evaluation, dures for an making [intellectual there disability] is no due that process requirement the Commonwealth prove negative, a of vindicating and assume the burden the right the of by persuading defendant’s constitutional trier [intellectually fact that the is not is disabled] defendant eligible execution. Sanchez,

Id. (citing Commonwealth v. 1, 71, 36 A.3d (2011)). 24, 66 Judge opines: Sarmina thus provide our requires that Commonwealth

The Constitution of a defense ability [intel- the to advance capital defendants may pursue A elect to disability]. capital defendant lectual not to not to do The decision defense, may elect so. that or of an Atkins claim, like other claims rooted oneself avail the the for which defendant protections constitutional bears evidence, may of the be by preponderance a proof of burden himself. by the accused made Guzek, (citing Oregon Id. S.Ct. U.S. (2006); Puksar, 275-76, Pa. at 1232-33, 163 L.Ed.2d 1112 288). that Judge posits “[i]n further 951 A.2d at Sarmina affirmatively pursue capital must Pennsylvania, a defendant claim; claim an Atkins pursue failure to the is the whether a of or lack of interest is of lack evidence a borne out Id. at 54. immaterial.” in Appellant’s forth Rule

Responding position the set 1925(b) was invalid because waiver statement he knowing, intelligent voluntary not and because it was ac- right, Judge Sarmina capacity waive lacked of a consequences of the decision knowledges light Atkins claim, must made such choice an pursue intelligently voluntarily, suggests and she knowingly, permitted waive a defendant should be only competent Puksar, Id. constitutional defense. 10). competency, Regarding determination

288 n. concludes: Judge Sarmina waiving standard the same whether competency

The evidence, counsel, right mitigating right present an Atkins claim: the defendant must present right a reasonable ability consult with have the understanding and have a degree understanding rational “The focus proceedings. the nature inquiry capacity; is the defendant’s mental competency ability he has the to understand the whether question is proceedings.” Starr, 564, 589-90, Pa.

Id. Commonwealth (citing (1995)) (italics in original). 1326, 1339 A.2d regard hand, With to the Judge circumstances Sarmina acknowledges Appellant’s initial request counseled to amend to include the Atkins petition claim, his PCRA subsequent pro se indication longer that he no wished claim, pursue the and Judge Jones’ eventual colloquy Appel- grant lant and of permission to waive the Id. claim. appearing

Prior to in open court, petitioner recognized that great communicator,” he is “not a verbal so he wrote a short for statement the court. Petitioner exerted time and effort to ensure that his desire to waive Atkins claim would be understood. As soon Judge permitted as Jones him an opportunity, petitioner began reading his prepared state- ment. N.T. at 16. Judge interrupt- Jones When 6/12/2007 ed in an effort to chase,” “cut to the petitioner stated that Judge answered, he understood question Jones “I wish not to pursue the Atkins.” Id. at 18-19. By promptly responding Judge questions fashion, Jones’ in a succinct waiving the Atkins claim and then his reasons for explaining thereafter, more elaborately petitioner evidenced an aware- purpose ness in court ability and the understand proceedings. Id. Judge circumstances, Sarmina on opines based it Judge well within Jones’ discretion determine that Appellant “possessed the ‘level of competency sufficient [to] demonstrate that he has the ability ability and had the he day knowingly testified and intelligently right waive his ” Atkins claim and, to an Id. at 54-55 moreover, he did so.’ 6). (citing N.T. 1925(b)

Judge acknowledges Sarmina that Appellant’s Rule statement Judge colloquy also asserted that Jones’ failed petitioner knowingly, establish that intelligently and voluntari- ly Id. right pursue claim, waived his an n. Atkins but she discerns that this issue has been waived because not raise sufficiency colloquy did before court, PCRA and “claims cannot be raised for the first time on 302(a) (“Issues appeal.” Pa.R.A.P. raised lower court are waived and cannot be raised the first time on appeal.”)). Pertinent Judge conclusion this Sarmina’s

454 given parties that she had the the she observed

regard, 12, to Jones’ June 2007 decision Judge address opportunity Atkins claim during to waive the Febru- Appellant allow the 13, following conducted the October argument 2012 oral ary mitigation on the evidentiary hearing penalty phase 2011 68).65 52, 24 Id. n. N.T. issue. 2/13/12 this Court on behalf The brief filed before ineligible penalty is for the death under argues Appellant that Atkins and permitted he not have been the should “waive” (A) Atkins created categorical claim non-waivable because: (B) disabled; intellectually to the of the execution bar Atkins pursue solely whether an claim lies decision with (C) (D) counsel; colloquy inadequate; the “waiver” was waiver; have to the competency hearing prior should been held (E) permitting court its discretion in Appel- PCRA abused eighth against lant amendment prohibition “waive” (F) disabled; intellectually Appellant of the execution disability. Additionally, suffers from intellectual it raises sev- allegations regard Judge of error with Rule eral Sarmina’s 1925(a) opinion.66 initially prohibition that the constitutional on

Counsel assert intellectually is persons analogous the execution disabled 13, 2012, February Appellant proceedings When the on 65. commenced accurately Judge Judge disposed indicated to Sarmina that Jones of the issue, position Appellant reiterated his not Atkins Atkins did agreement Judge ruling apply expressed to him Jones’ permitting N.T. him waive the Atkins claim. at 12-13. issue, argument mitigation Following penalty phase Judge on oral inquired you "Do either of want to Sarmina counsel: comment Mr. comment that he is not at 68. In re- Mason’s retarded?” expressed sponse, Appellant’s his belief that whether legally intellectually not been disabled had determined because hearing, my permitted Appellant was to waive an Atkins stated “It’s something actually view not we can waive and some- that that’s that’s thing may may appeal, certainly but not not an issue it’s at issue before this Court.” Id. advocate, “Although generally argu- it counsel who we attribute Sam, represent.” parties they whom ments to the Commonwealth v. 571, 565, (2008). 523, regard 594 To do so with inaccurate, however, issue would be as from the Atkins time Jones, Judge September, pro 2006 se letter to delivered his 13, through Judge during February his comments to Sarmina consistently argument, Appellant expressed has his belief oral prohibition on the persons, execution insane those who of 18 age committed, were under at the time the crime was or those who an recklessly have committed intentional or murder, indifferent and is thus absolute and cannot be volun tarily at 63 (citing Kennedy waived. v. brief Louisiana, 2641, 554 U.S. 128 S.Ct. L.Ed.2d Simmons, (2008); Roper 543 U.S. 125 S.Ct. Arizona, Tison v. (2005);

