Commonwealth v. Rainey

claims for affirmative At in the context of rule. least evidence remedies equitable as those monetary damages, opposed restitution, Judge I support therefore as rescission and such determination. summary judgment Wettick’s need note, Toy Ms. type alleged As a final fraud has redress, as the Insurance Commissioner not go without take conduct and to such asserted investigate authority under the Unfair Insurance remedial measures appropriate 22, 1974, No. as P.L. See July Act. Act of Practices amended, §§ 40 P.S. 1171.1-1171.15. dissenting joins concurring

Justice CASTILLE opinion.

928A.2d 215 Appellee Pennsylvania, COMMONWEALTH RAINEY, Appellant. Michael Pennsylvania. Supreme Court May 2006. Submitted July Decided Wiseman, Ñolas, Horatio Billy Philadelphia,

Michael appellant, Rainey. Michael Burns, Jr., Philadelphia Dist. Attor-

Amy Zapp, Hugh J. Office, for of PA. ney’s appellee, Com. CAPPY, C.J., CASTILLE, SAYLOR, EAKIN,

BEFORE: BAER, FITZGERALD, BALDWIN and JJ.

OPINION Justice BAER.

Michael from an Order of the Rainey (Appellant) appeals (PCRA Court) Pleas of Philadelphia County Court Common dismissing his Petition for Relief pursuant Posb-Conviction (PCRA), §§ the Post Conviction Relief Act Pa.C.S. 9541- herein, the 9546. For the reasons set forth we vacate order of an evidentiary the PCRA court and remand this matter for on claim that trial counsel hearing Appellant’s was ineffective and mental investigate present background for and the phase this mitigation during penalty health evidence In respects, case. all other we affirm. capital History

Facts and Procedural for first- background Appellant’s The conviction underlying murder of a death sentence set degree imposition and 656 A.2d 1326 Rainey, forth in Commonwealth v. Pa. from the murder Briefly, conviction stems occurred on seventy-four-year-old Fleming, Carroll which 7, 1989,1 and his co-defendant Appellant December when Williams, “Eyeball” twenty, along with Alvin George age home, fourteen, rob at his age Fleming decided to Morgan, the victim previously had seen apparently because money. robbery, Appellant carrying preparation stating that he twenty-gauge shotgun, armed himself with a if Fleming required. shoot would home 11:00 that eve- Fleming’s p.m. en route to at While Williams group of three encountered Kevin Lewis. ning, debt, they going Lewis that were to collect and convinced automatic, an gun, offered Williams his .25 inoperative Lewis “as then Lewis said could be used a threat.” Lewis home, as the he proceeded Fleming’s three where watched from away, murder a short distance unfolding witnessed to hear the conversation and see what tran- enough close Williams, Morgan When and arrived at spired. Appellant, home, acted as lookout while Fleming’s Morgan loaded his proceeded porch. Appellant and Williams onto and on the door. no immediate shotgun Receiving knocked answer, in the then Fleming ap- kicked door. intruders porch. confronted the on his Williams peared, Fleming, pulled pointed handgun repeatedly gun Appellant, but the did not fire. this time trigger, who gun against behind the muzzle of his Fleming, placed fired, back him. Fleming’s killing opinion appeal on reflects murder occurred in 1. Our direct December, record, however, 1991. A reveals that review incorrect, December, as the murder occurred Williams, Morgan all arrested and Appellant, were Both charged Fleming’s Appellant with murder. and Williams to the gave police. Appellant statements December murder, on of together charges and Williams were tried conspiracy, robbery, possession criminal of an instrument of a crime, and firearms on The Common- carrying public streets. wealth introduced the of Lewis and eyewitness testimony Morgan, witnessing both of whom testified to the murder.2

The that from argued inception, plan Commonwealth its just hatched by Appellant Williams was not rob the victim, but also to Mil him if necessary. Appellant’s counsel victim, argued regardless that Mlled the if the who murder was committed the course of a robbery, Appellant could only murder, be of second-degree convicted see 18 Pa.C.S. 2502(b), § and if it was committed the course of a struggle during debt, the collection of a Appellant only could be found guilty murder, 2502(c). of third-degree § see 18 Pa.C.S.A. Defense proceeded to cast eyewitness doubt on the testimony of Morgan, Lewis and both of whom testified that Appellant Williams, was the shooter. As against evidence Commonwealth also introduced Williams’ redacted confession. jury The Appellant found guilty first-degree murder and related offenses.

During the penalty phase, the Commonwealth established the existence circumstance, of one aggravating that the mur- der had been committed during perpetration of a felony.3 The further stipulated eighteen years murder, old at the time of the and had no significant history of prior criminal convictions. The jury found three mitigating circumstances: the age Appellant crime; the time of the had no significant convictions; history prior criminal and the catchall miti- gator.4 The jury, finding that the aggravating circumstance offenses, Morgan pleaded guilty third-degree murder and related against Appellant and testified and Williams. 9711(d)(6). § 3. See 42 Pa.C.S. 9711(e)(1), (4) §§

4. See 42 Pa.C.S. circumstances, imposed mitigating the three outweighed of death.5 sentence mo trial, post-trial trial counsel filed

Following appear permitted withdraw subsequently tions and was Struttin, who, counsel, Mitchell ance. obtained new 28, 1993, motions post-trial filed supplemental September on issues, trial counsel’s ineffectiven including raising additional these hearing allegations held a on The trial court ess.6 trial hearing, the the Following testified. trial counsel motions, the sentence formally imposed and denied the court 24, March on Appellant’s affirmed conviction of death. We 220, Appellant’s peti 656 A.2d 1326. Rainey, 1995. Supreme to the States Court tion for certiorari United 4, 516 Rainey Pennsylvania, 1995. on December denied 1008, 116 562, 133 L.Ed.2d S.Ct. U.S. execution, course, entered a warrant

In due the Governor exhausted, 4, August on not yet as collateral review was but request- then 1995, stay a of execution. ordered we on petition filed a se PCRA pro counsel and change ed 27, replaced appellate 1995. New counsel December on relief post-conviction an amended petition and filed that an 17, requested Appellant subsequently 1996. October Defender the Post-Conviction attorney Pennsylvania from counsel. On to his newest replace Association be allowed 18, 1996, Corpus for Habeas and PCRA a Petition November court, about and confusion ensued sent to the PCRA relief was testimo- hearing After a attorney the of record. who was the Defender that counsel from the court ordered ny, PCRA of record. Appellant’s counsel designated be Association continuances, responded the Commonwealth After several 8, 1997, 11, August on 1997. On petition the PCRA June petition without Appellant’s court dismissed PCRA 5, 1998, the on October hearing. Appellant appealed, adopting arguments a short opinion court filed PCRA co-defendant, Williams, second-degree was convicted of Appellant's 5. imprisonment. to life murder sentenced through direct represent Appellant his Attorney continued to 6. Struttin appeal. On advanced in the Commonwealth’s motion dismiss. 2001, 28, to the court December we remanded case PCRA of the reason for the explanation and ordered a more detailed 271, Pa. disposition. Rainey, court’s Commonwealth v. Williams, (2001); A.2d 942 see v. (Craig) (2001) Pa.553, PCRA case (remanding where court motion to dis- adopted PCRA Commonwealth’s opinion setting independent miss as its without forth its reasoning). remand,

On Appellant supplemented original PCRA petition and leave to the issues for consider requested expand delayed ation before that court. The PCRA court any deci sion, directing Appellant request to make his to raise addition 2002, so, al issues to this He did on Court. and December we denied expand scope motion of remand. order, Commonwealth v. Rainey, per See curiam December Nevertheless, on per December we entered a curiam order granting Appellant’s request expand scope of remand to include a claim that he mentally impaired under the standards in Atkins v. Virgi established nia, 304, (2002) 2242, 536 122 U.S. S.Ct. 153 L.Ed.2d 335 (holding that the constitution the execution of men prohibits criminals). tally retarded v. Rainey, per See Commonwealth order, 31, curiam December denied leave to raise We any other issues. Id. 27, 2003, court,

On October to the PCRA Appellant wrote the District and his Attorney, waiving defense to an right evidentiary hearing. subsequently filed a counseled affidavit the court seeking PCRA with- with draw such waiver. After several continuances granted upon counsel, request the of both the District Attorney and defense 2004, 24, on June his Atkins claim. withdrew Pursuant to our remand order the directing PCRA court Williams, 553, opinion write an 566 Pa. (Craig) accord with 517, 26, opinion 782 A.2d the PCRA court an on July issued 2004, 8, 1997, of its order of support August dismissing Appellant’s petition. opinion, its court explained PCRA why all of Appellant’s previously litigated, claims were either

80 The case thus waived, under the PCRA.7 cognizable or not returned to this court. numerous sub-issues for issues with

Appellant raises twelve jurisdiction over note that we have Initially, review. we the denial of directly review because we Appellant’s petition 42 pursuant in death cases penalty relief post-conviction 9546(d). instant was filed Additionally, petition § Pa.C.S. 17, 1995, January to the prior in December of which was November, amendments to the effective date of the governed by previous Accordingly, petition PCRA. Jones, 384; (James) 876 A.2d of the version PCRA. See (2002); Bond, 588, 33, 819 A.2d v. 572 Pa. Commonwealth (1988). § 42 Pa.C.S. relief, our stan from the denial PCRA appeal

On ruling calls for us to determine whether dard review free of legal the record and supported by court is PCRA 384; (James) Jones, A.2d at error.

