Commonwealth v. Romero

construction, matters of statutory Assembly since the General is free to clarify judicial its intent in the aftermath of construc- case, tion.2 Again, present in the it is significant to me that the Legislature just has done respect to one special 5602(a). power enumerated Section Since the General Assembly is acutely aware has ruling, but Reifsneider not acted impact otherwise curtail its relative to the balance 5602(a), of Section I agree with the majority’s present reason- ing that support continues to the notion that the Reifsneider Legislature’s for the allowance use of “language showing similar intent” to authorize the exercise an attorney-in-fact special of the powers subsumes the use of indirect language, such as that of incorporation by reference.

Justice joins CASTILLE this concurring opinion.

938A.2d 362 Pennsylvania, Appellee COMMONWEALTH of ROMERO, Appellant. Edwin Rios Supreme Pennsylvania. Court of 1, Aug.

Submitted 2001.

Decided Dec. power, agent authority transfers”). gratuitous lacks to make Goode, generally Wendy M. Authorizing Agent and POAs: an Gifts Money (2000) Away, Give Your 88 Ill. ("Throughout B.J. 100 country, courts have expressly grant found that the POAs gifting must power gifts or the complete.”). are not 2. This can be contrasted with interpretation, matters of constitutional as to which the courts' decisions are more final. See Shambach v. Bickhart, 384, 406, (2004) J., (Saylor, concurring) (explaining that "special stare decisis has force" in matters constitutional, statutory, opposed (quoting construction Patter- Union, 164, 172-73, son v. McLean Credit 491 U.S. 109 S.Ct. (1989))). 105 L.Ed.2d 132 Fensterer, Norman, OK,

Alexandra B. Allison Christina Swarns, York, NY, Moreno, New James Philadelphia, Victor J. Abreu, for Edwin Rios Romero. Racines, Allentown,

Theodore Rafael Graci, A. Robert Har- risburg, Carusone, D. Christopher Philadelphia, James B. Martin, Esq., Com., and Amy Zapp, for appellee. CAPPY, C.J., CASTILLE, SAYLOR,

BEFORE EAKIN, BAER, BALDWIN, FITZGERALD, JJ.

OPINION Justice EAKIN. from appeals the order him denying pursu- relief

ant to the (PCRA), Post Conviction Relief Act 42 Pa.C.S. §§ 9541-9546. We affirm.

Appellant was convicted of the first degree murder of David Bolasky, who was lured to Miguel apartment Moreno’s pretense Allentown under the Moreno intended to him pay money. rent Bolasky was attacked and killed inside apartment by appellant, George Lopez, Jorge and Barbosa. Moreno not present during killing, but implicated himself, Barbosa, Lopez, and when confessed the police.

Barbosa confessed to Captain Anthony Bucarey impli- appellant, cated Lopez, and Moreno. Barbosa stated he struck on the Bolasky he, head a pistol, appellant, Bolasky’s around tightening towel took turns Lopez hog-tied, Bolasky’s body was until he dead.

neck building, sheets, apartment out of the in bed carried wrapped and Barbosa Lopez, Bolasky’s Appellant, into van. and loaded area, abandoned the body, dumped a desolate drove to found body subsequently Bolasky’s hog-tied van. pled Barbosa a secluded road. along in bed sheets wrapped a life sentence. and received guilty During guilt tried jointly. and Lopez were Appellant Lopez of about involvement Barbosa testified phase, regard- questions in but refused to answer killing, Moreno in contempt held Despite being involvement. ing appellant’s his court, questions regarding to answer Barbosa refused The trial court appellant. related to they as statements prior to read Barbosa’s transcribed Bucarey Captain permitted ex- interview which police the tape-recorded from statement Moreno also in the murder.1 appellant plicitly implicated cell- testified, Appellant’s in the crime. implicating appellant to him the mate, admitted Lopez, Daniel testified robbery in the and murder. his involvement facts of murder and degree of first jury appellant guilty The found aggravating after four finding of death returned a verdict direct circumstances.2 On mitigating and no circumstances trial court erred appeal, Court concluded the direct this 1. On statements, violating appellant's Con- admitting prior thus Barbosa's however, found the error was harmless rights; we frontation Clause similar, substantially merely cumulative of the evidence was because evidence, testimony namely, of Moreno and properly admitted Romero, 4, 1014, Lopez. v. 555 Pa. Daniel (1999). 1016 following aggravating victim "[t]he circumstances: The found the felony a murder or other committed prosecution witness to was a testimony purpose preventing and was killed for the defendant proceeding involv any grand jury or criminal against the defendant 9711(d)(5); offensesf,]” § defendant commit ing "[t]he 42 Pa.C.S. such id., 9711(d)(6); felony[,]" § perpetration a killing while in the ted a "[tjhe felony involving significant history convictions defendant has a id., 9711(d)(9); § person[,]” to the the use or threat of violence manslaughter, "[tjhe voluntary convicted of defendant has been ..., substantially crime in equivalent § a 2503 or defined 18 Pa.C.S. at the time of the jurisdiction, either before or any other committed l(d)(12). § 971 offense at issue.” 287 this appeal, judgment Court affirmed the of sentence. Com- Romero, 4, (1999). monwealth v. 555 Pa. 722 A.2d 1014 The Supreme United States Court denied certiorari. Romero Pennsylvania, U.S. S.Ct. 145 L.Ed.2d 293 (1999). 25, 1999, On October a pro filed se PCRA petition counsel, appointed received who filed an amended petition. Following hearing, the PCRA court denied appel- petition. lant’s appeals, now raising issues our review.3

In an order reviewing granting or denying post convic relief, tion we examine whether the PCRA court’s determina tion is supported by the evidence and whether it is free of legal Williams, error. Commonwealth v. (1999). To be entitled to relief under

PCRA, establish, appellant must aby preponderance of the evidence, that his conviction or sentence resulted from one or more of the enumerated errors defects in 42 found Pa.C.S. 9543(a)(2), § his claims have not been previously litigated or waived, id., 9543(a)(3), § and “the failure to litigate the issue trial, prior to or during during unitary or on review direct appeal could not have been the rational, result of any strategic or tactical Id., 9543(a)(4). decision § counsel.” An issue is previously litigated if highest “the appellate court in which the petitioner could have had review as a matter right has ruled on the 9544(a)(2). merits of the § issue....”

Several of the issues underlying appellant’s ineffectiveness claims were addressed on direct appeal; specifically, we ad dressed the admission prior police Barbosa’s statement and noted there was sufficient evidence support to the aggravating Romero, circumstances. 1016-19, However, 1021 n. 8. appellant alleges now counsel’s ineffectiveness in connection issues; therefore, these his issues are distinct from those raised on direct appeal and have not been previously litigated. Collins, 45, Commonwealth v. 564, 570, 585 Pa. (2005) (term 573 9543(a)(3) “issue” as §§ used in and 9544(a)(2) “refers to the discrete legal ground that was for- Appellant's issues have been reordered for ease of discussion.

288 have entitled the defen- appeal on and warded direct would from ....”; claims are distinct dant to relief ineffectiveness wholly must be appeal, treated claims raised on direct error). underlying claim of independent waiver, none of issues we note Regarding thus, underlying or on direct appeal;4 were raised at trial 9544(b). § 42 claims of error were Pa.C.S. trial waived. However, relief if he can show may still obtain failing for pursue ineffective to appellate counsel was v. claims of counsel’s See Commonwealth trial ineffectiveness. (2003) Rush, 3, 651, A.2d (citing 576 Pa. 838 656 Common (2003) McGill, v. Pa. 832 1022 wealth claim, (when only ineffectiveness “layered” court is faced with related most recent claim is that to viable ineffectiveness counsel)). counsel, appellate claim, “layered”

To a ineffectiveness preserve petition,” appel- a in his that petitioner “plead, must failing prior raise all late counsel was ineffective must Additionally, a petitioner counsel’s ineffectiveness. on, each develop prong [Com- i.e. “present argument (Pa.1987) [, 153, 527 A.2d ] monwealth Pierce v.] test” as deficient appellate representation. counsel’s “Then, then, preserved layered has only petitioner then, review; claim of for the court ineffectiveness then, only proceed can the court to determine whether claim.” petitioner proved layered has Grant, (2002) abrogated 813 A.2d 726 4. Commonwealth v. Pa. performance trial the rule ineffectiveness claims based on counsel’s opportunity be where has new coun- must raised at the first (1977), sel, Hubbard, Pa. see A.2d 687 defendant wait to raise claims of ineffective instead held a "should Grant, At until review.” at 738. assistance of trial counsel collateral trial, appeal, proceedings, appellant's time and direct therefore, however, decided, appeal direct was not and on Grant trial required to raise his claims of counsel’s ineffective- waiver; having direct failed to them on ness order to avoid raise layer by alleging appeal, required to them ineffectiveness Hubbard, appellate petition. both trial counsel in his PCRA 695 n. 6.