L.Ed.2d 481 U.S. 107 S.Ct. (1987); Wainwright, Ford v. 95 L.Ed.2d 127 477 U.S. 2595, (1986)). 91 Quoting Atkins S.Ct. L.Ed.2d 335 that “[the United States a ‘places Constitution] substantive restriction on the power State’s to take the life’ of a [intellec Atkins, Id. at 64 tually offender,” disabled] 536 U.S. at State, 2242), Rogers S.Ct. counsel also cite 276 Ga. (2003), 575 S.E.2d 879 that “a holding as capital defendant waive an Atkins may his claim where mental is capacity challenged or otherwise to appears question, and requir adjudication an to death.” Id.67 ing for In eligibility determine stance, support further of their counsel an application filed to a supplemental file “short addressing supplemental brief au 18, 2014, thority” on following June the United Su States apply pursue Atkins does not him and that he wish to does not to the 1925(b) Although Rule claim. statement and brief to this Court position filed on behalf reiterate counsel counsels' that applies to permitted Atkins and that he should not be to claim, 1925(b) nothing withdraw the in the Rule statement or brief Thus, suggest position contrary. has altered his to the issue, regard arguments presented by to this we attribute the ("counsel”), separate apart position counsel from the by Appellant taken himself. Rogers explained: 67. As the court Georgia, [determining procedure In to be followed if a defen- intellectually depends upon dant is disabled] the date of trial. For 1, 1988, July § permits those defendants tried after OCGA 17-7-131 they [intellectually them to disabled] contend were at the time of present disability] the crime and to evidence of such [intellectual cases, capital required finder. In fact the fact finder is then during phase guilt-innocence determine of trial whether the disabled], guilty [intellectually 17-7-131(j). § is but defendant OCGA scheme, statutory specific Under this where the trier of fact a makes disabled],

finding [intellectually that the is defendant defendant imprison- cannot be executed but must instead be sentenced to life ment. Hall, supra, asserting May decision preme Court’s the contention that Atkins claims non- Hall supports are The supple Brief filed 1.68 Supplemental waivable. that Commonwealth v. Rob additionally mental asserted brief inson, 345, 381, 998, 1019 demonstrates Atkins as “interpreted presenting a cate that this has Court to the execution of gorical, intellectually bar non-waivable Id. at 2.69 disabled.” that an Atkins

In claim not be contending may addition waived, propose that the decision whether voluntarily omitted). 68-69, (footnote Rogers Rogers, 276 Ga. at 575 S.E.2d at explained that: further 1, 1988, July prior judicial for whom A defendant tried no determi- made, may disability] choose will have been [intellectual nation filing disability] by petition [intellectual of his her raise issue evidence, corpus presenting sufficient credible includ- habeas retardation, diagnosis ing genuine expert least one mental create a regarding[intellectual disability]. issue (citation Id., omitted). S.E.2d at 881 If the 276 Ga. at habeas issue, genuine will be corpus court determines there defendant evidentiary hearing jury to a full before a on the issue of entitled intellectual (a disability Fleming hearing). so-called Rogers Rogers specifically held that once chose to initiate habeas by filing petition alleging intellectually corpus proceedings he was disabled, successfully sufficient credible evidence such adduced hearing disability evidentiary to authorize a full on the issue intellectual of his disability, Rogers right could not elect waive intellectual evidentiary hearing permit it was error for the trial court him that to Id., 69-70, right hearing. the to the 276 Ga. at 575 S.E.2d at waive 882. grant hereby "Application Supplemen- 68. We counsels’ to File Short Addressing Authority” Supplemental as tal Brief found in the United Hall, supra. explained Supreme Court’s decision in we in States As Hackett: authority The 5-4 Hall narrowed of states to decision disability, holding rely cannot on a fixed define intellectual IQ states (in Hall, 70) as conclusive evidence of a defendant’s test number i.e., disability range, if that score falls within a certain intellectual acknowledged margin error”—meaning, inherent “the test’s of IQ lower,,.. IQ terms, practical if reveal an of 75 or The Court tests Eighth requires permit thus held that Amendment states IQ petitioner present a demonstrated with such additional evi- disability], regarding including testimony dence of [intellectual functioning adaptive deficits. Id. at 1998-99. 619, C.J., Hackett, (Castille, concurring) (citing 626 Pa. at 99 A.3d at 42 Hall). unsuccessfully appellant 69. The Robinson asked this Court extend damage. by Appellant, with severe brain As cited we Atkins individuals in dicta that: noted

457 Atkins defense “lies pursue an solely with counsel.” Id. 64. They acknowledge that a may decide, defendant against advice, counsel’s to plead guilty, “whether waive a jury, testify behalf, in his or or her take an appeal,” own but suggest capital defense permitted counsel should be to choose to Atkins claim without obtaining the defendant’s an pursue Nixon, consent. Id. at 64 v. Florida 175, 187, 543 U.S. (2004)) 125 551, S.Ct. (quoting Taylor v. L.Ed.2d Illinois, 400, 657, 417-18, 108 U.S. S.Ct. at 98 L.Ed.2d 798 Barnes, (1988); Jones v. 745, 751, 3308, 463 U.S. 103 S.Ct. (1983)).70 Here, observe, 77 L.Ed.2d 987 since goal both Appellant and counsel was to obtain relief from Appellant’s sentence, convictions and death up it counsel to determine how Id. goal. best achieve that They additionally assert that allowing Appellant to with Atkins draw the claim objection, over counsels’ the PCRA court erroneously permitted hybridized representation. Id. Ellis, 65, 65 29 (citing Commonwealth 176, 180, n. Pa. (1993) (“no 626 A.2d constitutional to hybrid right representation either at trial on appeal”)).

Couching Appellant’s efforts to end pursuit Atkins claim as “an effort to control and dictate the course of broadly questions relating This Court stated legality has sentencing Aponte, are not waivable. Commonwealth v. (2004). Additionally, 1n. the Atkins Court explained ‘places [United States] that "the Constitution a substantive power restriction on the to take the [intellectually State’s life’ of a[n] offender,” 2242, leaving disabled] 536 U.S. at 122 S.Ct. little implicate legality sentencing. doubt that actual claims Atkins express 70. Nixon held that counsel’s failure to obtain the defendant's strategy conceding guilt guilt phase capital consent to a at the of a automatically performance trial did not render counsel’s deficient unresponsive attempts where remained defendant had to counsel’s Instead, held, explain strategy. High Court "if counsel's strate- gy, given bearing guilt, the evidence on the defendant’s satisfies the standard, matter; is Strickland that the end of the no tenable claim Nixon, 192, ineffective assistance 125 would remain.” 543 U.S. S.Ct. at 563. 458 Judge assert that Jones case,” next

litigation of his mental disabilities Appellant’s that determined should have prevented him himself and representing him from precluded judgment” as to the reasoned “overrul[ing] counsel’s from Edwards, (citing Indiana 554 Id. at 70 U.S. Atkins claim. 2879, 2386-87, 164, 175-176, 171 L.Ed.2d 345 128 S.Ct. El, 126, 134 2, 1158, n. A.2d Commonwealth v. 602 Pa. (2009)).71 1163 n. 2 IQ full scale result assert further

Counsel disability.” Id. at 70 range of “intellectual of 71 within the Gibson, 411, Commonwealth v. 2/16/96; (citing N.T. (2007)).72 Gibson 416, 167, They indicate A.2d who “obtained Atkins relief with capital a involved defendant [Edwards], Supreme whether “In the United States Court considered meaningful competency legally to stand distinction between there was Spotz, represent Pa. competency oneself at trial.” trial and 56, Although noting that issue in Indiana v. "[t]he at 266. A.3d El, appeal,” explained in this Court Edwards is not relevant this supra, that: applied standard as to criminal defen- clarified the Faretta [Edwards ] illness, but nonethe- dants who from some form of mental are suffer Edwards, competent 554 U.S. less to stand trial. Indiana v. (2008). question The was whether the S.Ct. 171 L.Ed.2d 345 proceed pro judge deny request to se where could a defendant’s trial judge (schizophre- determined that the defendant’s mental illness trial, nia), affecting competency stand nonetheless while not representing precluded adequately from himself. The Court held him authority, judge concluding "the Constitution that the had such permits judges particular to take realistic account of the defendant's capacities by asking whether a defendant who seeks con- mental competent mentally to do so. States duct his own defense at trial is [may] upon representation by competent counsel for those insist enough stand but who still suffer from severe mental illness to trial they competent proceedings point where are not to conduct trial 176-78, by themselves.” Id. at 128 S.Ct. at 2387-88. El, Edwards, diagnosed 602 Pa. at 135 n. 977 A.2d at 1163 n. 2. reports schizophrenic, lengthy psychiatric had record of which indi- competence. interspersed periods cated active mental illness acknowledge testing that "Dr. Cooke’s later showed a full 72. Counsel IQ [intellectually scale but he noted tested in range key brief at n. 30 subtests.” disabled] 10/26/11, (wherein, NT 22-23 Dr. Cooke testified that scored memory delayed for immediate verbal a 68 and a 67 the subtests memory)). verbal