Breakiron, (2001); n. 4 Common 566 Pa. 1170 n. 3 wealth v. Strong, version prior relief under the eligible In order to be for PCRA statute, prove by prepon must plead derance of the evidence:

(1) of a crime under That the has been convicted petitioner and is: the laws of this Commonwealth (i) proba- currently serving imprisonment, a sentence crime; for the parole tion or (ii) of death for the execution of a sentence awaiting crime; or

(iii) before the expire a sentence must serving disputed sentence. may serving commence person (2) one or resulted from That the conviction or sentence following: more of the

(i) of or laws Pennsylvania A of the violation Constitution of or the Constitution the United of this Commonwealth agreed that the remand was 7. Both opinion in allowing to write an purpose of the court for the limited Appellant's petition. support prior of PCRA of its dismissal case, which, particular in the circumstances of the States that no truth-determining process so undermined adjudication guilt reliable of or innocence could have place. taken

(ii) which, of in the circum- Ineffective assistance case, stances of the so the truth- particular undermined adjudication guilt that no determining process reliable or taken innocence could have place.

(iii) A the circum- plea guilty unlawfully induced where stances make it the inducement caused an likely to plead guilty. individual

(iv) The improper obstruction Commonwealth officials of the a meritorious petitioner’s right appeal where issue existed appealable properly preserved and was the trial court.

(v) Constitution, A violation of the provisions law or treaties of the United States require which would granting of Federal habeas relief corpus pris- to a State oner.

(vi) The at the unavailability time of trial of exculpatory evidence that has become subsequently available and would changed have outcome of the trial if it had been introduced.

(vii) The of a imposition sentence than the greater lawful maximum.

(viii) A proceeding jurisdiction. a tribunal without (3) That allegation of error previously has not been litigated and one of the following applies:

(i) allegation The of error has not been waived.

(ii) If waived, allegation error has the alleged been error has resulted in the conviction or affirmance of sentence of an innocent individual.

(iii) If allegation waived, of error has been the waiver trial, of the allegation of error during pretrial, post-trial or direct appeal proceedings does not constitute a State procedural barring default Federal habeas corpus relief.

(4) the or litigate during That the failure to issue prior not the result or on direct could have been of appeal trial rational, or tactical decision counsel. any strategic by (1995). 9543(a)(l)-(4) § 42 Pa.C.S. highest

An issue if the previously litigated has been court in entitled to petitioner review appellate of on the the issue. right as a matter has ruled merits of Id. 9544(a)(2) 408, v. Pa. (1995); 541 Crawley, § Commonwealth 676, (1995). “if 678 A PCRA claim is 663 A.2d waived if it failed it and could have been raised petitioner to raise trial, trial, corpus on in a habeas appeal, before at the or conducted or a proceeding proceeding actually other subchapter.” initiated under this 42 prior proceeding actually 9544(b) (1995). Further, § relaxed rule Pa.C.S. waiver appeals to Common longer applicable pursuant no PCRA (1998) (“Hence Albrecht, 31, Pa. 720 wealth v. 554 A.2d 693 forth, upon will be excused petitioner’s only PCRA waiver of in waiving demonstration ineffectiveness counsel issue.”). (James) Jones, A.2d at (declining apply 876 384 Commonwealth v. appeal), Kemp, relaxed waiver a PCRA 1278, (2000) (same). 154, Therefore, 1285 Pa. 753 A.2d 562 claims that are any beyond power waived Jones, (James) 876 at 384. Court to review. A.2d several of ineffective allegations advances relating to both the guilt penalty assistance counsel claims evaluating of trial. of ineffective assistance phases counsel, presume we is effective. Common Rollins, (1999). 435, Pa. 441 wealth v. A.2d To this presumption, Appellant must establish three overcome First, underly that the factors. must demonstrate arguable Travag has merit. See v. ing claim Commonwealth (1995). lia; Second, Appellant Pa. establish counsel had no reasonable basis for his must or inaction. In determining action Id. whether counsel’s reasonable, there question action do whether were we pursued; courses of action which counsel could have superior rather, any counsel’s had rea- we examine decisions whether Rollins, 441; sonable basis. See 738 A.2d (Charles) Pierce, Pa.153, Finally, “Appellant must establish that he has been prejudiced ineffectiveness; burden, counsel’s in order to meet this he must that ‘but for show the act or omission in question, ” outcome of the been proceedings would have different.’ See Rollins, 357). 738 A.2d at 441 (quoting Travaglia, 661 A.2d at A claim of ineffectiveness be a may by showing denied that petitioner’s evidence fails to any meet of these prongs. Com- (Michael) Pierce, Pa.186, 203, monwealth v. 567 786 A.2d 221- (2001); Basemore, 258, 22 Commonwealth v. 560 Pa. 744 A.2d 717, Albrecht, (2000); (“If n. 738 23 720 A.2d 701 it is clear that Appellant has not demonstrated that or counsel’s act adversely omission proceedings, affected outcome of the the claim bemay dismissed on that basis alone and the court need not first determine whether the first and prongs second met.”). have been In the context of a PCRA proceeding, Appellant must establish that the ineffective assistance of “which, counsel of type in the circumstances of the case, particular so undermined the truth-determining process that no reliable adjudication of of guilt innocence could have place.” 9543(a)(2)(ii); (Michael) § taken 42 Pa.C.S. see also Pierce, 221-22; Kimball, 786 A.2d at Commonwealth v. 555 299, (1999).8 326, Pa. 724 A.2d 333

All allegations relating to trial stewardship counsel’s waived, are as they were not raised during post-trial or direct appellate 9544(b); § 42 proceedings. See Pa.C.S. Common D’Amato, 490, (2004). wealth v. 806, 579 Pa. 856 A.2d 812 Pierce, (Charles) 153, 973, 8. recognized 515 Pa. 527 A.2d this Court that the proper Strickland test was the test to evaluate ineffectiveness Pennsylvania claims raised under the Constitution. See Strickland v. 668, 2052, Washington, (1984). 466 U.S. 104 S.Ct. 80 L.Ed.2d 674 The recognized Pennsylvania's Third Circuit has likewise standard for assessing claims of materially counsel ineffectiveness is identical to 178, (3d Vaughn, Cir.2000). Strickland. Werts v. 228 F.3d 203-04 Although Pennsylvania test for ineffectiveness is the same as Strick- standard, two-part performance prejudice application land’s tripartite, by dividing Court has characterized the perform- test as i.e., parts, arguable ance element into two distinct merit and lack of (Aaron) Jones, Pa.112, reasonable basis. Commonwealth v. 571 811 (2002). A.2d 994 84 of trial ineffec- held that claims counsel’s

Although we have will no for the first time on collateral review tiveness raised Grant, waived, v. longer be deemed (2002), 48, 726, holding apply here does prior concluded Grant. appeal because direct Appellant’s ineffective analyze claims of will therefore We framework, under pre-Grant under the assistance counsel review of a cannot substantive merits petitioner which invoke assistance trial counsel claim of ineffective waived intervening assertion that all simply appending conclusory 'Amato, D to raise it. ineffective See were Rather, claim over the PCRA only A.2d at counsel’s ineffec appellate court is that of cognizance retains Rush, Pa. 838 A.2d tiveness. Commonwealth v. as present argument must therefore ineffectiveness, layer establishing prongs all three each each See Common attorney. the ineffectiveness standard for (2003) (“[I]n McGill, Pa. wealth raise and on a prevail order for a petitioner properly plead, present, claim, must and he layered ineffectiveness counsel) prove” in appellate (emphasis the ineffectiveness of Williams, (“PCRA at 525 counsel original); (Craig) must, briefs, develop, in undertake the pleadings and respect the nature the claim asserted possible, extent of with claim, to each facet of a ineffectiveness layered individual counsel.”). layered A including relates to appellate that which back to appellate claim of counsel’s ineffectiveness relates the counsel, the test for trial three-prong actions of trial so that ineffectiveness, satisfied, if the supplies arguable counsel’s claim of ineffectiveness. prong appellate merit of the counsel’s entirely Id. Because had been clear as to what this Court not required petitioner seeking plead prove is of a PCRA a ineffectiveness, claim of we indicated in layered McGill the further preference to remand to PCRA court for general has development petitioner in circumstances not where howev layered unnecessary, the claims. A remand properly er, post-conviction petitioner “thoroughly where the fails trial counsel prove” underlying allegation the that plead Amato, D 856 A.2d at was ineffective.

Discussion claims, Before the merits of we considering Appel- that argument must first address Commonwealth’s they lant’s claims are not under the PCRA because cognizable either or The previously litigated. are waived Commonwealth that his claims suggests analyze does whether but if he previously litigated, argues are waived or as were claims of trial court error on direct It further raising appeal. that in the instances that attacks argues prior few developed counsel’s he has not his stewardship, properly Specifically, Appel- claims. Commonwealth asserts of counsel boilerplate allegations lant’s ineffective assistance merit only underlying prong address of trial ineffectiveness basis and ignore completely reasonable (Charles) Pierce, prejudice prongs. See 527 A.2d at 975. careful in Upon consideration manner which claims, has and in presented light requirements precedent PCRA and this Court’s such re- interpreting we quirements, agree with two Appellant’s claims are not reviewable. For of our purposes review, do not presented, we examine the issues the order and, therefore, begin but will those that are with issues waived not reviewable.