289 (citations omitted) origi- (emphasis at 656 and footnote nal); McGill, at 1021-23. see also to requires appellant prove,

The “Pierce test” with (1) the un respect to counsel’s that: appellate performance, arguable claim of trial counsel’s has derlying ineffectiveness (2) merit;5 for counsel had no reasonable basis appellate (3) claim; to for counsel’s failing pursue appellate but ineffectiveness, the result on would have dif appeal direct McGill, “performance preju fered. See at 1022-23. This Washington, dice” test was first enunciated in Strickland v. 668, (1984), 2052, U.S. 104 S.Ct. 80 L.Ed.2d 674 recognized proper Pennsylva Pierce as the test under the nia Failure to establish of the test any prong Constitution. an v. Base will defeat ineffectiveness claim. Commonwealth more, 258, 717, (2000) 560 Pa. (citing 738 n. Rollins, 435, 441 Commonwealth v. 558 Pa. A.2d (1999) claim of assis (ordinarily, post conviction ineffective tance of may showing petitioner’s counsel be denied evi claim)). any dence fails to meet one of for prongs three Appellant has met the In his PCRA pleading requirement. petition, he properly pled appellate counsel’s ineffectiveness for not trial counsel’s for raising failing ineffectiveness challenge alleged errors at trial. See Commonwealth v. Chmiel, (1994) (ineffectiveness claim must be raised at stage earliest at which counsel whose stewardship being challenged no longer represents appel- lant). brief, In his appellant discusses trial counsel’s ineffec- tiveness and a sentence coun- concerning appellate includes issue; sel’s ineffectiveness in connection each he attempts with catch-all, to overcome of all boilerplate waiver with assertion prior counsel’s is- failing litigate ineffectiveness these Brief, sues. See He Appellant’s presents 99-100. also argument concerning claims of trial error and underlying prong requires appellant 5. An assessment of this Pierce to establish each prong respect performance. prong to trial counsel's This “merit” containing argument-trial has been referred to as a "nested” counsel's performance appel- must be addressed in order to determine whether failing argue counsel late was ineffective for trial counsel's ineffec- Rush, tiveness. See ineffectiveness, prong the first satisfying trial counsel’s However, counsel. he fails to respect appellate Pierce with to coun- remaining prongs concerning appellate the develop two thus, to his claims of stewardship; preserve he has failed sel’s required counsel’s ineffectiveness as McGill. appellate the arguable In the has established appellant cases where ineffectiveness, of trial counsel’s underlying merit of his claim respect of Pierce with to establishing prong the first thus counsel, opportu- be for the may remand warranted appellate remaining prongs regarding appellate to the two nity develop Rush, “Nevertheless, at 657. there counsel’s ineffectiveness. a the petition no need to remand PCRA when simply in relation to the has not carried his Pierce burden petitioner ineffectiveness, since if claim of trial counsel’s even underlying a perfectly layered argument the were able to craft petitioner claim, not entitle of his the claim would support petitioner’s Thus, if need not remand him to relief.” at 657-58. we underlying not burden of proving has met his of trial counsel’s ineffectiveness. claim below, has not demonstrated his As discussed underlying relief these claims. Since any entitlement to on of trial counsel’s ineffec- underlying all of claims appellant’s fail, counsel’s ineffectiveness appellate his claims tiveness McGill, Therefore, as necessarily are defeated well. him develop remaining not remand in order for to we need respect appellate of Pierce to counsel. See prongs two McGill, Rush, 657-58; turn to at 1026. We now address claims. appellant’s conviction must be reversed because the appellant’s

Whether not commenced within the time constraints trial was on agreement interstate detainers. him have argues charges against should

Appellant not tried of his days dismissed because he was within been Rico, required by from Puerto Pennsylvania arrival (IAD), § on Detainers Agreement Interstate Pa.C.S. IY(c). in Puer imprisonment sentenced to art. Bolasky’s for an unrelated offense months after to Rico two months later to face brought Pennsylvania murder and two however, instant his trial not commence until charges; did days delay prejudiced after his arrival. He claims this him much of the used to procure because evidence convic- the 120-day period. tion was obtained after At testified hearing, appel- trial counsel IAD; brought Pennsylvania lant was under for him get under the attempted detainer but by IAD was the that it informed Governor’s Office could IAD proceed under the because was in Puerto appellant 5/81/00, Instead, N.T. Hearing, Rico.6 the 766. brought appellant pursuant Commonwealth to to Pennsylvania executive of agreement signed by an the Governors Pennsyl- vania and Puerto Rico. in appellant 766-67. Once Pennsylvania, the trial schedule by was established consensus the between and counsel for the defendants. Commonwealth Id., at 681-82. not challenge Trial counsel testified he did the time which appellant brought to trial because he felt it argue be to limits disingenuous would time had run when originally he agreed Accordingly, to schedule. Id. appel- fails, lant’s of underlying claim trial counsel’s ineffectiveness unnecessary remand is of his claim development of McGill, appellate counsel’s ineffectiveness. at 1026. denied appellant Whether his to trial where right fair proceedings all were conducted in English, which understand, was tmable to meaningfully and without transla- by tion an interpreter.

Appellant claims he was fair denied a trial because and, English trial was conducted in Spanish- as a native parties disagree regarding The adopted Rico whether Puerto has Brief, Montione, Appellant’s (citing IAD. See at 64 v. 121, 738, (1998) (stating 554 Pa. agreement 720 A.2d 740 IAD is states, Columbia, Rico, between lands)); Virgin District Puerto Is- Brief, (arguing Commonwealth’s at 47 n. 27 Montione’s state- dicta, Nash, ment is based on misstatement in dicta Carchman (1985)); U.S. S.Ct. L.Ed.2d 516 see also PCRA Court Opinion, IAD). (stating adopted at 23 Puerto Rico has not But Williams, see Commonwealth v. 536 n. 5 (2006) (IAD states, Columbia, agreement is between 48 District of Rico, Islands). Virgin Puerto Because the IAD was not used to bring Pennsylvania, light to and in of the fact that trial was consensus, scheduled mutual we need not address this conflict. interpreter an “was provided he was not when speaker, or speak, English to read understand meaningfully unable has Brief, stated: This Court language.” Appellant’s interpreter to ability encompasses A use an defendant’s The failure to understand rights. numerous fundamental right his to confront him wit- proceedings may deny him, consult right attorney, his to his against nesses The use an at his own trial. right present be necessary also be interpreter may protect in his own behalf. right testify

* * * an in the sound interpreter The decision to use rests necessary This is because of the trial judge. discretion of issues and complexity numerous factors such as the must language ability the defendant be testimony and However, important of the into view taken consideration. involved, trial must consider all relevant court rights If it becomes factors in initial determination need. its trial, necessary during interpreter that an apparent should, or on of a party, on its own motion motion the court an interpreter make available. (1976) Pana, 469 Pa.

(citations omitted). he had although interpreter pres-

Trial counsel testified an it clear to him during meeting appellant, ent his first with enough English communicate with understood appellant counsel; phrase if did appellant there was word understand, it in terms. N.T. simpler explain counsel would 5/31/00, 639-42, at 684-85. Counsel further Hearing, PCRA interpreter an at having he discussed appellant testified trial, it a racial bias thought against but he create might against Hispanics some racial animus appellant, there was Spanish if appellant spoke in the he feared community; others, jury eye and in this with English times would Id., if there advised suspicion. appellant at 642-43. Counsel felt he an point interpret- came a in trial that he needed ever felt, er, counsel based on his provided, one would but be conversations appellant, appellant would be able to proceed one.7 at 643-44. without This testimony was corroborated Han- Joseph Detective na, who testified although initially was under the impres- well, sion appellant did not speak English initiated and sustained two conversations with him in N.T. English. 6/1/00, Hearing, at 939-48. Finally, appellate counsel testified his review of the him transcript did not lead believe expressed had he did not understand the proceedings, and therefore he had not raised issue. N.T. PCRA Hearing, at 738. The PCRA court found all of credible, this testimony trial, and concluded at the time of appellant was able to communicate in English and comprehend proceedings English. Carson, See Commonwealth v. (1999) (credibility solely issues fact-finder). province within Accordingly, appellant’s un- fails, derlying claim and there is no need to remand for development of the remaining prongs two concerning appellate McGill, counsel. See

Whether the trial court to take protective measures to failed sustained, combat the pervasive, and inflammatory pre-trial and trial publicity.