459 74.” Id.73 an of IQ Here, score citing to the testimony of Larry Lawhorn, 2/16/1996, 43-52; NT the testimony Thel Mason, 2/16/1996, ma 54-64; NT the testimony Dr. Allan 2/16/96, 72-104; NT Tepper, testimony the of Dr. Gerald 10/26/11, 14-143; Cooke NT testimony the of Dr. Robert Sadoff, 10/24/2011,13-85; the testimony Gordon, of Dr. Barry 10/27/11, 11-155; NT and the of Dr. testimony Richard Restak 10/28/11,3-48, NT counsel assert that Appellant from suffered adaptive deficits in at least five of the eleven skill areas set (functional forth in academics, the DSM-IV social and inter skills, self-direction, personal self-care, and safety), and that Appellant also meets the American Association on Intellectual and Developmental standards, Disabilities which that require deficits in be demonstrated one of three broad areas—concep tual, social, Id. at 71. practical. and (1) relatedly

Counsel assert that the PCRA court erred likening the waiver of an Atkins claim to the waiver of the presentation of mitigating evidence because Atkins “imposes a categorical, substantive to the mentally bar execution the (no disabled, nonwaivable,” Id. and is thus authority citation to (2) provided), that it finding Judge was within Jones’ discre- tion to Id. 71-72, “find the waiver to adequate,” be failing controlling apply Supreme United States Court law on the requirements adequacy of waiver of important (not Id. rights. authority 72 citation to provided). an Atkins claim may be

Counsel that if next assert even waived, Id. at 65. colloquy the waiver here inadequate. was Specifically, they complain that was advised standards, legal burdens, applicable consequences “waiver,” of his nor permitted question Appel- was lant, thus nothing there is the record from which review- IQ Gibson, appellant’s range, In was within the 70 to 75 but parties agreed depending upon degree Court noted that both that IQ adaptive possible person ranging deficits it with an from 70 disability, appellant’s suffer from intellectual and that in the testimony expert case the of his was PCRA witnesses consistent understanding supporting court’s such deficits were on a scale finding disability, of intellectual thus the Court the PCRA affirmed appellant intellectually court’s determination that the disabled. 417-418, Gibson, 592 Pa. at at 171. decision was know-

ing court could conclude Id. at 66. intelligent. ing, voluntary, competency hearing insist additionally “[a] Counsel waiver,” Appellant’s to the brief prior held should have been has a that a defendant support thereof argues but incompetent corresponding not to tried while right (citing Cooper hearing competence. to a right 4, 1377, n. Oklahoma, n. 116 S.Ct. 1373 U.S. (1996) (Because not to right be tried L.Ed.2d must fundamental, the court is so trial incompetent while timely failed to make a if the defendant has “protect [it] even determination.”); Drope v. Mis competency for a request souri, 162, 896, 103 96 S.Ct. 43 L.Ed.2d 420 U.S. (Where incompetency, a has are indications defendant there incompe not to be tried while process right a substantive due Robinson, 375, 836, 15 tent); 86 S.Ct. 383 U.S. Pate v. (1966) (Where incompe there are indications 815 L.Ed.2d to process right procedural has a due a defendant tency, This to the issue competence)). argument goes hearing as the result of the is entitled relief Appellant whether on his to stand trial. As hearing competence failure hold noted, relief was raised and before ground this addressed from the Atkins issue. Judge separate Jones Judge properly that Jones counters The Commonwealth claim, argues to withdraw Atkins allowed if to counsel and denied that even he had deferred claim, it not have would entitled request withdraw to relief. request withdraw regard granting Appellant’s With long as Commonwealth observes so claim, Atkins voluntary, a defendant knowing, intelligent and the decision is mitigating present his counsel not may properly direct sentencing proceedings, on his even during evidence behalf health. concerning mental mitigating evidence defendant’s Small, (citing at Commonwealth v. Commonwealth’s brief 72 Puksar, (2009)); 467, 549, 425, A.2d 597 602 Pa. 980 574-75 288; 710-11, 276-277, Rega, 593 Pa. at 933 951 A.2d at Pa. 1026-28; Birdsong, 538 Commonwealth v. Pa. A.2d 602-03, (1994); Sam, A.2d 368-69, 33-34 Pa. A.2d at 611-12. The Commonwealth further notes that this Court has concluded ethical rules not ] furnish “dot right with the to override what the client considers in his Cross, be best interest.” (citing Id. Commonwealth v. 38, 44, 173, 176 (1994)).

The urges Commonwealth precedent that such applies equally here. Although recognizing that Atkins created a new defense to the imposition sentence, a death the Common- emphasizes wealth that the still carries the defendant burden of proof, such that the defense must litigated only be if the defendant first proffers evidence to it. support Sanchez, Commonwealth v. Pa. 65 n. 62- A.3d (2011)). 63 & n. 19 Thus, declares, Commonwealth PCRA court correctly that, here concluded with the presen- as tation of mitigation evidence, may “counsel their override client’s decision proceed defense.” Id.

Noting counsels’ reliance on support Nixon to the conten- tion that counsel must permitted to override defendant’s directions, the argues Commonwealth that Nixon is factually dissimilar, and disputes that its holding helpful counsels’ (unlike position, arguing that it instead involved a defendant here) who approved rejected neither nor counsel’s tactic, and that it only held that counsel informs the “[w]hen defendant of strategy the counsel to in believes the defen- unresponsive, and the defendant is dant’s best interest strategic counsel’s choice is not impeded by any blanket rule demanding the defendant’s explicit (citing consent.” Id. at 73 Nixon, brief)). 192, 543 U.S. at 125 (emphasis at 563 in S.Ct.

The disputes suggestion Commonwealth also counsels’ that Appellant was from precluded directing the counsel eschew objectives Atkins claim did not disagree because he with of litigation not and had waived To altogether. counsel asserts, contrary, may Commonwealth a defendant direct counsel not to proceed specific lines defense waiving declining without counsel or challenge imposition a capital Rega, 710-11, sentence. Id. at 73 593 (citing Pa. at 1026-28; 602, 933 at Birdsong, A.2d at 650 538 Pa. A.2d at 33- 462

34). this is a disputes the Commonwealth Likewise request as did hybrid representation, matter of briefs, witnesses, or present argue portions to file his own not to simply representatives directed his case, but instead name, objectiona- he deemed a course action pursue, his ble. Id. acknowledges counsels’ assertion Commonwealth