I. Waived Claims The first of Appellant’s waived claims is his assertion that the Commonwealth exercised its strikes in a peremptory racially discriminatory manner violation of Batson v. Ken tucky, 476 U.S. 106 S.Ct. 90 L.Ed.2d 69 In a second, issue, separate Appellant asserts that his sentence is of racial product discrimination. Not did only not raise these appeal, claims on direct he not raise but did in them his PCRA petition. They are therefore waived. (Rasheed) Williams, Pa.304, Commonwealth v. 587 1060, (2006); Wallace, 397, v. (1999) 916, A.2d 921 n. 5 (holding that issues not raised in time on appeal); for first cannot be considered petition PCRA 9544(b).9 also 42 Pa.C.S. § see Redaction

II. of co- the admission of claims involve Appellant’s Several part as of Com- redacted confession defendant Williams’ noted, joint trial. As at against case Williams monwealth’s trial, redacted and confession was Williams’ jury The instructed the “X.” court replaced name was with only against admissible Williams. the statement was States, 123, 88 S.Ct. Bruton United U.S. (1968), is 1620, held that defendant 20 L.Ed.2d 476 Court Clause rights of his under Confrontation deprived co-defendant’s con non-testifying Amendment his Sixth when in the crime is introduced participant him as a naming fession trial, jury risk that the high there is a joint at their because jury the defendant. A against the statement consider will in following of a court’s ordinarily presumed capable to be only. one defendant against to consider evidence struction Bruton, however, rule, holding to this exception created an that a new trial is great is so possibility prejudice jury instructs the specifically the court required even where . the co-defendant: only against use the statement that the jury in the risk will there are some contexts which cannot, and the not, great, instructions is so or follow defendant, that the of failure so vital to consequences cannot jury human limitations of the practical system here, where the presented a context is ignored. be Such a code extrajudicial statements of incriminating powerfully fendant, side-by-side with the defen- who stands accused the first time before the PCRA Appellant raised his Batson claim for 9. Because, July supplement, 2002. as post-remand filed court noted, court was for the limited previously our remand to the PCRA opinion support of its allowing the court to write an purpose relief, Appellant permitted to raise new claims. Our was not denial the Atkins claim did grant permission expand the issues to include order, Rainey, per any issues. See curiam not extend to other unrelated attempt accept his to amend his PCRA 2002. We do not December Rainey, following order of December petition our remand Pa.

87 dant, joint in a trial. deliberately spread jury are before the devastating are the incriminations to the defendant only Not The unreliabil- credibility inevitably suspect.... but their ity intolerably compounded of such evidence is when here, and cannot be alleged accomplice, testify as does It by against tested cross-examination. was such threats to a fair trial the Confrontation Clause was directed. 135-36, Id. at 88 S.Ct. 1620. Bruton,

Following approved this Court of redaction as “an appropriate method of protecting rights defendant’s under the Johnson, 410, Bruton decision.” v. Pa. Commonwealth 474 859, (1977) (“[i]f A.2d a confession can be so edited that it retains its in no integrity yet way narrative refers defendant, then of it use does not violate the principles Bnuton.”). As most evidentiary questions, with substantial deference must be afforded to the trial court in this regard. Wharton, 127, 710, Commonwealth v. statements, our Following approval of redacted some courts adopted position that where a co-defendant’s redacted confession nevertheless refers to the defendant “contextual by implication,” the redacted confession cannot be introduced in a joint Wharton, trial. 607 A.2d at Supreme 717. The United Marsh, Court addressed this argument Richardson v. (1987), U.S. 107 S.Ct. 95 L.Ed.2d 176 the co- where defendant’s confession was redacted to all reference to remove the defendant and the trial court instructed the jury to consider the only against confession the co-defendant who that, made the statement. The argued despite defendant redaction, admission of the statement her violated confronta- tion rights because it her in the implicated crime when linked other rejected with evidence. The Court expressly theory of contextual implication, distinguishing between those state- ments that expressly implicate those that defendant and become incriminating only when linked to other evidence properly introduced at trial. Id. at 107 S.Ct. 1702. When linkage with other evidence required implicate

defendant, proper limiting that a instruction Court held to satisfy sufficient Bruton. as theory rejected implication have also the contextual

We rule, likely make prohibition that such a would finding blanket Wharton, 607 all statements co-defendants inadmissible. Chestnut, 717; Pa. acknowledged this rejecting theory, A.2d 603 we where a codefendant’s re- prejudice “there is the of danger the ‘contextual confession refers to defendant dacted which trial,” reasoned that: joint in a but implication’ introduced court, the and the this trial review- danger merely requires interests, i.e., court, preju- the potential balance the ing of the to the the value probative dice defendant versus evidence, the of the the possibility minimizing prejudice, conducting joint justice system benefits to the criminal of trials.

Wharton, 607 A.2d at 717. mind, asser- in we Appellant’s these review principles

With statement, redacted to tions that the admission of Williams’ “X,” his rights with violated Appellant references to replace the the of States Constitu- under Confrontation Clause United found Appel- in Bruton. The PCRA court tion as articulated litigated with- arguments previously lant’s Bruton-based out merit. arguments it is to deconstruct

Although Appellant’s difficult composed in it that his contention is of regard, appears his the merits of position After on subparts. presenting seven that he is entitled relief point, argues each objected trial to admission the because counsel should have specific to each these incidents. redacted statement and also that have chal- appellate should argues discussion, For each lenged appeal. each incident on ease be addressed turn. sub-arguments seven will First, general against launches a attack statement, replaced because his name was use of redacted deletion, grounds an the letter “X.” Appellant obvious with confession on against admission of redacted argument Supreme Gray decision United States Court in 185, 192, 1151, Maryland, 528 U.S. 118 S.Ct. 140 L.Ed.2d (1998), which followed the trial this case held that “[rjedactions replace that an blank simply name with obvious space or a word other symbol such as ‘deleted’ or or similarly obvious indications of ... alteration leave statements that, class, considered as a so closely resemble Bruton’s that, in view, unredacted statements our require law must result.” same Because Williams’ sub- redacted statement name, for Appellant’s stituted “X” relief Appellant argues that is appropriate. held Gray represents

We have a new rule of law cases, be should not applied retroactively Appel- such as lant’s, See, were prior tried to its Com- e.g., issuance. Uderra, monwealth v. Pa. 862 A.2d 89 n. 13 (2004); Lopez, Commonwealth v. (1999). Therefore,

500 n. 18 Appellant is not to the entitled Gray Further, benefit of in this PCRA appeal.

argument that trial object counsel was ineffective to of admission the redacted statement is waived as it not during raised post-trial or direct appellate proceedings in this D’Amato, pre-Gnmi 9544(b); § case.10 42 See Pa.C.S. A.2d at 812.

The second of subpart Appellant’s argument is based Walsh, who, on testimony the of reading Detective the while redacted statement to jury, the broke the redaction by specifi cally referring Appellant to as “Mike.” On direct we appeal, Moreover, we have held that counsel be cannot deemed ineffective 10. Gribble, anticipate Gray for to the decision. explained appeal, 11. As we on direct when Detective Walsh read the statement, exchange following occurred: Q. you any "Have had contact with 'X' since murder?” “Yeah, murder, house, days A. about three after the I saw 'X' at his in, just and I told him say to turn himself he but said not mother, anything. I even told his too. I told her that ‘X’ shot had somebody. open She just wouldn't me. door for She looked out the window.” Q. anyone you there you "Was with when had this conversation with ‘X'?” assistance counsel claim of ineffective rejected Appellant’s state- reading Walsh’s Williams’ regard Detective with Therefore, the extent 1332.12 Rainey, 656 A.2d at ment. testimony sup- relies on Detective Walsh’s that violation, is previ- of Bruton a such issue argument his port 9543(a). § litigated. See Pa.C.S. ously prosecutor’s closing sub-argument third is based on The rejected argument contex- specifically argument.13 We Rainey, A.2d at 1332.14 on direct implication appeal. tual Williams, male, brother-in-law, 23. "My name Mike black A. his movie, Capitol.” that Philly lives around He in West Q.' any you "Did Mike other time since the murder?” see Objection, your Mr. Honor. O'Donnell: Q. Detective, ma[y] type read [sic]. review You have that. you any "Did 'X' other time the murder?” A. Excuse me. see since N.T., 12/23/91, Rainey, While the at 193-94. See 1331-32. “ Williams,” argues 'X' is refers to "Mike statement i.e., 'Mike,' Rainey.” Appellant's Brief at plainly presented as Michael 18. did, fact, so, object doing trial to this we noted that 12. Rainey, We testimony requested 656 A.2d at 1332. a mistrial. and simply not ineffective because the trial that trial counsel was found Further, arguments. it accept Id. we noted that refused to court deny motion mistrial because for the trial court to error immediately by the cured remark was de minimis Detective Walsh’s court, implicate explicitly did not context the statement trial overwhelming identifying already Appellant, existed evidence and there n. Appellant as the killer. Id. at 5. testimony improperly Morgan's prosecutor allegedly referenced The improper during arguments, an use closing asserts was against Appellant: of Williams' statement Duffy then George Detective Walsh and Detec- Williams told the go they somebody up” and then X Piree said "Let's stick tive too[;] boy Eyeball young did that left me and went outside[;] his house changed he "X” and he had his coat. When then came out long wearing leather coat corroborative of came out he was black Morgan I rifle he it like down his testified to. saw the had what Alvin leg. pants N.T., 12/26/91, at 63. so, doing objected this incident and we noted trial counsel to 14. In that Rainey, Again, we again requested 656 A.2d at 1332. found a mistrial. by did not and the trial court err that trial counsel was not ineffective facially not denying for the remark did the motion mistrial because any incrimination implicate inferential or contextual Appellant, and Appellant's a violation of a redacted statement did not constitute from portion to this Therefore, claim pertaining Appellant’s litigated argument previously closing prosecutor’s 9543(a). § 42 Pa.C.S. the PCRA. See under cognizable of subparts through seventh The fourth of contextual theory on the of is based each which argument, claim of rejected for the same reasons we fail implication, closing argu prosecutor’s based on the implication contextual that he demonstrate cannot Appellant on direct appeal: ment object to each failure to counsel’s prejudiced by trial was these four other that when argues Appellant incident. specific trial, it became at presented were pieces of evidence specific statem redacted “X” referred to that he obvious ent.15 are ineffectiveness noted, of trial counsel