Appellant claims the trial court and counsel failed to take appropriate measures to combat inflammatory publicity case, about his pre-trial both during trial. He argues it was impossible empanel an impartial because of the articles, newspaper extensive as well as radio and television coverage, which continually emphasized dangerousness criminal history, as as presented well facts about victim that would have been inadmissible at trial. points out that 76 of the 110 venire members they stated knew about media, the case from the jurors of the 12 empaneled, as alternates, well as three of the four familiar were with the Brief, case. Appellant’s at 85-86. He contends trial court’s instructions to the venire members voir during dire were insufficient to protect right his to an impartial jury, request 7. interpreter by Counsel did an appellant during to stand Trial, 3/20/96, penalty 18-19, 76, phase testimony. N.T. at 294 inconsistent; superficial of them was questioning

its of venue therefore, change demanded a counsel should have the trial or should have moved venire, the trial court jury. sequestered publicity presumptive the media argues However, pretrial mere of existence “[t]he

ly prejudicial. Com prejudice.” presumption does warrant publicity (1996). 96, Chambers, 546 Pa. v. monwealth noted, publicity determining pre-trial whether This Court inherently prejudicial: formed a any juror upon must focus whether inquiry [O]ur as a or innocence guilt of the defendant’s opinion fixed be publicity Pre-trial will publicity. the pre-trial result of is sensa publicity where inherently prejudicial deemed rather than tional, conviction inflammatory, slanted towards had a that the accused objective; revealed factual and confessions, or re record; admissions referred criminal accused; from or derived the crime enactments of officers. prosecuting from the reports police Marinelli, A.2d 547 Pa. v. Commonwealth Paolello, (1997) (quoting (1995)). 439, exists, is deemed be publicity If of these factors any whether inquire and we must inherently prejudicial, extensive, sustained, perva- and so so so has been publicity been must be deemed have community sive inherently if there has been Finally, it. even saturated with no community, has saturated publicity which prejudicial time has passage if the of venue is warranted change of the publici- effects dissipated prejudicial significantly ty- omitted).

Chambers, (citations at 103 trial selected for jurors all 12 The record reveals media; of the case from the knowledge their asked about were it, a fixed none had formed those familiar with who were Dire, N.T. Voir or innocence. See appellant’s guilt opinion Dire, 3/5/96, 16, 21, 58, 117- 141, 260; N.T. Voir 295 19, 127-31, 258-59, 346, 355, 423-26; Dire, 415-16, N.T. Voir 101-02, 107, 195-96, Thus, 108-09, 246-47, at 400-01. not denied his to an right impartial jury, unnecessary remand is for him to his claim of develop appel- McGill, late counsel’s ineffectiveness. venire, appellant’s petit

Whether and hence his was not jury, a representative community. cross-section fair contends his a jury was selected from fair cross-section of the he claims community; Lehigh Coun ty’s jury procedures selection resulted the exclusion of Hispanic jurors and African-American from the To venire. prima establish a case that a selection jury pool method facie Amendment, violates the Sixth must show: 1) the group allegedly excluded is a distinctive in the group 2) community; representation group of this in the from pool juries are which selected is unfair and unreasonable in relation to the persons number of such in the community; 3) the under-representation systematic is due to the of the group exclusion selection jury process. (1999) Lopez,

Commonwealth v. 495 Missouri, 357, 364, Duren v. (citing U.S. S.Ct. (1979)). L.Ed.2d 579

At the hearing, trial counsel testified he did “not really” jury recall selection proceedings, N.T. PCRA 5/31/00, 611, Hearing, at but that to his there knowledge, were jury no members Hispanic names on nor appellant’s jury, there any were African-Americans. Id. He recalled “maybe one or two” African-Americans in a jury pool of approximately Id., 100. at 611-12. He the Hispanic population stated 100,000-110,000,id., Allentown is approximately 6% at 618, so he expected larger would have a percentage Hispan- Id., However, ics on the panel. give was unable to statistics regarding Hispanic and African-American popu- whole, lation of Lehigh County as a from jury which the pool was selected. prosecutor

The testified regarding Lehigh County’s jury selection process; county PennDOT sends the a list of all ran- residing county, computer in the

licensed drivers Id., at is no from list. 776. There domly selects names based way persons for the to include or exclude venire system race or on 776-77. gender. challenge

In raised a similar Lopez, co-defendant claiming process systemat- on direct selection appeal, handicapped. ically elderly, poor, excluded the to offer Lopez, Lopez at 494. This Court concluded failed in Le- under-represented proof statistical these classes were Likewise, high process. appel- selection County’s Lehigh lant failed offer statistical Coun- regarding to evidence Furthermore, as ty’s Lopez, racial observed composition. a number Lehigh County’s provided greater selection method prospective jurors county’s than were contained the voter list, acceptable is as an means of registration which listed 4521(a)(2). § n. 13. Lopez, selection in 42 Pa.C.S. at 494 Thus, statutorily County’s method of selection is Lehigh failed to a viola- permissible, appellant has demonstrate an jury. tion of to right impartial his Sixth Amendment unnecessary development is for further Accordingly, remand McGill, at of this claim. 1026. unconstitutionally was incom-

Whether tried while petent. He claims he tried while

Appellant incompetent. was argues testimony who testified experts two retarded, borderline hearing mentally PCRA established he is factors, ill; brain these damaged, mentally claims an combined the fact he provided interpreter was trial, a stun him during was forced to wear belt rendered incompetent. 7402(a), § is person incompetent

Pursuant to 50 P.S. stand trial he is unable to substantially when understand or object proceedings against partici- nature of the him or to discussed, in his defense. As pate previously appellant’s own meritless; claim the lack concerning interpreter of an is meritless, claim the stun also as discussed concerning belt is Thus, at the PCRA expert testimony turn we infra. only may support appel- as it is the evidence which hearing, lant’s claim. testimony experts; of two

Appellant presented Although one all of presented expert. extensively concerning appellant’s capacity experts testified intent, form and whether specific intelligence, his low level that syndrome, he had brain none of them testified organic mental have any deficiency possessed by appellant would him from his trial about prevented understanding what Furthermore, trial coun- cooperating from with trial counsel. any question sel testified “there was never mind [his] ... in his defense.” [appellant] participate knew and could Thus, N.T. at 660. claim Hearing, meritless, and there is no need to remand for development McGill, of this claim. See at improperly

Whether to wear a stun belt forced during his trial. claims wearing preju a stun belt at trial him in jury’s eyes

diced and constituted cruel and unusual punishment. argues He there no showing necessity belt, him to and the wear Commonwealth failed to show less restraining restrictive means of him were unavailable. He further wearing contends the belt him of deprived his ability to communicate with counsel and him placed “under significant, unfair and prejudicial psychological pressure,” Ap Brief, pellant’s such that he participate was unable to his defense. He claims the belt wearing during testimony his at the penalty phase interfered right testify and his right against self-incrimination.

Trial counsel and the prosecutor both testified the stun belt jury; was not visible to the it appellant’s was underneath clothes. Hearing, N.T. PCRA 768. The could not prejudiced by have been what it could not see. Further, there no testimony presented sup- which would port appellant’s assertion that the belt hin- psychologically him dered from fully participating his trial. As this claim merit, it development remand for further of is unneces-

lacks McGill, at 1026. sary. See entitled to his conviction and appellant is

Whether from relief innocent conviction actually because he is and his sentence testimony, govern- death sentence are the product and offalse and assistance overreaching, ment misconduct ineffective counsel. claims his and death sentence conviction they be because he is innocent and because must overturned misconduct, testimony, false product government were The crux of his argu and ineffective assistance of counsel. Moreno, that trial of Barbosa and which testimony ment is case, mainstay by of the Commonwealth’s was coerced false, by as evidenced these witnesses’ police hearing. Appel recantation at subsequent trial counsel argues appellate lant further were ineffective this recantation evidence. failing present discover To be entitled to a new trial on the basis of recanta evidence, testimony tion “the must be such that it could not at the time of trial reasonable diligence; have been obtained cumulative; corroborative or cannot be merely must be and must it solely impeachment; directed be such outcome of the trial.” likely a different compel would Williams, McCracken, (citing at 1180 (1995)) (citations omitted). 541, 545 Pa. This Court has stated: extremely

Recantation is unreliable. testimony When an it is the perjury, recantation involves admission least responsibility reliable form of The trial court has the proof. judging credibility of the recantation. Unless true, that the recantation it trial court is satisfied should may trial. An court not disturb the deny appellate new a clear abuse of discre- trial court’s determination absent tion. Henry,

(1997) (citations omitted). Appellant reasserts his of the “pizza shop version is story” true; he claims he inwas the pizza shop across the street from the apartment where the murder took place, part had no in the planning crime, commission of the and is thus innocent. This trial, was the defense theory at and the jury rejected it. At appellant’s PCRA hearing, Barbosa and More- no their prior recanted testimony in- implicating appellant, stead adopting their own versions of the pizza shop story an attempt exculpate appellant.