The categorical voluntarily that “cannot be Atkins adopted bar that this waived,” argument discerns the Commonwealth but here is not one of waiver question misguided is because may say have the instead “whether defendant ultimate but is line of defense.” Id. at particular pursue whether “[pjlainly, emphasizes In the Commonwealth arguing, so an Eighth Amendment to execute offender it would violate given opportunity an to consider jury unless a had been Guzek, 526, Id. evidence,” 546 at 126 (citing U.S. mitigating 1232) however, Court, has that a held “[t]his but S.Ct. present not to such evi- may defendant instruct Thus, opines, Appellant here dence.” the Commonwealth was to the present whether evidence lower entitled decide Id. intellectually that he court to establish was disabled. “waiver,” op if as Even decision considered withdrawal, voluntary the Commonwealth maintains posed including Eighth Amend rights, that constitutional under LaGrand, Id. at 74 Stewart v. ment, (citing may be waived. (1999) (defen 1018, 196 526 U.S. 119 143 L.Ed.2d S.Ct. execution); challenge waived constitutional method dant Patterson, 104, 144, Commonwealth v. (defendant claim that uncon penalty waived death him)). points as The Commonwealth out applied

stitutional jurisdictions—has fact that this Court—like courts other Steele, held Atkins an claim waived. Pa. Frazier, State v. 808-09; 115 Ohio St.3d A.2d Commonwealth, (2007); Bowling N.E.2d Commonwealth, Winston v. (Ky.2005); 371-72 S.W.3d (2004)). Indeed, 51 268 604 the Common Va. S.E.2d Atkins claim unwaivable an would “deeming opines, wealth procedures eviscerate the this Court has adopted present ).74 Sanchez, ing such claims. Id. (citing supra The Commonwealth to dispute continues counsels’ conten- tion “waived,” that an Atkins claim cannot discerning be that: claims are fundamentally

Atkins different than the other “categorical bars” counsel baldly assert cannot be “volun (Initial 63). tarily waived.” of Appellant, Brief As this observed, Court has “[t]he fundamental query Atkins differs in kind from in a case such as Roper v. Sim mons, (2005), U.S. S.Ct. [125 161 L.Ed.2d 1] which Eighth ties Amendment ineligibility death to an ob jective measure, mathematical specifically, the defendant’s age.” [Com. v.] DeJesus [619 Pa. 70], A.3d ^[62] at 85 proof Unlike of age, [ ]. is determining whether one intellectually highly subjective.” disabled is “often Moreover, the defense typically requires substantial evi dence, (at must presented be to a jury least trials decided). Sanchez, after Atkins was 36 A.3d at 62-63. Attempting prove is disability intellectual thus more akin presentation mitigation evidence trial defens other es.

Id. at 75. distinguishes The also claims of Commonwealth incompetency to procedures be and the applicable executed those claims:

Unlike intellectual a claim of disability, incompetency to be “presumably ripens only executed after a death warrant has 56], issued.” Commonwealth v. Banks Pa. [612 A.3d (Pa.2011). Moreover, claimants, unlike Atkins any offender with incompetency meritorious claim would presumably forego also it. incompetent See Common 177], 1016, 1020 wealth re Heidnik [In ] [554 Pa. (Pa.1998) (“it makes to inquire no sense” con whether a prisoner demned competent forego raising a claim of incompetency). Given the differences nature additionally 74. The Commonwealth counsels’ reliance on dismisses Hall, observing that Hall "concerned definition intellectual disability. may It did not address whether a defendant decline to claim he has that condition.” Commonwealth’s brief at 75. 464 brought, in must this

claims, timing they which be and adjudicating competency procedures held that for Court has for “inapposite” are Atkins claims. Sanchez executed 1], 56 n. 15. 36 A.3d at Pa. [614 Id. at 75-76. colloquy Appellant that to counsel’s claim

Turning Judge inadequate, the Commonwealth echoes Sarmina’s was first counsel raises this issue for the conclusion that because challenge ground that as a counsel has waived appeal, time 1925(a) 26); at n. (citing opinion at Rule relief. Id. 76 Fletcher, 778; 302(a); 604 Pa. at 986 A.2d at Pa.R.A.P. Puksar, 275, 951 597 Pa. at A.2d at 288. asserts, allega if the Commonwealth preserved,

Even meritless, surrounding as the circumstances Appellant’s tion is the Atkins claim and court’s request withdraw decision request support Appellant’s that a determination that grant knowing intelligent. (citing Id. at 76-77 decision was N.T. 6). ef acknowledges at The Commonwealth counsels’ involving guilty circumstances to analogize fort to these cases counsel, of trial and the waiver but Commonwealth pleas closely is more that here akin contends decision mitigating evidence, from presenting to refrain the decision no of or requirement it that is “constitutional ings, which not east did doubt Appellant’s competence. Id. at 78-79.

Also for waived present court, failure it before the PCRA according to Commonwealth, is counsels’ claim under Edwards, supra, that an otherwise competent may defendant nonetheless found to lack be sufficient capacity mental represent 302(a)). himself. Id. at 80 (citing Even if Pa.R.A.P. allegation of error had preserved, been the Commonwealth contends that Edwards permits that held the Constitution to impose greater states limits on self-representation but did require not apply courts to a heightened of compe- standard for tency self-representation.

The lastly Commonwealth challenges suggestion counsels’ that an evidentiary hearing is necessary prove Appellant’s Atkins, ineligibility under emphasizing that the Common- expert wealth’s opined merely “low normal intelligence,” any and counsel to present expert have failed opinion Appellant is intellectually disabled. Id. 80-81 (noting that Tepper Dr. did not so opine, and Dr. Cooke suggested that Appellant had borderline intellectual function- ing but not disability). intellectual

A PCRA Court “is not obliged to hold a an hearing [on Atkins adequate unless an proffer claim] has been made concerning disability], [intellectual an issue material Porter, fact is present.” determined be A.3d at 25. not proffer Since counsel did any expert opinions identifying intellectually disabled, defendant as the PCRA court would had their claim even defen- denying justified have been not it. withdrawn dant

Id, herein, claims we among numerous raised address

From permitted Appellant when it PCRA court erred whether the an Atkins hearing, as we pursue override counsels’ decision specifically determine doing, In so we dispositive. it find authority whether raise decision-making over allocation sought has counsel’s an Atkins claim where defendant his or her sentence death. vacating assistance that Atkins did “speak of a has recognized This Court determining [intellec- constitutionally-mandated procedure Sanchez, cases.” Commonwealth disability] capital tual (2011). Rather, Atkins 1, 48, specifically 36 A.3d at “ ways developing appropriate ‘to task of left the States the upon their execution of the constitutional restriction enforce ” Atkins, 536 U.S. S.Ct. (quoting sentences.’ 2242). forthcoming, this Court response no legislative With which an process over a series cases out laid doing, In so may brought. disability challenge intellectual that, to determinations of analogous in one matter held we Atkins seeking a defendant competency sanity, criminal disability under intellectual prove the relief bears burden a of the by preponderance definitions evidence. accepted Mitchell, 202, 210 258, A.2d nn. v. 576 Pa. 839 Commonwealth (2003). It a defendant bears the burden 7 8 follows that & may in or Atkins-based place claim the first bringing an Atkins claim altogether. forego bringing instead elect context, a defen- recognized capital a we have In similar mitigation evidence right forego presentation dant’s with a complying to hold counsel ineffective and declined insis- knowing intelligent apparently defendant’s capital Puksar, 282, A.2d at 292.75 to that 597 Pa. 951 end. tence Sam, 368-69, 611-12 See also (holding 635 A.2d Puksar, challenge had to the suffi we that there been no 75. In noted although colloquy appeared ciency colloquy, on its face of the presume thorough, enabling the waiver was been this Court have intelligent. knowing, voluntary, and Puksar at

467 capital defendant right has a to present mitigating evidence at sentencing, 9711(a)(2), § 42 Pa.C.S. and he can waive that right; duty counsel has no to introduce mitigating evidence where a specifically otherwise.); defendant directed Tedford, (where 598 Pa. at 712-15, 960 at 44-46 A.2d capital defendant instructs trial counsel not to offer mitigating evidence, coun- sel’s failure to investigate mitigation evidence not prejudicial). occasion, have not however, We had to decide whether counsel may persist seeking an Atkins hearing over a defendant’s objection where the defendant has otherwise authorized coun- sel to challenge or his her sentence of death.