As all claims 9544(b); D’Amato, A.2d at 812. § 42 Pa.C.S. See waived. however, develop- to remand for further not necessary, It is Appel- claims of ineffectiveness because layered ment of these by trial prejudiced that he was lant cannot demonstrate such that “but object to these incidents counsel’s failure Richardson, Id., 107 S.Ct. right (citing 481 U.S. to confrontation. 176). any Finally, prejudice was cured we noted that 95 L.Ed.2d Rainey, at 1332 n. 5. the trial court's instructions. Lewis, testimony subpart Appellant's fourth is based on that he Appellant signaled that he was “X”: Lewis testified asserts going say Appellant he were to collect a debt heard Williams complains gun. subpart, Appellant taking were Lewis’ In the fifth him not Morgan's testimony and Williams had asked argues subpart, Appellant that the testify against In the them. sixth against Appellant in prosecutor improperly used the redacted statement jury that the opening argument prosecutor when the informed the robbery Appellant planned the would show that Williams and evidence together Appellant’s home: point George a later [Appellant] Williams at You'll hear how —how 7, 1989, [Appel- evening came over to the home of December porch front you on the will hear that there was discussion lant] and George [Appellant] about [Appellant]'s Williams and home between robbing 'the old man down street.’ N.T., 12/20/91, only argues evidence that that the at 60. robbing was Williams' the victim and Williams discussed argues subpart, Appellant Finally, police. in the seventh statement plan Appellant hatched a to rob closing, prosecutor said that that in regarding argues only evidence Again, Appellant that the the victim. police. victim Williams’ statement to rob the conversation the act or omission in the outcome of the question, proceed- Rollins, have been different.” A.2d at 441 ings would See 357). (quoting Travaglia, appeal, 661 A.2d at On direct contextual based rejecting Appellant’s implication argument on there prosecutor’s closing argument, the we noted that already overwhelming identifying Appellant existed evidence as the Rainey, Specifically, victim’s killer. 656 A.2d at 1332. the at trial Commonwealth introduced evidence from Lewis to Williams, the effect Appellant, that he encountered and Mor- gan way on their to the victim’s house. Williams told Lewis debt, that he going provided was to collect a and Lewis Williams with an the inoperable gun. Through testimony Morgan, jury Appellant the heard that saw the victim with earlier in money day. evening, Morgan present, That with Appellant brought began playing out and with a sawed-off that he to shotgun, prepared stated shoot someone. evening Later that came onto the front Appellant porch with Williams, in his gun pant leg. Appellant, Morgan house, then proceeded Morgan victim’s where saw load it. further gun Morgan withdraw kill witnessing Appellant testified shoot and the victim. on the against Appellant, Based evidence admitted we do not objected believe had counsel to each instance of which he presently the outcome of the trial been complains, would have Rollins, 441; different.16 738 A.2d at 661 A.2d at Travaglia, 357.

III. Severance Appellant’s next substantive claim is that trial counsel ineffectively failed to move to sever trial pretrial trial, se, from his co-defendant’s. Appellant, acting pro Before requested that the court his trial from that of trial sever co-defendant Williams. Counsel did assist with motion, hearing this motion. At a on the testified that he him only requested severance because Williams told Moreover, noted, rejected Supreme expressly has as Court 16. theory regard 200, implication, appeal of contextual as did on direct we Richardson, prosecutor’s closing argument. 481 U.S. 176; Rainey, S.Ct. 95 L.Ed.2d to, separate care had trials. they and that he did not whether Mid-trial, requested trial counsel The motion was denied. severance, again the trial court denied. for claims that trial counsel ineffective

Appellant now Williams’ his trial from before trial failing to move to sever litigate and that counsel was ineffective appellate that Specifically, Appellant argues on direct appeal. this issue solely respon- defense was that was while Williams’ murder, for the maintained his innocence.17 sible Thus, the prejudiced by asserts that he was eviden- of his co-defendant. tiary conflict his defense and that between to of his individual support argument, Appellant points of that he clear that the two pieces evidence claims makes blaming killing. defendants each other for the were rejected The this claim of ineffective assistance PCRA court of counsel on trial counsel’s failure to move to sever based trial, baldly that finding although Appellant of prejudiced by joint claimed to been the trial because have defense, that allege his co-defendant’s inconsistent he did joint admitted at the trial unreliable or false. any evidence was The court this not a claim PCRA held meritorious under PCRA, that the requires petitioner allege the to reliability such as to call into the prejudice question jury’s verdict. noted, allegations relating

As all to trial counsel’s steward waived, ship they during post-trial are as were not raised or 9544(b); § appellate proceedings. direct See Pa.C.S. D’Amato, 856 A.2d at 812. The the only claim over which cognizance PCRA court retains is that of counsel’s appellate Rush, layered ineffectiveness. 838 A.2d at 656. The claim of appellate counsel’s ineffectiveness relates back to the actions trial, trial request severance before so ineffectiveness, that the for trial if three-prong test counsel’s Presumably, Appellant 17. means that he his innocence of maintained motions, first-degree hearing post-trial murder. At the on trial counsel trial, throughout Appellant's testified that he had conceded involve- Fleming argued ment homicide and instead that the facts degree. established no more than murder in the second

satisfied, the claim of prong merit supplies arguable McGill, 832 A.2d at ineffectiveness. See counsel’s appellate it is clear stewardship, trial counsel’s Examining Where, here, crimes charged claim fails. as this facts and virtual each defendant arise out of the same against defendants, to both applicable all of the same evidence is ly Court, Court, Supreme as as the United States have well encourage joint trials to conserve preference indicated resources, fairness to judicial economy, and enhance promote the defendants: and the fairness of the impair efficiency

It would both ... justice prosecutors criminal system require the same evidence bring separate proceedings, presenting repeat again again, requiring victims witnesses trauma) (and testifying, the inconvenience sometimes the last tried defendants who have randomly favoring case beforehand. advantage knowing prosecution’s justice by trials serve the interests of avoid- generally Joint enabling and more accurate assess- ing inconsistent verdicts ment of culpability. relative Travers, 362, 845, Pa. 847 v. 564 768

Commonwealth 1702). (2001) Richardson, 210, 481 at 107 (quoting U.S. S.Ct. a the burden is on defendants to “show preference, Given rather than mere potential prejudice speculation.” real Rivera, Gribble, 462; at v. 863 A.2d see Commonwealth Chester, 289, 131, (2001); v. Pa. 773 A.2d Commonwealth (1991); 583. 587 A.2d 1372-73 Pa.R.Crim.P. granted only trials of co-defendants should be “Separate antagonistic point of each are to the where where defenses joint are and a trial such individual differences irreconcilable Lambert, in prejudice.” would result Commonwealth Although antagonistic Pa. 603 A.2d are a factor for a trial court to consider in determin defenses sever, to “the fact that defen grant a motion ing whether took or the conflicting place, dants have versions what it, a rather they participated extent to which reason for the truth be more against joint may easily than a trial because 18 Gribble, if together.” all are tried determined 1373). Chester, A.2d at (quoting has failed to court that agree Appellant with the PCRA We counsel’s failure prejudiced by that he was demonstrate noted on direct for severance trial. As we move before as the Appellant evidence identified appeal, overwhelming 1332. Rainey, Specifically, killer. 656 A.2d at victim’s from to the introduced evidence at trial Lewis Williams, Morgan and Appellant, effect that he encountered that their house. told Lewis way on to the victim’s Williams debt, provided Williams going he was to collect Lewis an Lewis then from a short inoperable gun. with watched kicked in the victim’s door distance as and Williams Appellant investigate. he came to and shot victim when that Through testimony, jury Appellant heard Morgan’s That money day. evening, earlier in the saw victim with Morgan Appellant brought began play- out and present, with that he ing shotgun, prepared with sawed-off stated necessary. evening, Appellant to shoot someone if Later that in his porch gun pants leg. came onto the front with the Williams, then to the Appellant, Morgan proceeded vic- house, gun tim’s where saw withdraw the Morgan Appellant witnessing and load it. further testified to Morgan Appellant kill shoot and the victim.