Barbosa testified he did not testify at trial with reference to appellant because he did not want to continue to lie about involvement. N.T. PCRA Hearing, at 217- 18. Barbosa testified appellant was not present during the murder, rather, but stayed in a nearby behind pizzeria where the other men involved had formulated the plan rob Bola- Id., sky. at 205.

Moreno, who made statements to the police implicating murder, in the testified his earlier statements were Id., false. 312. Moreno testified he did not see apartment, inside the but thought might remem- ber appellant coming Id., down the of the building. stairs 307-08. Moreno testified he only remembered seeing appel- lant outside in front of the apartment building after the murder.

The judge, PCRA presided who also at appellant’s trial, did not find the recantation testimony these witnesses credible:

Because I presided at Defendant, the trial of the as well as at the hearing, I had the opportunity to observe testimony Barbosa and Moreno both times. It my finding that both Barbosa and Moreno were untruthful giving when their recantation testimony at the PCRA hear- ing. Counsel for the Commonwealth and for the Defendant motives, have outlined the thereof, or lack for Barbosa Moreno to have lied at the PCRA hearing. Whether the motive to lie came from friendship, from peer pressure, from a desire for status in the prison community, or for

300 clear finding. It my

some reason immaterial to other is as as its testimony well from the content of the PCRA to lied order delivery both individuals in manner of death. the from the sentence of to save Defendant attempt 9/15/00, at 3. It is fact-finder’s Opinion, PCRA Court testimony, and conflicts in function resolve inconsistencies to 494, 496 Smith, Pa. v. Commonwealth (1980), of are credibility solely province issues within Carson, credi- 693. Where a PCRA court’s the fact-finder. at record, binding by the it bility supported determination is White, Pa. reviewing on court. Commonwealth (1999). court, heard having The at and observed their demeanor testimony these witnesses’ concluded their statements hearing, both and the PCRA trial no credible. find reliable and We implicating appellant were court; therefore, will by abuse of the PCRA we discretion credibility disturb its determinations.8 Barbosa and Moreno’s statements Appellant further claims coercion, and the police him implicating product were the disregard this evidence reckless presented polygraph its it did not administer falsity truth or when to The statements these witnesses tests these witnesses. however, Moreno polygraph; gave, prompted were prospect having faced with the gave his statement when of his police take a after several versions polygraph giving after failed story, Barbosa his statement gave only pizza shop story. The having police told polygraph, his own level of involve- inconsistency Moreno’s stories was ment; version, he confessed to level greater each new with for his gave subsequent The reason Barbosa complicity. he did testify implicated appellant refusal to after he had 5/26/00, 217-18; lie, at Hearing, not want N.T. PCRA however, testimony police of the revealed hearing the PCRA relationship, es- prior having Barbosa and had a Hearing, in Puerto Rico. N.T. PCRA caped jail together from cellmate, veracity Lopez’s, challenges 8. also of his Daniel respect to the testimony. discussed above For same reasons Barbosa, testimony of Moreno this claim is meritless. Barbosa, in prison at 967-68. who life serving trial, nothing gain by testifying had feared retaliation against family by appellant’s supporters Thus, Puerto Rico. at 965-66. there is in the nothing support appellant’s record to miscon- allegation government fail, Accordingly, duct. claims appellant’s ineffectiveness no there is merit to his claims of innocence or underlying misconduct,9 government and we need not remand for develop- ment of his claim concerning appellate counsel’s ineffective- McGill, ness.

Whether admission redacted state- inadequately ment appellant’s non-testifying co-defendant, joint at their trial, violated appellant’s nghts. constitutional

Appellant claims the admission of Lopez’s inadequate ly redacted statement joint at their trial violated Sixth States, Amendment confrontation rights and Bruton v. United (1968) (non- 391 U.S. 88 S.Ct. 20 L.Ed.2d 476 co-defendant’s testifying confession that an expressly names trial). other co-defendant joint is inadmissible at Lopez did trial, not at testify but appellant’s cellmate testified regarding the contents of a written Lopez statement had him.10 shown statement, In the Lopez said he and appellant pizza were in a shop murder, when Moreno committed the Lopez and and appellant merely helped dispose of the body. See N.T. Trial IV, 3/12/96, 125-27, Vol. at 150-52. The statement supported argument Commonwealth’s that and appellant Lopez con spired to fabricate a false inculpatory statement they while in prison, were minimizing crime, their involvement in the see Trial, 3/19/96, 92-96; N.T. it was introduced first against Lopez, against then appellant. against Lopez, When read Also, ineffectiveness, regard 9. with to trial argument counsel's this is illogical. trial, Although testimony Barbosa appellant recanted his is primarily arguing testimony Barbosa and Moreno recanted their at the hearing. Accordingly, trial counsel cannot be ineffective for testimony presented by years a witness five after the trial. The same appeal. true of counsel on direct evidence; The written statement was never introduced into contents, cellmate having reiterated its been told not to mention one co- IV, talking defendant's name when about the other. N.T. Trial Vol. 3/12/96, at 132.

B02 “the other replaced with name was redacted

appellant’s name redact- appellant, Lopez’s against when read guy”; “the other claims guy.” replaced ed name vitiated the subse- of the redaction of his effect name; both versions presenting of Lopez’s redaction quent to referring it clear the cellmate was the statement made Lopez.11 contention, shop Contrary pizza for its truth. the cellmate was not introduced story Lopez told (“[Daniel Trial, 3/19/96, testify not Lopez] N.T. at 92 See ‘This is testifying, is true. He was what story that this ing ’ saying them.... He was not had me out for they write true.”). Rather, it was admitted show that’s i.e., not have fabri guilt, they consciousness of would Lopez’s they had not been to minimize their involvement story cated (“There’s id., oneself at 96 a reason to remove See guilty. a reason to and faults. There’s responsibility from criminal And the minimize involvement. fabricate evidence and [their] talked about before. Because reason is the same reason we Thus, hearsay. the statement was they’re guilty.”). truth of (hearsay prove is statement offered Pa.R.E. 801 asserted). is not A to confrontation right matter defendant’s introduces a co-defendant’s implicated prosecution when the truth non-hearsay purpose; for a incriminating statement Lopez, at 506-07 implicated. the statement is not See Street, J., Tennessee v. 471 U.S. concurring) (citing (Saylor, (1985) (defendant’s 85 L.Ed.2d 425 105 S.Ct. by not violated introduction rights Clause Confrontation testimony. concerning See Lopez an identical claim this 11. raised Court, ruling specifically while not on whether Lopez, at 496-500. This Bruton, a basis for violated held counsel had reasonable the statements Lopez guy,” Lopez objecting as "the other not to the references prejudiced the admission of the statements. failed to establish he was Id., testimony portion of the at We further held another 498-99. by party opponent Lopez objected which fell under admission concurred, Saylor hearsay exception to the rule. Justice Cappy, noting joined by Zappala and Justice he would hold then-Justice implicated by the cellmate’s testimo- Confrontation Clause was not truth, show ny not for its but instead to because it was introduced such, hearsay. guilt, and was not fabrication as consciousness of id., J., (Saylor, concurring). at 505-07 accomplice’s confession for nonhearsay purpose rebutting coerced)). defendant’s that his testimony confession As truth, the pizza shop story was not introduced its it was not hearsay, appellant’s rights confrontation were not Therefore, implicated. remand for development of this merit- McGill, less claim is unnecessary. See at 1026.

Appellant further reading claims both of Lopez’s versions statement it made clear another statement by Lopez, redacted detective, read into aby police evidence also referenced appellant. The detective read portions February police Lopez, interview with which name was redacted and “the replaced Trial, other guy.” See N.T. 186, 189, 193-94, 199, 201-04, 211, 216-20. As with Lopez’s cellmate, written statement to the Lopez’s statements in the police truth; interview were introduced for their three Lopez’s interviews showed from deviation his initial version of events earlier interviews and his inconsistency in relating the “facts” of the murder to police. See N.T. Trial, 3/19/96, at 107-10 (prosecutor’s closing statement con- Lopez’s trasted occurred); different versions of how murder id., (“I at 110 submit to you, you also why George know Ivan Lopez is lying. Because guilty he’s doesn’t to be want found out. George Ivan Lopez’s lies are indications of his guilt.”). Because Lopez’s statements were introduced not for truth, their but rather to show he fabricated stories because he guilty, appellant’s confrontation rights were not implicated. This meritless; therefore, claim is remand is McGill, unnecessary. See