The United Supreme States Court has four identified deci- sions that are to a case, fundamental criminal such that may choose a course of action respect to them until obtaining first express consent of the defendant:

It is recognized [ ] that the accused has the ultimate author- ity make certain fundamental regarding decisions case, as to plead guilty, whether to jury, testify waive a or behalf, her own take an appeal, Wainwright see Sykes, 1, 93 n. U.S. 97 S.Ct. n. (BURGER, C.J., L.Ed.2d concurring); ABA (2d ed.1980). 4-5.2, for Criminal Standards Justice 21-2.2 addition, In that, limitations, have held we with some may advocate, defendant elect to act as his or her own Faretta v. California, U.S. 95 S.Ct. (1975).

L.Ed.2d 562 nor any Neither Anders other decision however, of this Court suggests, indigent defendant right has a constitutional to compel appointed counsel to press client, points requested by counsel, nonfrivolous if as a matter of professional judgment, to present decides not those points.

[**] ^[*] Anders, This Court’s far from giving support decision per the new se Appeals rule announced the Court may [that client dictate all claims to nonfrivolous be raised in an appeal] .recognized ... that the role of the advocate “requires that he client’s to support appeal his the best 744, S.Ct., his ability.” U.S., 386 at 1400. 87 Here the 468 declining just [by defendant’s

appointed counsel did appellate claims]. request to add nonfrivolous 3308, Barnes, 751, 103 745, 753-54 S.Ct. 463 U.S. v. Jones (1983). 3314, 3312, 987 77 L.Ed.2d Jones, Supreme in since its decision years In thirty over rights of fundamental this narrow list not to Court has added defendant, for ulti- of which are or the exercise waiver on the decide, it has issue though elaborated mately, somewhat: duty has a to consult with the undoubtedly attorney

An decisions,” including questions “important regarding client Strickland, U.S., strategy. overarching defense however, obligation, That does 688, 104 S.Ct. 2052. “every consent to obtain defendant’s require Illinois, 400, 417-418, 484 U.S. Taylor v. tactical decision.” (1988) (an attorney has 646, 98 L.Ed.2d S.Ct. of the defense without aspects most authority manage re approval). But certain decisions obtaining his client’s are of rights or of basic trial waiver garding exercise made the defendant they moment that such cannot affirmed, has “the defendant, A this Court surrogate. a plead guilty, authority” determine “whether ultimate behalf, or her own or take an testify jury, a waive Barnes, 745, 751, 103 3308, S.Ct. v. 463 U.S. appeal.” Jones (1983); Wainwright Sykes, 433 U.S. 77 L.Ed.2d J.,C. (Burger, L.Ed.2d n. 97 S.Ct. decisions, must attorney those an concurring). Concerning consent to the with the defendant obtain consult both course of action. recommended Nixon, Though High 125 S.Ct. at 560. 543 U.S. consult with a only duty Nixon recognized Court “ decisions,’ may include which ‘important regarding defendant jurisprudence our overarching strategy,” defense questions Pennsylvania with the Rules aligned has itself Professional of a duty gain the consent defendant recognize Conduct defense, overarching objective purpose regarding many to control the authority counsel the and leaves to objec- achieving those involving strategy and tactics aspects Sam, tives. See 367-69, 535 Pa. at 635 A.2d at 611-12 (relying 1.2 of Pennsylvania Rule of Rules Professional Conduct it provides wherein that “a lawyer by shall abide client’s objectives decisions concerning representation”).76 of In the collateral challenge brought before the PCRA court below, it was overarching objective Appellant obtain vacating judgment an order capital sentence. Just one from among multiple claims forth to counsel set accom- was an Atkins plish objective claim, and, this so, prima posited of Appellant’s evidence intellectual facie disability an evidentiary hearing necessitated to determine whether Appellant protected Eighth under the Amend- prohibition ment’s against the execution the intellectually IQ disabled. Record evidence of Appellant’s score of 71 as a child, his in in placement special school, classes elementary his adaptive challenges as by family counsel, described and trial opinions and the of Dr. Tepper on his most recent post- based conviction Appellant’s review of history were offered to the PCRA court support as threshold of this claim entitling Appel- lant to a evidentiary full hearing. Through this claim and supporting proffer, counsels’ decision to advance an Atkins claim was not in objective conflict with PCRA Appellant’s but was, instead, an strategy evidence-based offered in support objective. this question

The remains as whether decision Atkins rights was, nevertheless, over comparable to the subject fundamental decisions to a defendant’s choice as de- Jones. The by the United in Supreme scribed States Court United in Supreme Eighth States Court has identified fundamental, Amendment a personal right intellectually here, from capital punishment. Yet, disabled insulated is, fact, there has no been determination that provides pertinent part: 76. Rule 1.2 (a) lawyer by concerning objec- A abide shall a client’s decisions representation, ... and tives shall consult with the client as to the case, by they pursued.... means which are to be In a criminal decision, lawyer shall abide the client's after consultation with the entered, lawyer, plea jury as to a to be whether to waive trial and testify. whether the client will

Pa.R.P.C. 1.2. disabled, constitutional right and so the avoid intellectually in his yet on this has not attached basis capital punishment from fact, alone, situation distinguishes case. This Jones, the four fundamental contemplated those under where in a clearly therein are vested defendant at rights recognized to waive or exercise or she must decide whether the time he Here, cannot be said to waive or exercise them. satisfy has the condition right yet conditional where he upon right which the rests. to or a deciding than on whether waive exercise

Rather right, Appellant and counsel were con- fundamental vested Atkins hearing of an only prospect seeking fronted with the if a possessed a court could determine indeed where capital Though surely important to vacate his sentence. right to pursue the decision the hear- potentially consequential, in itself, principles not the inherent the ing, implicate did basic rights of a with a set of concept volitional defendant furnished him government’s against to confront the case or with which Jones. recognized her that were of not to example, plead guilty For the decision whether or Nixon, indeed, defining is “of moment” as described in a such defendant, assert his or moment for the who must either her or of charges guilt of the make an admission on the innocence instance, In the defendant’s act a charges. represents either basic, statement, rejection accep- be it one of or fundamental tance, on the In government’s charge against defendant.77 contrast, to an claim Atkins forego decision re- judicially recog- High illustrates the 77. The Court’s decision Nixon nized, right plead guilty by differentiating fundamental to it from the conceding guilt during capital Specifically, High of a case. act obliged express was not obtain from Court held that counsel to consent consistently non-responsive employing a aloof and defendant before a guilt during guilt phase strategy capital trial. that conceded a conceding holding Central to this was the distinction made between guilt during pleading guilty, ultimately trial and the latter of which is a always requires express the defendant and a decision for defendant’s Conceding guilt during capital important trial was an consent. already very high though prospect of a conviction was decision-even it a of the case-for the obvious reason that made verdict under the facts phase proceeding certainty. guilt subsequent all but and a death a However, prosecution relieve the of its because the concession did not fleeted no statement on his respect with to the position sentence he faces. It certainly did an represent accep- or tance his sentence an it appropriate, admission that is consistently challenged he capital has his sentence.