The that trial counsel only way we could now hold be request ineffective for severance would to deter- prejudiced by mine was so counsel’s failure clear, asserts, We note that it is not as defense was assertions, antagonistic Contrary Appellant's to Williams'. the rec- ord reveals that the evidence adduced at trial did conflict concern- ing casting the roles of each was built defendant. Williams' defense on whereas, shooter, although Appellant as the did not admit to victim, being shooting premised his defense was on murder antag- third-degree, first-degree. being second-or rather than Far from onistic, actually agreement. these defenses were in See Commonwealth Rivera, (2001) (finding v. 565 Pa. 773 A.2d that the not in so as to defendant's and co-defendant's accounts were conflict prosecution first-degree warrant severance in for murder and related agreed offenses where all three co-defendants in their statements that shooter, only plan had defendant was the and that their been to rob the victims, them). not to kill one of question, in for the act or omission regard that “but been different.” See have proceedings of the would

outcome 357). at Rollins, 661 A.2d (quoting Travaglia, A.2d at 441 identifying However, evidence “overwhelming because killer,” on direct as described as the victim’s [A]ppellant showing. Rainey, make this cannot appeal, Appellant 1332 n. 5. A.2d at relies on Common argument, Appellant

In his advancing (1983). There, A.2d 1101 Boykin, wealth in first to reach a the defendant’s jury unable verdict was retried, he tried with the defendant was trial. When charges co-defendants from and two new former co-defendant con Following episode. the same criminal during that arose trial counsel was viction, determined that Superior Court motion to sever. timely present not ineffective for reasonable reversed, counsel lacked a finding that trial We untimely an motion to sever. filing basis for former hinged on Pa.R.Crim.P. opinion Boykin Our at least ten be made required pre-trial applications that which late, filed the motion to trial. Counsel days prior reaching the merits. We were trial court denied without have been to conclude that a motion sever would unable Thus, focused on whether analysis merit. our without his client’s to effectuate designed had a reasonable basis before days at least ten making for not the motion interest for untimely request that counsel’s trial. We determined that a trial would judgment separate reflected his severance judgment, of that light of his client. the interests advance remedy. belatedly seeking no reasonable basis we saw basis on the lack reasonable Boykin The Court focused actions, here have determined for counsel’s whereas we counsel’s failure to seek prejudiced has not demonstrated “If it is clear that severance. the outcome adversely act affected that counsel’s or omission basis be dismissed on that may the claim proceedings, first whether the and the court need not first determine alone have been the ineffectiveness prongs [of test] and second Albrecht, Therefore, fails. this claim met.”

IV. Alibi Evidence Next, asserts that Appellant he was denied effective reasonably assistance trial counsel failed to when (Ruth investigate, present and develop, five alibi witnesses children, Weary and her four Weary, Weary, Rufus James Weary, Connor), Janet and Tammy Appellant who asserts murder, would have testified that on the night of the spent night at their house them and did not with leave. Appellant asserts that he made trial counsel aware of this alibi before trial and that Ruth made several unre- Weary turned phone calls to counsel to alibi explain Appellant’s family’s her willingness testify. He further asserts that witnesses, had counsel presented these they would have testi- coat, fied that or long never owned wore a but that did, Williams and that a neighborhood bully Williams was not friends with Appellant. motions,

At the on hearing post-trial trial counsel testified that although Appellant mentioned the possibility present- witnesses, alibi ing “he had in my persuaded never discussions witnesses, me that he N.T., had reliable alibi.” witnesses to 9/28/93, at 13. Based on this testimony, PCRA court rejected claim, Appellant’s finding trial counsel made a strategic decision not to offer the alibi because of witnesses the strength Further, against evidence Appellant. Court, PCRA court concluded that because this on direct appeal, “found that trial counsel was not for pursu- ineffective ing strategy of admitting Defendant’s in the involvement crime arguing murder,” but for a lesser degree of this claim previously litigated. PCRA at 10. op. conclusion,

Appellant contests this arguing that while decision not to investigate present alibi may witnesses strategic, Further, have been it reasonable. to the extent counsel based his decision on failure to reliable, convince him that the witnesses were ar- gues that it was not his responsibility persuade counsel that Rather, this defense succeed. would that it Appellant argues defens- investigate all alternative responsibility is counsel’s disagree. es. We defendant places

An alibi is “a defense involved than the scene place time in a different the relevant him it impossible as to render removed therefrom and so Roxberry, guilty party.” to be the (1992) v. 826, 160, (quoting Commonwealth 602 A.2d (1992)). 820, To Jones, 149, A.2d 529 Pa. (Rodney) evidence, Appel alibi presenting for not ineffectiveness show no reasonable could have establish that counsel lant must Carpen v. See Commonwealth for his act or omission. basis 154, ter, 555 Pa. alibi this introducing purported for not

A reasonable basis Appel- record. When from the readily apparent evidence-is arrested, police admitting a to he statement provided lant was occurred.19 robbery Fleming present that he was when knocked on the door at Williams’ that he police He told shot the away when Williams walking but that he request, was this trial, suppress to unsuccessfully counsel moved At victim. not ultimately did Although statement. case-in-chief, to it is reasonable statement in its introduce the in rebut- introduced the statement that it assume would have to establish an alibi. Counsel attempt to Appellant’s tal for open Appellant’s to door declining for not ineffective Hardcastle, 549 to See Commonwealth police. statement (1997) (finding that counsel was 545 n. Pa. that contra- alibi defense failing present for not ineffective statements). dicted the defendant’s own an omission in the filed a motion to correct The Commonwealth has record, police not in the notifying Appellant’s statement to the us that statement. The statement providing such certified record it, suppress and was hearing Appellant’s motion in the on introduced agree hearing. We with into the record at the conclusion moved to a com- statement is essential that defendant’s the Commonwealth issues, grant the motion to Appellant's and therefore plete review ("If pursuant to Pa.R.A.P. 1926 in the record an omission correct by error or party is omitted from the record anything material to either (cid:127) court, therein, proper appellate ... on accident or is misstated initiative, may the omission or direct suggestion or of its own corrected, necessary supplemental a record and if be misstatement transmitted.”). be certified Moreover, conceding a trial pursued strategy in the crime that the facts arguing involvement but first-degree Appel- of the case did not demonstrate murder. this purported lant’s alibi evidence would have contradicted strategy, given testimony defense which was reasonable (finding 725 A.2d at 163 Morgan. Carpenter, Lewis See a failing counsel was not for to call as alibi witness ineffective strategy); witness who would have contradicted defense Hardcastle, (same). 701 A.2d 541 We will find counsel these present ineffective witnesses. Therefore, Appellant is not to relief on this claim. entitled Background

V. and mental health evidence Appellant claims that trial counsel for failing was ineffective investigate and mental background history, health he claims supported challenge competency would have to his trial, defense, and, to stand a diminished in the capacity penalty phase, mitigating factor. supports mother, aunt, argument with declarations from his step-father, friends, five and a of a mental summary health evaluation Toomer, performed by Jethro Ph.D.20 summarize, To of Appellant’s declarations friends and indicate family Appellant his father by was abandoned and that his mother long Growing up, Appel- worked hours. injuries, lant had a of history beginning head he when by struck a car on his bicycle progressing through while and his teenage years, and, Appellant when took as a up boxing result, was beaten on the face frequently and head. He had lasting from symptoms injuries these head head- including aches, dizziness, jumpiness, and blackouts. Appellant was also slow, concentrate, childlike, mentally confused, unable to easily addition, Crown, Ph.D., Appellant by In Barry relies on a letter 20. letter, years dated June 2004. This dated six alter the PCRA court Appellant’s petition, dismissed was not before the PCRA court when it court, petition. reviewed the As this letter was not before the PCRA we Qualified will not consider it. See Matter One Hundred or More of Clairton, Com., Municipality County Allegheny, Electors of of of (1996) (refusing to consider a letter that was not part appellants of record before the trial court where did not seek to 1926). modify supplement appeal pursuant or the record on to Pa.R.A.P school, in unable to performed and was

accident-prone, poorly job. a hold impair- mental history of support allegation his .of Toomer,

ments, the declaration of Dr. Appellant relies on re- Appellant, clinical who psychologist, licensed evaluated declarations, and and administered court documents viewed Toomer conclud- 1996. Dr. psychological tests dysfunctional “a significant history ed that has “[ejvaluation illness,” and and that development mental mental deficits psychological test results reflect numerous Noting Toomer Declaration at his mitigating of a nature.” trauma, opined of head Dr. Toomer has history cognitive impairments:” “serious cognitive impairments that his have history His reveals There throughout his life. functioning undermined by functioning, deficient intellectual characterized weakness communica- reasoning, thinking, comprehension, logical tion, long range planning. vocabulary, concentration and deficits in and concrete and he had Reasoning is impaired He has prominent. that are mani- higher thought processes seizures, petit epileptic behavior consistent with mal fested out, he ‘blank’ as described including periods when would poor processing include information family. His deficiencies functional and latency. He has and deficient response him and seriously are impair deficiencies that adaptive (brain underlying neurological involvement symptomatic damage). concluded Dr. family’s descriptions Appellant,

Id. The in a Toomer, expect what one would were consisted with individual, and consisted with cognitively impaired were testing Toomer’s psychological results of his Dr. testing. Schizophrenia, “symptomatology reflecting revealed evaluation Id. at 3. In Paranoia Affective Disorder.” type Bipolar and pro- opinion, impairments Dr. Toomer’s these deficiencies and mental evidence that could have been mitigation vide health Finally, to the at trial. he offered that a court provided at the appropriate have been competency evaluation would time of trial. because asserts that trial counsel was ineffective

Appellant him or anyone background he never asked or else about his evaluation, sought mental health never an history, expert or mental develop present any background did not or to that to argue Appellant incompetent health evidence was trial, to or as capacity, stand assert defense diminished evidence in the mitigation penalty phase. Competency

A. trial, Regarding competency Appellant his to stand asserts “there merely should have been a evalua competency hearing original tion and at the time of the trial proceed court ings.” Appellant’s alleged cognitive Brief at 47. Due to his impairments, Appellant asserts that the failure to have a competency evaluation and hearing “undermines confidence trial, to stand competency and thus establishes prejudice as to all of the Appel convictions and sentences.” court, lant’s Brief at 49. Before the alleged PCRA he that he Court, incompetent stand trial. to this brief however, he not allege does that he to stand incompetent trial, only that counsel sought competency should have a hearing. evaluation and The that PCRA court concluded counsel was not for failing investigate Appel ineffective lant’s competency to stand trial because stated on that he rights record understood his the proceedings him, was, against fact, that he indicating to stand competent N.T., 12/21/91, trial. at 45-46. required “plead by prove ...