Whether the Commonwealth improperly introduced irrelevant and inflammatory victim impact evidence. Appellant claims the Commonwealth in improperly

troduced victim impact evidence during the guilt phase when impact 12. Victim concerning evidence is “evidence the victim and the impact that the death of the family victim has had on the of the 9711(a)(2). 11, 1995, victim....” § Pa.C.S. On October 9711(a)(2) § permit impact amended to victim evidence to be amendment, penalty phase. admitted in the The which took effect 60 thereafter, days applies only imposed to sentences for offenses which date; thus, place took on or after its effective appellant's at the time of regarding background certain testified the victim’s witnesses evidence, character; claims which and this was the because the inflammatory, penalty phase also tainted limiting a instruction. given was never curative to result for the sympathy Evidence introduced to the facts having relationship no direct family, victim’s while crime, the impermissible during and circumstances of the Story, trial. v. 476 Pa. guilt of See Commonwealth phase (1978). claim, the Contrary es these introduced as evidence testimony of witnesses link to crime. One of the victim’s tablishing a co-workers day the victim received on the testified about bonus check from his belongings, the murder that was never recovered theft, robbery, receiving thus and supporting charges testified about property. stolen Another co-worker what seen wearing victim was last and described victim’s when briefcase, of one later description matched the discard which ed Barbosa. The who found the victim’s discarded witness wallet, body, in later the victim’s locating which was crucial it, learn only she tried to return the victim recounted how dead; The chief testified gave police. police she then it to investigation discovery and regarding missing person The testified about her body. victim’s wife what last seen and his dis husband was when identified wearing this belongings. testimony carded All of was relevant linking the chain of the defendants establishing events such, it, the crime. As there no error admitting McGill, at develop remand to this claim is unwarranted. See 1026. trial, during guilt impact both victim evidence was inadmissible Fisher,

penalty phases. (1996). 145-47 co-workers, Nancy testimony cites the victim’s Zimmerman; Willgruber, Miltenberger, Leposa, and Ken Lorelei Louis wallet; Larry Boyer; Brenda who found the Police Chief victim's Brief, Bolasky, Appellant’s the victim’s wife. See relieved the unconstitutionally jury the instructions Whether element each every its burden proving Commonwealth of of of a reasonable doubt. beyond offense unconstitu the instructions

Appellant argues jury proving of of its burden tionally relieved Commonwealth a reasonable doubt. beyond element of each offense every that as a doubt The trial court defined “reasonable doubt” to sensible reasonably, person, cause a careful and “would of a matter acting upon hesitate or pause, refrain from or to his or her in his or her own affairs highest importance Trial, 3/19/96, (emphasis at 155-56 add own interests.” N.T. ed). acting” the “refrain from formulation Appellant claims than is due requires higher required by a level doubt In Suggested Jury Standard Criminal process; Pennsylvania 7.01(3) a as one “that struction defines “reasonable doubt” a careful and sensible reasonably person would cause in his or acting importance hesitate before a matter of upon 7.01(3). (Crim.) also Appellant her affairs.” Pa.S.S.J.I. own inconsis alleges jury prior the trial court told the Barbosa’s in the regarded tent statement could be as of the facts proof statement; he this instruction relieved Common argues func jury’s fact-finding wealth its burden and invaded Finally, accomplice co-conspir tion. asserts the ator of its liability instructions relieved the Commonwealth proving possessed specific burden intent to kill.

A trial court has broad discretion in its instruc- phrasing wording long tions to the and can choose its so jury own clearly, adequately accurately presented the law is In jury reviewing challenged for consideration.... instruction, appellate an court must consider the entire whole, as a in order charge merely fragments, isolated fairly conveys legal to ascertain the instruction whether principles at issue. Gibson, v. 553 Pa. A.2d

(1998) (citations omitted). acting” portion isolates “refrain from in the charge reading the reasonable doubt without it context charge; phrase of the entire the trial court this prefaced hesitate,” and thus did not the definition to “pause, restrict those doubts that one from at all. only preclude acting would This has of similar instructions on reasonable approved Court Murphy, doubt. See Commonwealth (“reasonable (1999) that 146-47 doubt” is one would prudent, person pause, “cause a careful and sensible hesi- tate, acting upon restrain himself or herself before a matter of affairs”). highest importance language his or her The used herein is not a variation warrants reversal. reads a of the instruction

Similarly, appellant portion isolation; Barbosa’s statement regarding prior charge, choose, entirety, may, you regard in its stated: “You this if in proof anything evidence as of that the witness said the Trial, 3/19/96, earlier statement.” N.T. at (emphasis added). this concluded on direct Although appeal Court admitted, statement prior erroneously Barbosa’s see Romero, the instructions on it given proper. were contention, Contrary to the not appellant’s court did direct the jury regard Barbosa’s statement as but rather that proof, the could do if it so chose. The the jury province jury so of invaded, nor was the Commonwealth’s burden of proof diluted.

Appellant’s conspirator claim that the and accomplice liability instructions the negated requirement Common intent kill prove possessed specific wealth is also merit- A entirety less. review the instructions their reveals the told jury court “each is entitled to have the [defendant] of his determined and on the question guilt individually basis against of the evidence that is admissible him” and “the defendant is not unless he and the others had an guilty or a agreement common and shared the inten understanding Trial, 3/19/96, tion to commit these crimes.” N.T. added). stated, The court an (emphasis “[A defendant] if with the intent accomplice promotion facilitating or solicits, commands, commission the crime he encourages or aides, aide, requests person the other to commit it or agrees attempts person to aide the other or planning committing added). Thus, it.” at 184-85 (emphasis instructions properly reflected the element of specific intent the Common- to prove. wealth had Remand for further of this development McGill, claim is unwarranted. See Whether constitutional were rights violated when his penalty phase proceedings were conducted with jointly those his co-defendant.

Appellant claims his confrontation rights were violat ed by conducting his penalty phase jointly with co-defendant Lopez; he further claims joint phase penalty precluded receiving an individualized sentence. first argues joint penalty phase exacerbated the error from arising improper admission of Lopez’s during redacted statements guilt phase. He argues further that hearing Lopez’s penalty phase put evidence at risk of comparing appellant Lopez, rather than affording appellant individualized consideration.

There is no requirement that co-defendants receive separate penalty hearings once both are guilty; found howev er, each defendant must receive sentencing. individualized Ohio, 586, 602, Lockett v. U.S. 98 S.Ct. (1978) L.Ed.2d 973 (concept of individualized sentencing criminal cases long has been accepted). Absent any showing the defendant was prejudiced by the trial court’s refusal to sever the proceedings,14we will find no abuse of discretion by the trial Lopez, court. See at 501.

As discussed supra, appellant’s confrontation rights were not violated the admission of Lopez’s redacted statements during guilt thus, the phase; the admission of such statements did not affect appellant’s confrontation rights at the penalty phase. Additionally, Lopez testified and was cross-examined at the penalty phase. respect With to the argument that Lopez’s penalty phase evidence appellant made “look bad” comparison,15 we note Lopez received the same sentence of sever, 14. Trial counsel filed a motion to which the trial court denied. 5/31/00, Hearing, N.T. PCRA at 682. Lopez presented mitigating more Ap- evidence than did. pellant points Lopez "cooperated" also to the police by fact with the thus, the looked appellant hardly death worse appellant; Furthermore, the record jury Lopez. appellant’s than belies trial claim he not receive an sentence: the did individualized jury court the each defendant was be sentenced instructed to be determined individually separate- and each sentence was Trial, 3/20/96, 141; trial court the ly, repeated N.T. at for mitigating circumstances aggravating instructions on id., a defendant, 141-44; jury at and the given each Id., for each separate individualized verdict sheet defendant. trial jury presumed is to have followed the 145-47. As Baker, instructions, court’s see (1992), no need to for there is remand McGill, at 1026. development of this meritless claim. See improperly permitted Whether the Commonwealth ivas inflammatory testimony appel- introduce irrelevant and that alias. allegedly lant used an penalty phase, claims the Com

Appellant during of an improperly monwealth introduced evidence his use history testifying prior alias. While about vio Rico, lent Rican officer police crimes Puerto a Puerto him an name initially mentioned incorrect gave Trial, crimes. during investigation those See N.T. objection, 49-54. counsel’s the trial Following instruction, “The gave cautionary informing jury: court in this isn’t really alias that used situation particular The important [appellant] and critical. issue is whether Rico, in Puerto that engaged in a crime violence about.” investigator talking is contends jury it did not inadequate this instruction was because tell sentence; it him in against deciding could not use the alias thus, injected the testimony non-statutory aggravating evi sentencing proceeding. dence into the There in the nothing supports appellant’s record contention this fact as an somehow used additional factor; statutory the verdict sheet shows the aggravating statements; however, giving Lopez’s giving several inconsis- them his fabricated, statements, tent were to be cannot which later determined cooperation. be characterized as found, have jury presumed and the is factors that were appellant’s to not focus on the trial court’s instruction followed Baker, alias, 672, statutory on the an but rather use of As the crimes of prior factor of his violence. aggravating noted, compari- in pales “the use of a false name PCRA court to the concern- to the other facts that were submitted son Court history.” criminal ing [appellant] prior and his by not this Appellant prejudiced Opinion, of this claim is development so remand for further testimony, McGill, at unnecessary. See improperly permitted ivas