Similarly, counseled has the right fundamental defendant filed, filed, to demand that an appeal be but once it is our has jurisprudence recognized right never in the appellant command that counsel either raise withhold a challenge legality appellant’s sentence. The autonomy ultimate ends with the decision over If appeal. whether take an appeal taken, may decide which nonfrivolous issues raise, including those pertaining appellant’s sentence. An appellant’s impasse recourse is to upon either to self- seek represent or wait to raise an ineffective claim on assistance appeal. collateral

Where, here, as capital expressed convict has desire death, live his challenge sentence of and counsel has raised an Atkins claim accordingly, the defendant’s volitional interest claim withdrawing the would seem to implicate only his to avoid a categorization “intellectually desire disabled” which not identify he does and which he to find appears embarrassing.78 such, As right decision waive the prove every first-degree charge

burden to element of the murder be- doubt, trial, yond kept rights jury a reasonable to intact defendant’s to a him, against evidentiary objections, confront witnesses and to make possibility jury rejection allowed for least theoretical of the case, prosecution’s severely grounds appel- and would not limit the review, core, late the chosen defense did not involve the loss of such, rights guilty plea. fundamental that occurs with a As counsel was implement overarching strategy gaining free to this defense without consent, express High defendant’s and the Court reviewed counsel’s Strickland, strategy chosen under the rubric for ineffective assistance of counsel. clear, have, To be Nixon was silent on whether the defendant could as it, law, strategy objected openly a matter of blocked counsel's had he to However, today. which is the we issue address the Nixon discussion is highly important insofar as it consider instructive did not and consequential conceding guilt capital act of in a case to be the function- equivalent right guilty plead al of the fundamental to so as to condition authority receipt express counsel’s on of the defendant's consent. 78. Where PCRA counsel seeks to an done advance Atkins claim as was here, potentially any consequence we cannot discern harmful to it “of to his case when does not

cannot such moment” be a vis position vis capital a sentence. mean We manifest in of the defendant’s interest importance not to diminish the respectfully disagree that such an interest regard, we this but contemplated case as that term is in is “fundamental” one’s and Nixon. Jones note, on simply the decision additionally,

We because Atkins to a hearing potential relates pursue whether an in not right necessarily the defendant constitutional does of a within it to the rank fundamental decision elevate See, Wainwright, e.g., Jones rubric who should decide. in supra (holding authority defense has ultimate counsel de or not to advance Fifth Amend ciding defendant’s whether through seeking motion of defen rights suppression ment a violation Miranda v. allegedly obtained dant’s statement Arizona, (1966)). 1602, 16 86 S.Ct. L.Ed.2d U.S. importance that a has and Nor does the fact decision carries implicates rights judi that it significant consequences mean personal so that counsel cially recognized as fundamental Indeed, subject power. implements it defendant’s veto to lie decisions have been held within numerous defense clearly great importance ultimate discretion are counsel’s See, e.g., United case. consequence defendant’s (4th Cir.2010) (“[d]ecid Chapman, States F.3d (or reject or ing accept to seek mistrial whether whether court)” the trial a mistrial offered falls counsel defendant). circuit court of left Chapman, appeals

In the federal to seek or an offer of accept over whether mistrial decision many large part because technical consider- bring such a matter ations identified and evaluated vacation, right— objective any of sentence waiver or forfeit of a defense otherwise, any incurring punish or risk of an enhanced fundamental ment, Mashburn, Slobogin Lawyer’s See The Criminal Defense Disability, Fiduciary Duty to Clients Mental 68 Fordham L.Rev. (2000), 158] argue regarding in which the that a client’s wishes authors abnormality or present evidence of mental as a defense whether generally competent, mitigating control where he is but factor should available, likely position only very prevail, one is where the is good do than harm. and its success would more the decision within the realm of the strategic tactical. Deciding whether defendant pursue Eighth should capital punishment Amendment bar to under Atkins likewise requires of complex an assessment legal and highly technical diagnostic considerations. fact This further distinguishes the Atkins hearing decision from the fundamental enu- decisions Jones. merated in of Again, part what qualifies the decisions regarding whether to or plead guilty, trial, testify attend or one’s defense as fundamental ones resting with the defendant the recognition that the defendant has an knowl- intimate edge and of understanding the facts and of circumstances his underlying her case that is making crucial to such decisions. The same cannot for the be said defendant with potentially Atkins claim, the very question colorable where asking wheth- er a defendant meets the psychological criteria of “intellectual- ly for purposes disabled” of the Eighth on Amendment turns complex, diagnostic inquiry into whether the experi- defendant enced of sub-average onset both functioning intellectual as revealed by IQ adaptive tests and functioning deficits on based standards definitions adopted the DSM AAIDD age eighteen. short, before the In the intricacies and categorical technical nature assessment at issue it takes scope basic, outside the subject fundamental decisions to a defendant’s control.

In light foregoing, that, of the we find where con basic, fronted with neither a fundamental concerning decision Appellant’s PCRA nor challenge disagreement between coun sel and respect objectives overarching challenge, court in ruling PCRA erred that counsels’ Atkins authority subject to seek an hearing to Appellant’s Furthermore, veto. Appellant’s pro se by acting directly moving letter court to accept of the coun waiver seled Atkins claim, court impermissibly PCRA invited hybridized representation. What our has jurisprudence con sistently prohibited appellate both trial and levels when strategic disagreements arise between and counsel defendant option hybrid representation, is the where an otherwise de represented acts as exercising defendant co-counsel facto Ellis, (holding there swpra of the defense. control over parts appeal); on Common hybrid representation no to right is cf (2011) 994, 1000 437, 446-47, Cooper, 611 Pa. wealth v. give to a acknowledge to force (upholding court’s decision a it dovetailed from counseled defendant where pro filing se adopted ultimately and where counsel strategy with counsel’s it). of Appellate Rule Procedure 3304. “Pennsylvania See also the is purpose policy The behind Hybrid Representation.”79 to efficiency representation conflicting avoid promote to In a represented the event strategies in defense. motion, or pleading, filing a se to the presents pro defendant shall, therefore, court shall not entertain it but court, instead, to may it to counsel who then decide whether forward Ellis, supra. act on concern. the defendant’s taken, to for the PCRA court have proper The course acting therefore, upon Appel- have been to refrain from would instead, By, it and to forward to counsel. pro lant’s letter se unilaterally inviting Appellant prepared deliver a statement representation, opposition chosen course counsel’s during one another against court defendant and pitted hearing. the PCRA

We, therefore, this PCRA court for remand matter claim consideration of counseled Atkins-based and deter- evidentiary hearing mination as to it merits a full whether Miller, Pa. consistent with Commonwealth (2005) (setting appellant A.2d 624 forth elements that must of the in order to by a evidence receive prove preponderance relief). If, remand, Appellant continues to Atkins-based choice, disagreement strategic may with counsels’ he express provides: Hybrid Representation, 79. Rule 3304. litigant attorney represented Where an before Court and motion, filing petition, any litigant brief or other submits for matter, but forwarded type pleading in the it shall not be docketed counsel of record. Ellis, premised present Note: The rule is on Commonwealth v. (1993) distinguished and is to be from Pa. 626 A.2d 1137 litigants pro litigation. in se who are

Pa.R.A.P. 3304. Grazier, seek a Commonwealth v. hearing pursuant 9, 713 A.2d 81 as to his competency self-represent.80 Claim 8. Whether is Entitled to a New Sen- tencing Hearing Because the Court Excused a Ju- Expressing only Objection ror for a General Penalty, Death Witherspoon Violation of v. Illi- nois and Whether Counsel were Ineffective for Fail- ing Properly Litigate the Issue. second, third,

As with the fifth and issues raised Court, Appellant brief this did not raise this allegation in his amended PCRA petition, but instead included it in his Supplement “Petitioner’s and in Response Opposition to the Commonwealth’s Motion to Dismiss and in Reply Support his for to Atkins v. Virgi pursuant Motion Relief nia,” filed on Also, November 2003. previ as with those issues, ous the Commonwealth asserts that allegation this has been for waived failure to it in include a court approved supplement/amendment. Commonwealth’s brief at 82 Reid, 484; Elliott, 173-74, 627 Pa. at A.3d at 622 Pa. at 430). 80 A.3d at