preponderance the evidence or conviction sentence resulted from ... ineffective assistance of counsel which, case, in the circumstances of the particular so under mined the truth-determining process adjudica that no reliable guilt tion of or innocence could taken place.” have Common Robinson, (2005); wealth v. 583 Pa. 877 A.2d McGill, 832 A defendant is to be presumed duPont, competent to stand trial. Commonwealth v. Thus, 1330-31 the burden is on evidence, prove, preponderance trial. v. incompetent

he stand See Commonwealth (2005). Brown, 1139, In order to 582 Pa. 872 A.2d Appellant that he must establish prove incompetent, proceed either unable to understand the nature of the he was Id.; him to in his defense. against participate or own ings v. 555 A.2d Hughes, Commonwealth does not assert that he was unable understand Appellant him. 50 P.S. proceedings against the nature of See (a 7402(a) he to stand trial when is person incompetent § object the nature or “substantially unable understand in his participate him or to and assist proceedings against (Ter- Brown, 1156; defense”); 872 A.2d rance) Williams, Pa.57, (2004); Hughes, 863 A.2d Therefore, if counsel had no reason- 555 A.2d at 1270. even evaluation, a pursue competency basis to decline to able to articulate he because he prejudiced fails how was Appellant that had counsel an evaluation and requested cannot establish guilt sentencing phase the outcome of the or would hearing, Dr. Toomer changed. The 1996 declaration submitted have and im- merely “[g]iven [Appellant's concludes that deficits competency appropri- a evaluation would have been pairments, Dr. the time of trial Declaration of proceedings.” ate at claim that the Notably, at 3. Dr. Toomer does not Toomer have demonstrated competency result of evaluation would him prevented various mental deficiencies Appellant’s him. This is understanding proceedings against from was, burden to that he satisfy Appellant’s prove insufficient to Brown, fact, A.2d at to stand trial. See incompetent no error in the PCRA court’s dismissal of perceive 1156. We claim, and to find that ineffective for this decline counsel was hearing. to seek a As has failed competency counsel, necessarily of trial to establish the ineffectiveness McGill, claim of counsel ineffectiveness. appellate defeats his at 1023. Capacity B. Diminished evidence, Similarly, and based on the same Appellant’s cognitive that “the fact that mental and asserts un- capacity establish that he has diminished impairments conviction, first-degree in the murder dermines confidence as to the murder conviction establishing prejudice thus not ana- Brief at 49. He does death sentence.” all, in terms of specifically this claim at or discuss it lyze Instead, grounds he ineffective assistance counsel. “lacks the on Dr. Toomer’s assertion that argument thought processes.” for order Declaration capacity higher at 3. Dr. Toomer nothing support

The court found in the record to PCRA a illness that im- contention that he has mental Appellant’s at ability premeditate his to deliberate or his to paired ability murder, concluded that counsel was not the time and for a defense. failing present capacity ineffective to diminished

A that a capacity requires diminished defense the time of a defendant establish he had a mental defect at cognitive murder that affected his abilities of deliberation to formulate intent to kill. premeditation necessary specific McCullum, 590, 1007, v. 558 Pa. A.2d 1009 Commonwealth 738 (1999). This to that he requires defense defendant admit Johnson, 283, v. Pa. 815 killed victim. Commonwealth 572 563, Laird, 629, (2002); v. 555 Pa. A.2d 578 Commonwealth (1999) (“We 346, A.2d 353 held that defense of have ‘[a] diminished capacity only available to a defendant who guilt’.”) admits criminal but contests the liability degree Weaver, (citing Commonwealth v. 500 Pa. 457 A.2d 505 (1983)).

Trial counsel following post-trial testified motions murder, trial to in the strategy had been concede involvement argue supported but to that the facts no more that second- murder. degree attempted Trial counsel also to undermine eyewitness’ testimony identifying Appellant as shooter. contrast, In re- capacity diminished defense would have that he quired Appellant attempt to admit shot the victim and kill, that he intent to specific something show lacked fact, unwilling to do. still claims strategic he is innocent. Counsel’s decision to avoid conviction ca than a diminished pursue murder rather first-degree constitute ineffective assistance defense does not pacity Johnson, find (declining at 815 A.2d counsel. See capacity for not a diminished presenting counsel ineffective killed the not admit that he the defendant did defense where (James) Jones, Pa.222, victim); Commonwealth (1994) (“[C]ounsel’s decision to seek strategic defense capacity rather than diminished acquittal pursue if there is a reason assistance does not constitute ineffective chosen”); v. Pao strategy able basis for (1995) (where lello, particu “the basis, reasonable our course chosen counsel had some lar effective”). is deemed ceases and counsel’s assistance inquiry Mitigation C. appellate determine whether

We must next raise trial counsel’s failure ineffective for mitigating evidence investigate present of friends relying on declarations penalty phase. Again Toomer, asserts that trial coun and Dr. family his friends and to interview sel was ineffective and mental background information on his family obtain significant history provides health. He asserts that his life history damage, and that his of brain background mitigation disorder, sig impairments provide thought psychological If trial counsel had investi mitigation. nificant mental health as mitigation, this evidence gated presented jury’s appraisal the of his that it would have influenced argues Rompilla led to a different result. See culpability and (2005) Beard, 162 L.Ed.2d 360 125 S.Ct. U.S. evidence, whole, (“The taken as mitigating undiscovered Rompilla’s jury’s appraisal influenced the might well have the of a different result had and the likelihood culpability, confidence the in is sufficient to undermine gone evidence (internal sentencing.” at citations actually outcome reached omitted)). claim, that the decla- rejected finding this

The PCRA court accuracy” are “of family questionable rations from friends and and “without medical corroboration.” Op. PCRA Ct. at 10. declaration, Dr. Regarding Toomer’s court PCRA conclud- ed that it “conelusory general, based mainly on Further, anecdotal evidence.” Id. at 11. court PCRA noted that did not allege that trial counsel was aware of his alleged infirmities at the time of sentence. See Peterkin, Commonwealth v.

(1986) (“The reasonableness of counsel’s deci- investigative depends sions on the critically information supplied by defendant.”). Without an allegation that trial counsel was Appellant’s aware of supposed limitations, mental the PCRA court held that Appellant has no basis for claiming counsel was ineffective for failing present mitigation evidence. The court further that Appellant held not could demonstrate ineffective assistance of counsel because it was not clear how testimony to this effect could have swayed jury to impose sentence, a different and surmised that trial counsel chose not present this evidence in an effort to keep jury from hearing evidence that Appellant was unable to control himself and was a continuing danger to others.

Appellant argues that it is impossible to attribute a reason- able basis to trial counsel’s lack of investigation because there no PCRA hearing explain counsel could his Moreover, course of conduct. Appellant argues if even pursued strategy PCRA court attributed to him, it would not be reasonable because counsel did conduct an investigation upon which a reasonable strategic Further, decision could be based. Appellant asserts that the reason counsel was not aware this evidence was because he did not reasonably investigate.

The Commonwealth asserts that failure to indi- cate that he informed trial counsel of alleged background and mental health is fatal to this claim. To the contrary, the argues oath, Commonwealth that under during a colloquy regarding to right testify, Appellant denied having ever been treated N.T., for mental health problems. at 12/26/91 45-46. Agreeing court, with PCRA the Commonwealth argues that “[t]he reasonableness of investigative counsel’s

106 by the supplied on the information critically depends decisions (Pa.1986), Peterkin, that defendant,” at 383 we 513 A.2d no that because there is evidence reject this claim should suspect psychological problems. any counsel had reason not (finding trial counsel was 795 A.2d at 944 Bracey, See abuse alleged present evidence ineffective counsel of family nor his informed neither defendant where Miller, 500, abuse); 560 Pa. v. Commonwealth Uderra, (2000) 550 Pa. (same); v. 592, Commonwealth 601 (1998) failure to 389, 334, (“Appellant’s own A.2d 339-40 706 allegedly him of apprise in order to counsel cooperate with ineffec- a basis for an provide information cannot now relevant claim.”). Moreover, that argues the Commonwealth tiveness evi- presenting avoided such reasonably could have jury not backfire and cause so that it would dence person might a who dangerous conclude kill again. appel assistance of claim of ineffective