Whether the Commonwealth convictions appellant’s prior introduce and sentences facts of his trial. during penalty phase of improperly claims the Commonwealth he underlying to introduce the facts and sentences permitted voluntary manslaughter, of prior received for his convictions murder, in car-jacking robbery, conspiracy, attempted Rico; the testi through this evidence introduced Puerto (d)(9) officers to establish the police of Puerto Rican mony two (defendant felony convic significant history has aggravator person) or threat of violence to involving tions use (d)(12) (defendant voluntary man aggravator convicted substantially § slaughter, as defined 18 Pa.C.S. or at time any jurisdiction, similar crime in other either before issue). v. Appellant argues of offense (1995), 539 Pa. 653 A.2d 626 held the details Rompilla, if may only conviction be introduced such evidence prior threat “the use or necessary prove convictions involved Brief, (citing at 72 person.” Appellant’s of violence to the 633). Therefore, claims, his prior because Rompilla, which, definition, the use or felonies were offenses involved violence, been pre threat of the Commonwealth should have of the offenses. introducing underlying cluded from details this recently This Court addressed issue Commonwealth (2007). Rios, In rejecting v. 920 A.2d 790 may prior contention details convictions on penalty phase, be introduced at the we relied Common- (1994): Marshall, Pa. 643 A.2d 1070 wealth capital sentencing hearing proceed- is not a sanitized “[a] of ing only aggravating limited evidence circumstances. Rather, must, by necessity, history it inform of development and natural the events and of offenses charged, which the is as well as those which he convicted, has been so that the jury may truly understand of the Appellant’s nature offenses and character. The cannot jury simply perform ignorance its in function of sentenced, Appellant being the crime which is or facts of for convicted, the crimes which he has been previously for the extent may properly support those crimes aggravating existence circumstances in provided Section 9711(d).”

Rios, Marshall, 1074) at 814-15 (quoting (emphasis Furthermore, stated, original). reliance “Any Rompilla we on ... misplaced is that case held that the specifically we introduction of the details regarding appellant’s prior for rape properly conviction were admitted in support 9711(d)(9).” Id., § at 815 n. 9.

Thus, no error in the perceive underly- we admission of the felonies; ing appellant’s facts of violent prior remand for McGill, development further of this issue is unwarranted. See at 1026. right

Whether to a capital trial and sentenc- fair ing was violated prosecutor’s improper injection of irrelevant and “bad inflammatory past acts” evidence. improperly claims introduced guilt phase prior evidence of his bad acts reference incorporated by was instruction, into the a penalty phase limiting without and the it jury considered as evidence his criminal propensity when him. The sentencing testimony of which appellant complains Moreno, he, given by was who stated appellant, Lopez, Barbosa they looking were Allentown because “were drug some dealers to any.” rob. We didn’t find N.T. Trial Ill, 3/12/96, objection Vol. at 24. Counsel’s to this statement was overruled. noted,

As the trial court this was a reference to criminal activity; the “act” Moreno referred to never happened. See id., Furthermore, to the extent the statement suggest ed appellant act,” committed “bad evidence of other crimes legitimate admissible for evidentiary such as to purposes, intent, show motive or the act part where of a chain of events forming the history the case and of its part Seiders, natural development. See Commonwealth v. (1992); (3). 404(b)(2), see also Pa.R.E.

Moreno’s testimony crime, provided the motive for the intent, probative of gave the background of the planning of the Ill, 3/12/96, murder. See N.T.Trial Vol. 26 (“[T]hey dealers, landlord.”). said that if there was no drug to rob the Appellant’s meritless; claim is remand for further develop ment McGill, of it is unnecessary. See Whether the Commonwealth improperly introduced unrelia- ble and speculative evidence that the experienced victim “ter- ” ror.

Appellant claims the Commonwealth’s expert, forensic Dr. Mihalakis, Isadore improperly testified the experi victim enced terror. This testimony in response was to the prosecu tor’s query about what occurs during ligature strangulation, the manner the which victim died:

What is required is that the ligature be tightened, the blood supply compromised off, or closed narrowed, the windpipe the air supply and oxygenation reduced, of the being blood the brain being deprived of oxygen. There is period struggle until the person passes out. The period of struggle is, on depending whether and how the quickly ligature is tightened, it may be quick, seconds, as low as or it may last seconds or how, minutes on depending during this period time, conscious, the person alive, is appreciates what is happening. It’s a very terrifying period and then the person passes out and then we have those windows that I spoke before. Ill,

N.T. added). Trial Vol. at 181 (emphasis Appel- lant argues this an impermissible reference to the victim’s mind, state of and the incorporation of guilt the phase evi- his as as phase sentencing into the tainted well penalty dence trial. Lopez’s co-defendant The identical issue was raised we stated: appeal, in which an is aid to the when “Expert testimony permitted science, skill, or related to a subject distinctly the matter is experience aver- knowledge occupation beyond Auker, Pa. age layman.” 521] [545 (Pa.1996). is average layperson gener- The A.2d accompanying processes ally unacquainted physical therefore, proper subject this was a ligature strangulation; comment explain. perhaps for Dr. Mihalakis to While it necessary, not have been period” may about a “terrifying obvious; any conscious did little more than articulate strangled to to be terrified as are going they person trial, in the of the entire there was death. Viewed context Mihalakis’ statement. Even nothing about Dr. prejudicial in a challenged general, non-specific remark given manner; speculating experi- was not about doctor ence of this victim. (2004). 545, 854 Lopez,

Commonwealth v. reasons, fails, claim and further For the same McGill, at unnecessary.16 remand is investigate, failing Whether trial counsel ineffective and evidence. develop, present mitigating substantial for fail

Appellant claims trial counsel was ineffective develop, mitigating substantial ing investigate, present and and counsel appellate the during penalty phase, evidence failing pursue Appellant argues this claim. ineffective members so that family trial counsel have should interviewed childhood, of and traumatic histo appellant’s abusive evidence behavior, and ry injuries auditory head and visual strange of Furthermore, very strategy defense was to minimize counsel’s valid 16. crime, Hearing, N.T. appellant’s in the see PCRA involvement 670; "contesting brutality killing the Lopez, we of at as noted defense, quarreling and over com- would not have furthered this this minds, ,to [appellant’s] highlight jurors’ only would it in the ment Lopez, 854 A.2d at 470. detriment.” hallucinations, mental illness could have family history and of (e)(8) mitigator.17 been of the “catch-all” presented support him He further claims trial counsel should have asked about abuse, history drug his and alcohol as such evidence would (e)(8) supported mitigator. Finally, appellant also have claims trial an mental expert counsel should have secured health of him such presented evaluation and evidence (e)(8) of the support mitigator.

During opening, closing, and cross-examination of Com- monwealth in the trial at- penalty phase, witnesses counsel murder, tempted to minimize role in the as as well Trial, 3/20/96, his role in crimes in Puerto Rico. N.T. prior 29-30, 45, 59, 118, 120, at 126. only witness called; counsel counsel testimony elicited raised his his grandmother parents problems, because had only completed grade, ninth in a station and gas worked certificate, obtained a mechanic’s had been married and had young two children in Puerto Rico for he provided, whom Id., that his role in the crime In was minimal. at 77-87. closing, jury counsel asked the mercy, emphasizing show Id., 122, 124, appellant had a at family. 126. The trial court (e)(7) instructed the on mitigating two circumstances: (e)(8) participant” mitigator “minor and the “catch-all” miti- Id., gator. at 144. The jury found neither circumstance. At the PCRA hearing, appellant presented testimony experts family two and five members who asserted should have been at penalty phase, called as that of trial well Latterner, appellate counsel. Dr. a neuropsychologist who examined appellant, IQ testified had an in the range low borderline cognition cognitive capaci- had ty 5/25/00, 36, of a N.T. 13-year-old. Hearing, at 48. She further testified appellant organic syn- had brain drome, memory impairment, and lack of impulse control. 21, 27, prior injuries, 38. She cited his history drug head abuse, hallucinations, id., 61-62, that at the opining “Any mitigation concerning other evidence of the character and record of the defendant and the circumstances of offense.” 42 9711(e)(8). § Pa.C.S. offense, suffering from an extreme appellant

time of the was and unable to conform emotional or mental disturbance was Id,, 47, 64-65,113. 42-43, Although to the at his actions law. and that his noting appellant having any problems denied Rico no psy- from Puerto revealed prior pre-sentence report 69-70, 74, id., Latterner concluded history, chiatric at Dr. pursued prior appel- have been psychiatric testing should Id., lant’s trial. at 62. (cid:127) Bernstein, examined neuropsychiatrist