Appellant point does not to the location the record where the PCRA court him granted permission to supplement/amend his for request post-conviction and, relief to claim, include this issues, as with the prior he does not dispute that he did not permission obtain his petition amend PCRA but instead 2, 2015, asserts via his February reply brief he was prevented from curing this deficiency by the PCRA court’s failure to provide proper Rule 909 For notice. the reasons course, alternative, may, Of 80. in the decide that it would be Appellant post-conviction best for and his if interests counsel were to personal request adhere to his to discontinue the claim. Such Atkins Appellant adherence would not constitute ineffective assistance unless incompetent is to make such a decision claim and the is colorable. any incompetence, Confronted with indicia counsel would be re- full, quired request comprehensive, probing competency and hear- ing may in which the court ascertain whether understands withdrawing the consequences nature of the claim he is and the of its withdrawal. that this issues, we find regard previous expressed for review. not our preserved issue has been is Belief Because Petitioner Entitled Claim Whether Penalty Improper Guilt of the Prosecutor’s Arguments Inef- Counsel were Whether Phase Litigate Failing these Issues. fective prosecution sought asserts that by “urging jury passions prejudices inflame jury’s including prior on irrelevant its verdict factors” base and, future, to commit crimes in the and proclivity bad acts for to a call ven hearing, by resorting blatant penalty addressing standard at 74. Our geance. Appellant’s brief misconduct is as follows: allegations prosecutorial that, phase, where the during penalty is It well settled prosecutor no longer applies, of innocence presumption comment on may properly afforded latitude reasonable aby prosecu- flair. Comments with oratorical the evidence their reversible error unless unavoid- tor constitute do forming their minds jury, to prejudice effect was able such hostility toward defendant fixed bias and objectively and render a weigh could not the evidence they penalty trae determination.

[**] ^[*] in must evaluated by prosecutor made

[R]emarks they closing argu- occur. [in context in Furthermore which ment], may fairly respond points made prosecutor closing. the defense

[Wjithin court, the trial bounds enforced reasonable impassioned license and employ oratorical prosecutor may penalty. for the death reference argument arguing While avoided, note that mur- should be we irrelevant matters or irrelevancies in a simply props der victims are not prosecution, and innocuous references victims murder necessarily prejudicial. and their are families Freeman, Commonwealth v. Pa. 408-09, 827 A.2d (2003) (internal 413, 415 citations quotation marks omit- ted).

Specifically, during guilt summation, its trial the prosecution the following: offered

PROSECUTION: how many prior of nasty, [A]nd incidents malicious, violent against acts this daughter you woman’s do about, PCP, have hear non angel dust, quote, unquote, induced you recognize before this what case is all about? Objection. DEFENSE:

COURT: Overruled. N.T. guilt at 84. phase challenge, however, This 2/14/96 waived, as PCRA petition directed the present 302(A) challenge only (Issues to his sentence. See Pa.R.A.P. not raised in the court lower are waived cannot be raised Lambert, the first time on appeal); Commonwealth (2001). 346, 361, Pa.

Appellant also prosecution’s asserts summation in Appellant’s penalty trial improperly jury directed the to show him no mercy in its deliberations:

PROSECUTION: there is no really your [I]f doubt mind that the aggravating circumstances in this all right case are here mitigation brutal, senseless, and there is no in this horrible killing, then follow the give Mr. Mason the law same mercy gave he Iona Jeffries. at 114. Chmiel,

In 333, 458, Commonwealth v. Pa. 1111, 1184-85 (2011), A.3d this upheld virtually Court identi cal penalty-phase as appropriate appeal summation an for the death if penalty jury aggravating determines that circum outweigh circumstances, mitigating stances that is the because only here, jury penalty Moreover, issue before the in a phase. Chmiel, in as the trial court expressly otherwise cautioned in its jury instructions that nor passion neither prejudice should influence its or way decision one the other. N.T. presumed 140. Juries are to follow such instruc Clvmiel, discern no for Accordingly, we basis supra.

tions. on this claim. relief Discovery. Appellant is Entitled

Claim Whether Pennsylva- next that he is entitled under Appellant submits 902(E)(2)81 of discovery nia of Criminal Procedure Rule case, as, contends, he the. 911 calls this tapes actual of the of the portions tape indicated that transcript provided he was Discovery Appellant’s brief at 80. were “unreadable.” accuracy is needed to tapes, argues, he substantiate also that he is transcription. contends entitled Appellant autopsy a forensic discovery copies photographs show given whether a “can make determinations about expert, who or at 81. rage killing not[.]” homicide is a brief request autopsy to the for Initially, respect fails to so much as indicate whether photographs, critical evidence—let purportedly trial counsel such requested find may us to where the record we alone direct ap address whether counsel on direct request—nor does he ruling a trial asserting raised a claim error with court peal such, request. trial As we know wheth denying counsel’s or, instead, previously preserved er the issue was waived true, If sake of litigated. assuming the former asserts, was, that the evidence as now argument then it was sentencing, critical to a fair trial and incumbent present to couch the claim within an ineffec upon Appellant this, prior Having tive assistance of counsel claim. failed do McGill, 574 we find the issue waived. See Commonwealth v. (holding layered ineffectiveness Pa. claim); 42 preserve claim is an waived required otherwise 9544(b) § that an issue is under the (providing Pa.C.S. waived “if have raised it but failed to do so petitioner PCRA the could review, trial, trial, during unitary appeal before proceeding.”) See also Common- postconviction state prior 902(E)(2) provides petition counseled in a 81. Rule the first "[o]n case, discovery any stage penalty permitted at of the no shall be death showing good proceedings, except upon cause.” leave of court after a 902(E)(2). Pa.R.Crim.P.

479 Ragan, 106, (1999). wealth 560 116, 390, v. Pa. 743 A.2d 395 If, alternative, in the the claim as raised herein previously was it litigated, cognizable then is under the PCRA. See 42 9543(a)(3) §§ 9544(a)(2); Pa.C.S. v. Spotz, Commonwealth 45, 18 610 Pa. at A.3d

Notwithstanding the claim preservation problem, we find that Appellant fails demonstrate that showing he made a of good cause for the court grant PCRA discovery re- In quests. argument, his provides he neither a contextual nor a specific that explanation offered the PCRA court as to what purpose may be by discovery served the actual 911 tapes, say other than to they may “provide him with informa- tion this case.” Appellant’s about brief at 80. As for his request for autopsy photos, he fails to develop cursory claim that experts “[forensic can make determinations [from autopsy photographs] given about whether a homicide rage or not” in killing any meaningful way. Appellant’s brief at 81. No discussion regarding authority may ensues exist on this pronouncement, broad nor is any attempt there prospective relate such evidence to the balance evidence admitted at trial on the of specific intent to We element kill. find this claim undeveloped waived. See Commonwealth v. Walter, 392, 600 Pa. (holding A.2d claims them). to develop waived failure Claim 11. Whether is Entitled to Relief From His Conviction and Sentence Because of the Cumu- lative Effect of the Errors. contends, issue, this cumulative effect errors committed the trial court and trial counsel’s prevented jury hearing

ineffectiveness from important evidence to making guilt phase relevant its sentencing determinations. The Commonwealth responds this Court has stated that “no previously may number of claims failed if collectively they attain merit not do individually.” could so Tedford, at 56. “multiple [trial counsel] instances deficient

Where prejudice found, properly the assessment performance are upon Commonwealth John may premised cumulation.” (2009). son, 345, 966 A.2d Because we all of claims meritless have deemed ineffectiveness effect thus, no cumulative and, prejudice, prejudicial without Thomas, Pa. See Commonwealth v. could have attained. (2012). This claim fails. 500, 44 A.3d six, through Accordingly, respect issues one eleven, of PCRA court. we affirm the order the eight through court for seven, we the PCRA respect issue remand With this decision. Jurisdiction further consistent with proceedings is relinquished. of this not in the

Justice EAKIN did decision participate case. join TODD the opinion. BAER and

Justices concurring dissenting files a Chief Justice SAYLOR opinion. SAYLOR, concurring dissenting.