Appellant’s derives from waived appeal late counsel on direct counsel, the underly of trial of ineffective assistance claim component considered as appropriately claim is ing 417, 587 Pa. 900 Gorby, v. analysis. essential Commonwealth McGill, It 346, (2006); 832 A.2d at 1022-23. is well A.2d has an to conduct “obligation that trial counsel established background.” of the defendant’s Gor investigation thorough 362, 371-72; Taylor, v. U.S. 787 A.2d at Williams by, obligation This includes 146 L.Ed.2d 389 S.Ct. mitigating available evi reasonably “to discover all duty any aggravating to rebut evidence dence and evidence v. prosecutor.” be introduced may (2004) (quoting Wig Hughes, Smith, 510, 524, 156 L.Ed.2d 123 S.Ct. 539 U.S. gins (2003)). investigation of a particular The reasonableness counsel, as well as evidence evidence known depends upon a further attorney to conduct cause a reasonable that would 813-14; Wiggins, A.2d at U.S. Hughes, 865 investigation. time, 527, 123 obligations same counsel’s At the S.Ct. 2527. conceivable line of “every into investigation an require do no matter mitigating unlikely evidence how the effort would be to assist the at sentencing.” defendant Id. at 123 S.Ct. In the recent decision in Hughes, 865 A.2d at the appellant from the of appealed petition dismissal his PCRA without a he hearing alleged where ineffective assistance of trial counsel for to investigate, develop, present mitigation evidence in the form of his traumatic childhood and claim, mental support health. To his the appellant submitted several mental health indicating cognitive evaluations impair- ments and affidavits from family testify members who would that the appellant raised in an abusive environment. Id. at 812. We noted that trial counsel consulted with a doctor connection with a of competency hearing purposes con- defense, structing possible and the testimony appel- grandmother lant’s and uncle at trial should prompted have counsel’s awareness of the appellant’s abusive childhood (spe- cifically, the testimony indicated that the aban- appellant was mother, by doned his raised his grandmother, and had the However, intellectual of a capacity two-year-old). Id. because there court, was no before hearing the PCRA the record did not reflect degree the of counsel’s awareness or whether the decision to forgo presentation of such evidence the result strategic or tactical Id. concerns. We concluded that the appellant’s proffered evidence, believed, if would have been sufficient to the implicate mental health mitigators, namely, the appellant was under the influence of an extreme mental disturbance, or emotional that his capacity appreci- ate the of his criminality conduct or conform it to require- the ments of the law was substantially impaired, and as evidence under the 814; catch-all mitigator. Id. at see Pa.C.S. 9711(e)(2), (3), § evidence, In light such we found that a genuine factual dispute existed respect “with to coun- sel’s awareness of the proof, the nature and extent of his investigation, and whether the decision to not present evidence was founded upon reasonable strategic concerns.” Hughes, Thus, 865 A.2d at 815. we remanded for an eviden- claim develop

tiary hearing appellant to allow actions. assess the reasonableness counsel’s claim before Hughes resolving presently is instructive stipulated phase, us. During penalty addition, trial circumstances. mitigating two of a support mother in testimony Appellant’s presented 9711(e)(8). third, Appel- § mitigator. 42 Pa.C.S. catch-all that she for life and testified lant’s mother her son’s pleaded hours, for his alone to care had to work long leaving Appellant least, the the very that at siblings. The record indicates coun- have testimony prompted mother should Appellant’s of child- awareness, of difficult degree, Appellant’s sel’s to some As in our Hughes, at 814. Hughes, hood. See A.2d testimony by claim is the lack of hampered examination of this regarding degree from trial the counsel’s awareness counsel family background of a Appellant’s allegations dysfunctional trial the extent of and mental health. Nor do we know or, deficient, not if the he did investigation counsel’s reasons evalua- family interview friends or or obtain mental health instance, extent tion. For do not and to we know whether what mother, the he counsel sole witness Appellant’s interviewed medi- or he obtained presented penalty phase, in the whether Moreover, cal, educational, records. it does history or social a mental-health appear professional not that counsel consulted his and during investigation preparation. proffered Appellant’s dysfunctional

The evidence indicates and, functioning, significant- most background, his low level affective and ly, schizophrenia, paranoia, bipolar evidence of jury, if the have been proof, disorder. This believed would mitigator poten- sufficient the mental health and implicate catch-all ascribed to the tially weight jury affect the (“[T]he at 815 mitigator. Hughes, penalty-phase See weight ... in and qualitative determination is a one which likely upon of a presentation impact detail particular cannot at this simply We ascertain process.”). deliberative proof, trial juncture the extent of counsel’s awareness investigation preparation the nature extent of his investigate or the decision not to penalty phase, whether present evidence was the result of reasonable strate- concerns. gic Hughes, 865 A.2d at 815.

We cannot accept reasoning PCRA court’s support rejection its of this claim that trial counsel chose not to present mitigation in an evidence effort to from keep jury viewing Appellant as a continuing danger to others. We do chose, not know what counsel because did not testify at a hearing his regarding motives. the cases on Additionally, Commonwealth relies of its support argument to allege failure that he informed counsel of his childhood background and mental health is fatal to his claim are factually distinguishable. Bracey, See 795 A.2d at 944; Miller, 601; Uderra, 746 A.2d at 706 A.2d at 339-40. In cases, each of those there was a hearing at which counsel testified the extent of regarding his conversations with the appellant and the appellant’s family In Bracey, members. A.2d at we found that counsel could be deemed ineffective for failing present mitigation evidence of abuse because the appellant and family failed to reveal the abuse to counsel during their consultations with him. Id. This conclusion was based on counsel’s testimony, PCRA where counsel testified that he met with members of the appellant’s family that, several times and although questions he asked about the appellant’s background, no one indicated the during interviews that the appellant had been abused as a child and the appellant himself did not inform counsel of any physical abuse. Miller,

Similarly, in 746 A.2d at the appellant’s trial counsel stated at the PCRA hearing that he met with the appellant’s family “over and over again,” but the family was very uncooperative in terms of providing counsel with informa- tion that he Further, could use in mitigation. Id. the appel- lant himself did not inform his counsel of the sexual abuse that occurred the household. Id. appellant Because the and his family failed to reveal the extent of family home, abuse in the held that we counsel could not be for failing ineffective to present evidence of the pervasive abuse at the appellant’s trial. Id. 339-40, the Uderra, appellant at

Finally, for ineffective that counsel was direct appeal claimed on had used appellant the investigate to whether allegedly the under appellant the past, in the whether drugs murder, the and whether of at the time drugs influence deter problems. We history psychological had a appellant counsel trial allegations, the contrary appellant’s to mined to and prior numerous times the appellant conferred with potential for witnesses trial, investigation and counsel’s during to infor provide failure appellant’s own hampered by members. family of his and location identity about the mation post-trial Further, appellant’s counsel testified Id. him any inform did not appellant that the hearing motion commenced, already the trial had use until after drug alleged not establish that that it did time he determined at which Finally, Id. at the time of the murder. impaired appellant was alleged revealed his appellant that the never testified counsel on the record Based problems. history psychological appellant’s concluded that testimony, we trial counsel’s him apprise in order to cooperate failure to with own a basis provide could not relevant information allegedly ineffectiveness claim. had the cases, here has not trial counsel to those contrast an he did not conduct explain why testify opportunity Thus, evidentiary hearing required an investigation. this claim develop opportunity allow of counsel’s actions. See the reasonableness challenge purpose remand for this will 865 A.2d at We Hughes, only. Charge Simmons

VI. erred claim, that the trial court argues In his next that if it sentenced jury failing to instruct natural life. incarcerated for his that he be prison life in would claim, 42 this it is waived. failed to raise trial counsel Because however, 9544(b). that trial argues, § also Pa.C.S. the trial court to to failing request ineffective for counsel was and that jury, appellate to the explanation this provide

Ill appeal. claim on We failing litigate ineffective for this ineffective consider trial counsel was will therefore whether at argument for to raise this trial. See Commonwealth failing 1, v. 587 Pa. 896 A.2d 1191 Spotz, during phase, prose asserts that penalty issue, he at put Appellant’s dangerousness

cutor future which in to be informed that a life sentence requires jury asserts parole. life of See Pennsylvania possibility means without Carolina, 2187, 154, 114 129 v. South 512 U.S. S.Ct. Simmons (1994) if prosecutor L.Ed.2d 183 that a (plurality) (holding a future at a sen argues capital dangerousness defendant’s trial, may grant the defendant and should be tencing request in render jury penalty prison ed a instruction that a life will the defendant for v. Car ineligible parole); Commonwealth son, (2006) 501, 220, that a (holding 590 Pa. 913 A.2d 273 if the only prosecutor places Simmons instruction is mandated dangerousness the defendant’s future in issue and defen instruction). dant has that the trial court issue the requested claim, rejected The court that Simmons finding PCRA law, a v. Christy, announced new rule of see Commonwealth 192, 877, (1995), Pa. is not 656 A.2d entitled to trial counsel failed application retroactive because Smith, this issue. 544 Pa. preserve See Commonwealth (1996) 219, 1221, that does (holding Simmons apply and that former counsel was not inef retroactively law). predict change agree. fective We Pennsylvania Appellant’s Under law the time trial, juries courts from on the prohibited instructing were 810; parole. Hughes, 865 A.2d at Common possibility See (1990) (stating wealth v. Henry, and commutation not enter into parole, pardon, should deliberations). jury It not until three capital years trial, after that the Supreme United States Court decided Simmons and held certain circumstances juries should be life sentences include the instructed whether Simmons, possibility parole. See U.S. S.Ct. 2187, 129 183. Both the Supreme L.Ed.2d United States Court and this Court have held that Simmons announced 112 retroactively. not See O’Dell apply rule of law that does

new 1969, Netherland, 151, 157-67, 138 117 S.Ct. v. 521 U.S. (1997) a that announced new (holding L.Ed.2d 351 Simmons relief is not available corpus for habeas rule law 493, 585 Pa. 889 Duffey, v. retroactively); Commonwealth (2005). 56, cannot be deemed inef Because counsel A.2d 71 law, failure to in the the predict change for to failing fective constitute grounds an in this case does not request instruction 810; A.2d at 889. Christy, at 656 Hughes, for relief. 865 A.2d Burden of Proof YII.