Dr. a forensic who diagnosed appellant organic cogni- testified he with appellant, trauma, exposure, drug from toxin and resulting tive disorder Id., He had a per- at 138-40. testified exposure. control, disorder, from impulse and suffered sonality impaired impaired or mental disturbance an extreme emotional which him the crimi- appreciate his and rendered unable to capacity requirements. of his conduct or conform to the law’s nality Id., 148, 151, 142, 183, appel- He acknowledged at 174-75. school, testing and medical records revealed no prison, lant’s organic injury, brain regarding damage brain indicia 5/30/00, 541; Hearing, Hearing, N.T. at N.T. PCRA PCRA 5/31/00, 594; however, minimization of opined appellant’s at problems current mental health indicated did any “begin up a problems, layperson pick have and would hitting eight cylinders[,]” not be on all but [appellant] might there a N.T. probably “why problem.” would know 5/30/00, concluded, given appel- at 543. He Hearing, PCRA history, red of his neuro- “replete flags lant’s which was with deficits[,]” and other trial counsel should have commis- logical Id., 503; N.T. neuropsychiatric sioned a examination. at see 5/25/00, Hearing, at 187. sister, brother, cousin, ex-wife, mother, Appellant’s girlfriend appellant’s upbringing young testified about infant, sickly Hearing, life. N.T. PCRA adult id., 370, 411-12, at marriage, born into an abusive 366-69, 414-15, his father abused him emotionally id., 372-73, 377-78, 432-34, him on hitting even physically, the head. left to be raised Appellant two, no age virtually at the paternal grandmother Id., 373, 380, 416, contact parents with his until he 11. at was school, Appellant’s 425. sister in picked testified he was on id., 384, at appellant’s and cousin testified appellant injured as a child when he hit in the head a bat with Id., during a ball game. Appellant’s at 480. brother and sister testified in motorcycle rode a his fell off youth, Id., frequently, 385-86, and a never wore helmet. at 437. appellant’s Both mother girlfriend and appellant’s testified Id., grandfather 416, been mentally had ill. at 453. brother, sister,

Appellant’s and cousin there testified were in changes appellant’s began behavior when he cocaine using adult; as a young nervous, he became agitated, and paranoid. Id., 386-88, 438-39, at 483-84. Appellant’s cousin and girl- friend testified appellant never a wore mask when working with chemical job fumes his as a mechanic during his id., teenage years, at and appellant’s said he ex-wife was exposed to fumes job, and chemicals at his N.T. PCRA 5/26/00, Hearing, 292-93, at and he often suffer from would Id., dizziness and headaches. at 290. He once suffered a temporary Id., bout of*blindness following dizzy spell. at 294-95.

Appellant’s ex-wife testified appellant had halluci- auditory nations, id., at and he once hallucinated seeing the devil and Id., was so traumatized he soiled himself. at Appel- 291. lant’s girlfriend also testified concerning appellant’s auditory hallucinations, N.T. 5/30/00, 454, 457, PCRA Hearing, at said he Id., was often agitated by nightmares. at 455. She also Id., confirmed drug use. at 456. mother,

Appellant’s brother, and cousin testified trial coun- them, sel never contacted but that they would have been willing to testify appellant’s on behalf had they been asked. Id., 420-21, 439, at 485. Appellant’s sister testified that although trial her, counsel interviewed he did not ask her about appellant’s background; however, she would have testi- fied concerning Id., these facts had she been asked. at 389- 90. Appellant’s ex-wife testified she would have been willing to testify trial, for appellant at but trial counsel never asked 5/26/00, her. N.T. PCRA Hearing, at 293. experi- he had although years’

Trial that counsel testified ence, cases, this had his first criminal been which included 610-11, 660. at Hearing, N.T. PCRA capital case. times, having lengthy or 20 He met with about 15 Id., he acknowledged Counsel discussions him. id., brother, cousin, mother, not appellant’s did contact about sister and ex-wife question appellant’s and did not childhood, abuse, drug perform- head injuries, 624-27, He these acknowledged ance school. born of Counsel testified strategy. omissions were family provided by appellant’s although the information hearing something at the their affidavits id., at during penalty phase, have to know would wanted 633, presented testimony appellant’s he not would have in crimes appellant’s prior been girlfriend, who had involved image of appellant Puerto and have marred Rico would Id., he testified a stable at 703. Counsel family-man. having appellant no for not psychologically had tactical reason evaluated, id., expert testimony regarding at and the at have been relevant damage brain would appellant’s organic Id., at penalty 634. phase. however, he testimony, revealed portions of counsel’s Other evidence, inquiries in his regarding mitigation was remiss him and his supplied on information appellant based him appellant said gave appellant. interactions with Counsel id., 647-48; at he had family, little about his very information family, from most impression estranged was his appellant Rico, did not in Puerto and seem want whom were Id., appellant counsel involve them. at 620-23. When asked his help if there was Puerto Rico who could anyone no, id., 648, 703; case, it counsel’s appellant said at was contacted, family his al- did not impression appellant want Id., he counsel from so. though explicitly doing forbade never had further because appellant at 704-05. Counsel testified had family his grandmother been raised his and immediate thought in his he upbringing, not been involved significantly concerning little relevant information offer they would have Id., appel- appellant’s childhood. at 690. Counsel also asked dropped out schooling appellant lant about his and was aware Id., of school to a mechanic. at 649. work as use, he Regarding drug counsel testified would this as he about mitigation have offered evidence had known id., it, 652; however, at counsel stated he if he appellant asked drugs was on commission of the during planning and offense, Id., 627-28, appellant responded he not. at 652, 698-99. counsel asked if used appellant drugs When had occasions, on other such as during Jersey travels New and Florida he co- where committed other crimes with his defendants, Id., 628, 652-54, said he appellant had not. at Thus, 698-99. counsel concluded did not have a appellant Id., drug problem. at health,

Regarding appellant’s mental counsel asked appel- lant he any whether had medical problems anything defense; would be in his helpful appellant said he had “noth- Id., ing like at that.” 620. Counsel asked if he appellant ever difficulties, had emotional or psychiatric re- Id., sponded had not. at 654. said nothing hallucinations, id., auditory about his or visual there from his nothing demeanor would have led which counsel to any type believe he had of mental disorder.

658, 660-61, 691-92. “very Counsel stated id., pleasant” and “even tempered,” although appellant never, ever, depressed situation, seemed because of his “he ” Id., never exhibited ... any unusual behaviors.... Counsel noted he had previous immediately clients who he had sought conduct, to upon have evaluated based their but appel- lant illness, did not such of mental display signs and counsel never doubted to ability participate his defense. Thus, counsel psychiatric did not seek a evalua- for appellant. tion

Appellant 362, relies on Taylor, Williams v. 529 120 U.S. 1495, (2000), S.Ct. 146 L.Ed.2d 389 in arguing counsel was required to investigate reasonably mitigating of evidence abuse, family childhood dysfunction neglect, and and mental health deficits. if he argues even told counsel he nothing evidence, had to offer in the ofway mitigating counsel

318 background to duty investigate independent

still had an Brief, at phase. Appellant’s penalty for the preparation 364, 909 Gorby, v. 589 Pa. in Commonwealth Recently, 35. Jones, 202, 912 (2006), v. 590 Pa. A.2d 775 Commonwealth v. (2006), Wiggins this cited Williams A.2d 268 Court (2003), 2527, Smith, 510, 471 123 156 L.Ed.2d 539 U.S. S.Ct. an to obligation counsel have capital “for the that proposition developing mitiga- reasonably available avenues all pursue Jones; 790; at see also Gorby, at tion evidence.” however, trial, 1996 these At the time of appellant’s decided, investigation degree not been cases had had to not be deemed ineffective capital for counsel required “A fair assess currently required. to the extent not evolved effort be requires every attorney performance ment of to recon hindsight, effects of distorting to eliminate the made conduct, and challenged circumstances of counsel’s struct the at perspective the conduct from counsel’s to evaluate Bond, 588, 33, A.2d 51 v. 572 Pa. 819 time.” Commonwealth 2052) Strickland, 689, (2002) (emphasis 104 S.Ct. (quoting added). case what progeny, regarding to and its law

Prior Williams not as during penalty phase counsel required Rollins, See, v. 558 today. e.g., Commonwealth exacting (1999) (counsel 532, 435, not ineffective for 448 Pa. 738 mitigating mental health evidence where present to failing mental appellant might no reason to know have counsel had Holland, 175, Pa. 727 A.2d v. Commonwealth problem); (1999) (counsel call mental 563, failing not ineffective psychiatrist’s phase, where forensic expert penalty health reports appellant indicated previous pre-sentence reports illness); v. mental Commonwealth major did not suffer from (counsel (1998) Howard, Pa. 719 A.2d had notice had no counsel ineffective where evidence Uderra, illness); any mental (1998) (counsel failing not ineffective for history psychological problems investigate appellant’s counsel). such information never revealed where cannot be as- Thus, of counsel’s actions the reasonableness sessed under requirements subsequent enunciated to the time of such actions. counsel,