Chief Justice guilt phase dissenting I in the result to the while concur as to penalty. as case, I this to close sentencing aspect,

As to the find be a in of the light precedent establishing parame the particularly in On representation penalty a trial. ters sufficient hand, evi Appellant’s presenting one did succeed of type of disability, dence borderline intellectual of Supreme Court the United has States evidence which very impact capital penalty may observed well deliberations. 302, 319, 109 2934, 2947, 492 Penry Lynaugh, See v. U.S. S.Ct. (1989) (explaining that “evidence about L.Ed.2d of background defendant’s and character relevant because belief, this who long by society, held defendants disadvantaged that are to a commit criminal acts attributable may less problems, or to and mental background, emotional (quoting no such than who have culpable defendants excuse” Brown, 538, 545, U.S. 107 S.Ct. California (1987) J., L.Ed.2d 934 (O’Connor, concurring))); accord Taylor, 362, 398, Williams v. 1495, 1515, U.S. 120 S.Ct. 146 L.Ed.2d 389 (commenting reality “the that [the retarded,’ mentally might defendant] was ‘borderline well have jury’s appraisal influenced the his moral culpability.”). On however, hand, the other it appears this evidence could have developed, been better there was substantial quantity mitigation. Further, other available upon my record, I review find that adept counsel was presenting type of context for the evidence that was adduced jurors. which resonate with might

For example, remarks, his closing rather than focusing closely upon impact disability intellectual upon culpability, his moral personal counsel ruminated on his see, role in defending against sentence, N.T., a death e.g., Feb. 114-16; lengthy portrayal offered his own experience boy childhood as depicted impaired, with a who he 116-118; see id. transitioned discordantly somewhat to a theme of “living hell” he first abstractly which ascribed to his life, jury client’s then relegate entreated his client imposing death, 118-121; a life sentence than rather see id. death-qualified and stood in front of a jury draw attempting to comparison modern-day capital proceedings between trials, Salem witch see Only id. 122. few short and disjointed somewhat from passages closing upon touched mitigation the actual developed evidence on the record. See 118-19, 125-26. shortcomings, such in light id. Given case, of the of availability developed a more I mitigation find the representation to have sufficiently been that a deficient penalty proceeding new implicated. is Commonwealth v. Cf. Collins, 45, 75-78, 564, (2005).1 888 A.2d 582-84 Finally, I with respectfully differ the majority’s continued approval prosecutorial entreaties sentencing ju- to capital ries to show mercy the same as shown to defendants their victims. Daniels, Accord Commonwealth v. Pa. Obviously, 1. the final resolution of the Atkins matter on remand would necessity on proceeding. bear for such a J., (Saylor, concurring and practice “such is the concern that

dissenting) (expressing plain govern- terms fundamentally inconsistent scheme, designed permit punish- which ing statutory moral rendering reasoned only upon of death ment same lawless terms made judgments, decisions committed”). are which murders

130A.3d Pennsylvania, Appellee COMMONWEALTH VANDIVNER, Appellant. James Pennsylvania. Supreme Court Feb. 2015. Submitted Dec. Decided The Commonwealth notes N.T. testified, in completely incompatible a manner Tepper himself defense, that actions capacity awith diminished form crime that he was to near the of the revealed able time 190-191).39 10/25/11, at (citing an intent to kill. Id. N.T. nothing to to Appellant observes cites The Commonwealth regard in this would Tepper’s opinion that Dr. have indicate additional information any had he reviewed of the changed Thus, counsel for Id.40 the failing provide. faults Appellant asserts, appropriately upon trial counsel relied Commonwealth obligated not out Tepper’s opinion Dr. and was seek addi they provide in the that would more experts hope tional supra; at 22 Common opinion. (citing Bracey, favorable Lewis, (2000)). 240, 244, 907, 909 743 A.2d wealth information conclude that because the contained We have by Appellant in the additional records cited would been Appellant’s lifelong of the merely cumulative evidence at trial testi struggle drugs, presented through own brother, Kevin, mony and that his mother and trial has failed to that counsel’s failure obtain show Hanible, 612 Pa. at was unreasonable. See additional records (Trial at 449 counsel cannot be deemed ineffective of that failing for additional evidence cumulative present from already presented). Similarly, proposed testimony trial, above, during penalty explained phase 38. As noted provide helpful guilt phase Tepper Dr. had indicated he could not that during hearing, testimony. then this the PCRA Counsel reiterated help during Tepper him he could not when he testified that Dr. told that 12-13; guilt at phase of trial. N.T. N.T. 50. 2/17/96 10/25/11 hearing Tepper light Appellant’s 39. Dr. testified at the PCRA that crime, Tepper opine near the time of the Dr. could not actions specific unable form to kill and instead was intent intents, agreed Appellant was "able to form whether it’s certain killing getting locations.” N.T. 190-91. 10/25/11 response Appellant’s suggestion In unreasonable for that it was explanation why Tepper the PCRAcourt to credit trial counsel’s Dr. testify guilt phase, not at the as it was not made in an called to proceeding, Appellant’s brief at the Commonwealth adversarial challenge accuracy Appellant does of trial coun- counters that testimony explanation PCRA sel’s and cites to trial counsel’s at the hearing confirming during penalty phase. made statement 50, 190-191). at 23 N.T. Commonwealth’s brief Brian would Mason have been cumulative the evidence already presented. Additionally, prevail on a claim that trial counsel was for failing witness, ineffective to present a (in the defendant must demonstrate addition to the existence of the witness) witness and counsel’s awareness of that willing the witness was and able to cooperate behalf of the

Notes

notes there colloquy waiving mitigating to” before evidence. Id. at right 11). Puksar, n. n. 951 (citing A.2d maintains that even circumstances The Commonwealth not, colloquy required, colloquy where a does defective itself, involuntary. or unknowing that the waiver was establish 172, 189, 941 Mallory, 596 Pa. (citing Id. Commonwealth v. 50-51, (2008)); at 263. Spotz, Pa. A.3d A.2d reasons, Thus, assuming counsel had the Commonwealth even objection an to the manner which was preserved claim, contention any that permitted withdraw Atkins involuntary Appellant’s withdrawal rendered unknow was of a more detailed is meritless. ing by colloquy the lack com- also assails as waived counsel’s The Commonwealth competency hearing required, observing that a plaint requested counsel never such hearing. Id. at 77-78 Fletcher, (defendant 986 A.2d at 778 & n. 24 claim waived incompetence motions)). waive for post-trial Addi- tionally, the suggests Commonwealth even if a hearing had been requested it granted would in light have been the questionable of incompetence” “indicia counsel, offered by counsels’ to identify failure any expert opinion is, fact, incompetent, demeanor and actions over lengthy course trial proceed- the PCRA

Case Details

Case Name: Commonwealth v. Mason, L., Aplt

Court Name: Supreme Court of Pennsylvania

Date Published: Dec 29, 2015

Citation: 130 A.3d 601

Docket Number: 676 CAP

Court Abbreviation: Pa.