Next, jury that the instructions argues circumstances mitigating for regarding proof burden jury instructed the that unconstitutional. The court were a reason proved beyond circumstances must be aggravating doubt, proved circumstances must be mitigating able and that is, evidence, aby greater by a “preponderance to phrase on this Appellant, focusing of the evidence.” weight instructions, asserts jury the exclusion of the rest of that a jury preponderance to the conveyed these instructions a reasonable beyond than proof standard is a heavier burden that trial counsel was argues In this regard, Appellant doubt. instructions, appel these and object for failing deficient to raise this issue. ineffective for late counsel was not found that The PCRA court the fact by as demonstrated by these instructions prejudiced factors mitigating of all three jury that the found the existence trial court broad possessed offered the defense. The jury to the phrasing discretion its instructions long so as the law was wording to choose its own permitted jury to the accurately presented clearly, adequately Williams, Pa.207, (Roy) v. 557 consideration. Commonwealth Hawkins, 1167, (1999); v. 549 Commonwealth 732 A.2d 1187 (1997), denied, 1083, 352, 492, cert. 523 Pa. A.2d 511 U.S. 701 (1998). Furthermore, 1535, a trial 118 S.Ct. L.Ed.2d instruction, for an as wording not counsel’s accept court need correctly (Roy) reflects the law. given as the instruction long Ohle, Williams, 1187; 503 Pa. v. Commonwealth (1983). that, in reviewing axiomatic A.2d It is instruction, consider an court must jury appellate challenged fragments, isolated entirety, merely in its charge legal conveys fairly the instruction ascertain whether Jones, at issue. Commonwealth principles they if upheld be Instructions will and are sufficient accurately reflect law adequately in its jury properly deliberations. guide 131, (2001); Rivera, 289, Common- 565 Pa. 773 A.2d v. Gibson, 473, In Pa. v. wealth trial on the by Appellant, to the sentence focused addition as jury court also instructed the follows: circum- prove aggravating must The Commonwealth mean that a reasonable doubt. This does not beyond stance circum- aggravating must prove Commonwealth A certainty. a mathematical beyond stance all doubt or to that cause a reasonable doubt is the kind of doubt would acting sensible to hesitate before person reasonable and in his own affairs. A reasonable upon important an matter juror that a may must be a real doubt. It not be one doubt unpleasant or makes out an imagines up carrying avoid duty. contrast, circum- prove mitigating the defendant must However, he a cir- only prove mitigating

stances. has is, evidence; by cumstance a that by preponderance a of the evidence. In this case there is greater weight circumstances stipulation mitigating verdict that at least two exist. aggravating mitigat

The different treatment of safeguards against circumstances is one of the an ing law’s unjust sentence. It the full benefit gives death defendant circumstances. This is related any mitigating procedure Remember, to the burden of the Com proof requirement. prove aggravating beyond monwealth must an circumstance prove has to only a reasonable doubt while defendant preponderance of the evi mitigating circumstances dence.

(N.T. 31-34) added). 12/30/91, Thus, (emphasis when viewed whole, in context as a the trial court’s instructions regarding respective plainly jury burdens informed the concerning applicable the relative burdens of circum- proof aggravating stances and mitigating clearly conveyed circumstances bore the lesser burden of the preponderance Therefore, the evidence. counsel cannot be deemed ineffec- object tive for to a no proper charge. Accordingly, Williams, relief is due on this claim. (1999) (rejecting Pa. an ineffective- instructions). claimed based on the jury ness same Jury VIII. Written Instructions next by providing jury asserts with completing written directions for the sentencing slip, verdict improperly jury the trial court sent the out to deliberate with “written instructions” violation of Commonwealth v. Oley (1990) nik, (condemning jury 568 A.2d 1238 written causation, murder, defining legal third-degree instructions trial involuntary manslaughter). Because was two years after the decision in asserts that trial Oleynik, Appellant counsel for failing object was ineffective to to the written instructions and for appellate failing was ineffective to challenge their use. The court did not PCRA address this issue.

The instructions of in Appellant complains which were con- complete sentencing nection with how to the verdict In slip. Johnson, Pa. 815 A.2d 583-84 (2002), rejected There, we the claim now advances. here, as the designed written instructions were to assist the in jury completing complicated the somewhat verdict forms any and did not contain statements on of In points law. contrast, Oleynik, the court sent out the jury with written causation, instructions on the of legal definitions third-degree murder, involuntary manslaughter. That situation is obvi- case, ously distinguishable from Johnson and this where law, instructions did not contain an points articulation of but fill merely explained jury to the how to out the verdict slip. for detailing procedure to the jury directions “Written that to subject interpretations are not filling slip out a verdict Johnson, a defendant.” potentially prejudice could Therefore, not ineffective trial counsel was at 583-584. instructions. object written Proportionality

IX. Review Next, this did not con asserts that Court of his death sentence meaningful proportionality duct a review (h)(3)(iii). § required direct as Pa.C.S. appeal by on previously litigated, this claim is acknowledging While Specifically, Appellant asks this Court to revisit it. that the database maintained the Administrative alleges Pennsylvania upon by Office of Courts and relied Court conducting the is flawed and inaccurate. proportionality review

On direct we conducted a review of appeal, 9711(h)(3), § pursuant requires sentence Pa.C.S. sufficiency us to supporting review evidence circumstance, jury’s aggravating of one and to deter- finding imposed product mine whether the sentence of death was the factor, or other or passion, prejudice, any arbitrary was in similar disproportionate penalty imposed excessive or to the record, Upon cases. 656 A.2d at 1335. review of the Rainey, jury’s we concluded that the conclusion that the murder in the of a Fleming perpetration felony Carroll was committed addition, found clearly supported by was evidence. we no on that the death sentence basis which conclude factor, or that product passion, prejudice, any arbitrary or to the disproportionate imposed such sentence was sentences Thus, litigated in similar cases. Id. this claim previously is not under the See appeal cognizable on direct PCRA. Albrecht, review, on collateral (finding, statutory has its obli- already because court fulfilled “[t]his gation Appellant’s proportionality to sentence for review him,” against beyond purview ruled this issue was it The PCRA court previously litigated). PCRA because was denied relief on this claim. properly 116 prior counsel

X. Ineffective assistance of all Next, trial and counsel’s argues appellate relevant and research the law and facts investigate failure “to case, objections arguments” to make the to this ineffective assis- prejudicially raised “constitutes presently assert- baldly Brief at 77. Appellant’s tance of counsel.” counsel, has failed prior the ineffectiveness of all ing He has failed meaningful claim in fashion. develop any to Pierce test three-prong forth his claim pursuant set counsel claim. an assistance of establishing ineffective not self-prov- assistance of counsel are “Claims ineffective 978, Wharton, 85, 986 v. Pa. 811 A.2d ing....” Com. 571 Pierce, (2002); v. 786 A.2d at see also Commonwealth Therefore, boilerplate, undeveloped argu all counsel is prior the ineffectiveness of respecting ment relief. post-conviction to establish an entitlement insufficient Bond, 1250; 572 Pa. 896 A.2d at Commonwealth v. Spotz, See (2002) 588, 33, boilerplate allegation 41 that a (noting 819 A.2d litigate ineffective for prior that all counsel were burden of discharge appellant’s does not waived issues ineffectiveness); v. 568 Pa. Bracey, Commonwealth proving (2001); 264, 935, v. Abdul- 940 n. 4 Commonwealth (2001). Salaam, 79, 558, n. 3 570 Pa. 808 A.2d Error XI. Cumulative to relief contends he is entitled Finally, Appellant because of the cumulative from his conviction and sentence in his brief to this alleged effect of the errors he has Court. held, may of failed claims As this has often no number Court individually. fail to do they relief it so collectively warrant (James) Williams, Pa.553, 896 A.2d Commonwealth v. Rollins, 452; (2006); v. 738 A.2d Commonwealth v. 725 A.2d 1208- Blystone, Commonwealth Williams, Pa.265, (1999); (Craig) Accordingly, the order of the PCRA court is vacated and the matter is remanded for proceedings additional consistent with this opinion. CAPPY, CASTILLE,

Chief Justice Justice Justice BALDWIN and Justice join opinion. FITZGERALD

Justice SAYLOR concurs the result.

Justice EAKIN files a concurring and dissenting opinion. EAKIN, Justice concurring dissenting. join

I the majority opinion, with the exception Section V(C), which remands to the PCRA court for testimony about trial counsel’s consideration of Appellant’s potential mental problem. 107-10, health Majority Op., at 928 A.2d at 239-41. indicates, As the majority this Court’s standard of review after the denial of PCRA relief is limited to determining whether the PCRA court’s ruling supported by the record Id., and free of legal 80-81, 223; error. at see Jones, also Commonwealth v.

(2005). The PCRA court reviewed claim he had a mental health problem and determined “[Appellant’s] affida- vits from family friends and alleging members suffered [he] problems mental do not establish mitigation. The allegations contained in these affidavits are of questionable accuracy and are without medical corroboration.” PCRA Court Opinion, 7/26/04,at 10. The PCRA court concluded Appellant failed “to show how testimony this effect swayed would have the jury impose a different sentence.” Id. This sup- conclusion is ported by Likewise, the record. I find no legal error. Ac- cordingly, review, under our well defined standard of order below should be affirmed. I see no reason why PCRA court should receive about testimony trial counsel’s investigation when the PCRA court justifiably has determined there is no alleged merit to the mitigating mental health issue in the place. first review, Under our limited standard of I affirm would the PCRA court.

Case Details

Case Name: Commonwealth v. Rainey

Court Name: Supreme Court of Pennsylvania

Date Published: Jul 18, 2007

Citation: 928 A.2d 215

Docket Number: 468 and 469 CAP

Court Abbreviation: Pa.