Trial during his numerous interactions appel- lant, illness, any signs never detected of mental and appellant never gave any counsel useful information about his childhood Carson, family when asked. See Commonwealth v. 501, (2006) (in 220, evaluating reasonableness of counsel’s investigation, court must remember counsel’s deci- sions may depend heavily on information provides his client to him). Appellant’s prison no psychiatric records revealed prob- lems other than situational depression; various reports indi- cated appellant having hallucinations, denied ever drug abuse problems, injuries. or head one of Although the reports recommended appellant receive substance abuse counseling because he use, was denial about his past drug see Psychiat- ric 76, Evaluation R.R. Ex. denied having been on drugs questioned when counsel him about drug use at offense, the time of the and appellant offered nothing further regarding past Overall, his cocaine use. ap- pellant’s records showed no prior psychiatric history; one of psychiatric reports indicated although appellant im- mature, impulsive, defiant, he oppositionally mentally ill. See Report, Undated R.R. Ex. at 74-75. Appellant’s school records nothing revealed other than his a being poor student. See R.R. Ex. 35. Under these circum-

stances, counsel cannot be deemed ineffective for failing to pursue psychiatric evaluation or to investigate evidence of childhood, alleged injuries, head and substance abuse.18 Recently, Supreme upheld United States Court a district court’s "finding poor quality that the alleged [the mitigating defendant's] prevented evidence making him from 'a prejudice.” colorable claim' of - U.S.----, -, Landrigan, Schriro v. 127 S.Ct. (2007). Landrigan, L.Ed.2d 836 In the defendant had instructed coun any sel not present to penalty phase, evidence at the but later claimed counsel was failing ineffective for explore mitigating additional Id., evidence. alleged 1938. The exposed drugs defendant he was útero, mother, alcohol in subjected abandoned his birth to his abuse, adoptive mother's began substance his own substance abuse early age; violence, at an biological family’s based on his history may claimed he genetically also have been predisposed to violence. strategy testified trial show

Counsel crime, or that if he did participate, not a in the participant was Hearing, minimal N.T. PCRA peripheral. his role and was to do at the 5/31/00, this attempted at 636-37. Counsel strategy another hindsight, the fact that penalty phase; not render him ineffec- may been more effective does have coun- claim of trial Accordingly, underlying tive.19 appellant’s meritless, to there is need sel’s and no ineffectiveness is McGill, claim. more of this development remand for still to devel- investigate, tñal counsel ineffectively Whether failed George Lopez’s the op, present and evidence of co-defendant crimes. history involvement in similar of investigate pres- to and Appellant claims trial counsel failed at penalty of similar crimes the Lopez’s history ent evidence reversing Appeals’ grant Circuit of an at In Ninth Court of 1943. claim, hearing Su- evidentiary on defendant's ineffectiveness weak, "mitigation preme evidence Court noted the defendant’s acquainted exceedingly postconviction was well [his] court belligerent at past and had first hand his behavior.” violent seen Quoting Appeals panel, which affirmed 1944. the initial Court of had " stated, record, review, Supreme 'On the denial of Court this way assuring genetics made he is defendant] the court that [the ” prejudice.’ very helpful. no Id. could have been There was not (9th Cir.2001)). Stewart, Landrigan (quoting 272 F.3d Here, hearing, appellant’s claim was evaluated at a ineffectiveness prejudice; how- PCRA court he could not establish concluded ever, demonstrates, alleged mitigating Landrigan where evidence helpful, so it have been no colorable claim is weak that could not established, hearing required. and a not ineffectiveness is (2004) Malloy, 579 Pa. 856 A.2d 767 Commonwealth v. Cf. (counsel failing penalty prepare phase to where found ineffective for hours, mitigating appellant only he met with for four introduced no age participant appellant’s than and role as minor evidence other crime, penalty presentation phase at included affirmative counsel’s no only argument stipulation, and Common- evidence at brief all— concluded, sought Malloy, only aggravator). one In we "coun- wealth cursory appellant's a review sel failed to so much as conduct id., background[,]” effort at and "undertook little or no affirmative id., 786; here, contrast, phase[,]" penalty at counsel aimed at the spent interviewing appellant, family time asked him if his could much assistance, sister, spoke attempted present appellant’s be of to to family-man whose involvement in the crime had been as a circumstances, mitigating peripheral. argued and the Counsel two sought aggravators. four contends this evidence would have demon- phase; appellant culpability “the lion’s share” of and would Lopez strated bore theory only the defense a supported have this argues minor in the crime. further participant constituted material the Common- Brady20 evidence which him. duty provide wealth had a assertion, not

Contrary Lopez previously murder; instead, robbery attempted pled convicted simple Opinion, nolo contendere to assault. See PCRA Court 20; 5/31/00, N.T. at 677-78. Fur- Hearing, thermore, trial counsel testified he not this would have wanted jury, Lopez’s eyes evidence before the as “if blackened [he] id., then [appellant’s] eyes,” being this [he] blacken[ed] Thus, joint trial. counsel would have wanted show crime, Lopez capable appellant was of such because was reason, associated For the Lopez. appellant’s same fails, argument that this Brady evidence constituted material as Lopez’s prior history would have made look worse rather than him. Remand for exculpating develop- further McGill, ment of these claims is meritless unwarranted. See at 1026. improperly precluded presenting

Whether was from consider, arguing jury and should as mitigation, lesser sentences on imposed planned the individuals who and carried out the murder Bolasky. David of improperly precluded claims from consider, arguing at the that the penalty phase jury should mitigation, the lesser sentences on imposed co-conspira his tors. This issue presented rejected and in Lopez’s PCRA 338, appeal; we cited Commonwealth v. 520 Pa. 554 Frey, (1989) 27, 388, 33 Haag, Commonwealth v. (1989), which held the fact a co-defendant received a sentence less than death is not a mitigating circum stance for of purposes sentencing another defendant for the noted, same crime. We “There is no circumstance mitigating provides which for the of type comparison appellant suggests; Brady Maryland, 373 U.S. 83 S.Ct. 10 L.Ed.2d 215 20. (1963). not encom- ‘catch-all’ circumstance would mitigating even the evi- sentences because such co-conspirators’ of pass evidence ‘the character and record of nothing has to do with dence ” of his offense.’ Lopez, or ‘the circumstances defendant’ 9711(e)(8)). Furthermore, § (citing A.2d at 471 Pa.C.S. ex- pled guilty the fact Barbosa appellant overlooks life, Moreno bar- plea for the lesser sentence change for his exchange sentence 40-year for a 20 to gained Romero, 1016; N.T. enforcement. See at cooperation with law Thus, claim is Hearing, meritless, development need not remand for further we McGill, at 1026. argument. this jury to consider allowing the trial court erred Whether Captain Bucarey inadmissible statement Jorge Barbosa’s during penalty phase proceedings. incorporation next claim involves the

Appellant’s phase penalty phase. from the into the guilt certain evidence Barbosa’s state incorporation prior Appellant argues ment, penalty phase preju read at the into the guilt phase, only appel him because the statement was the evidence diced killed to killing Bolasky in the participated lant (d)(5) As the found the “witness prevent testimony. (e)(7) not the “minor aggravator, participant” elimination” but statement “single claims Barbosa’s mitigator,21 appellant elimination’ handedly aggravator established ‘witness simultaneously gutting [a]ppellant’s the Commonwealth while (em Brief, Appellant’s ‘minor participant’ mitigator.” phasis original). contention, statement appellant’s to Barbosa’s was

Contrary in the appellant’s participation not the evidence of direct only Bolasky; testimony the of Moreno robbery strangling Daniel was more than a Lopez established Furthermore, these participant killing. minor the wit- the killed to testimony prevent nesses’ established victim was Therefore, and the others. as testimony against appellant his relatively participation in the act "The defendant's homicidal was 9711(e)(7). § minor." 42 Pa.C.S

328 erroneously the the of Barbosa’s guilt incorporation phase, penalty phase admitted statement into harmless prior the Romero, (citing Foy, error. at 1019 Commonwealth v. 531 (1992) (error 322, 1349, Pa. 612 A.2d 1352 is harmless where merely evidence is of substan- improperly admitted cumulative evidence)). similar, claim tially properly Appellant’s admitted therefore, McGill, meritless; is is remand unwarranted. See Whether death sentence was based uncon- on the (d)(5) stitutional the application “witness elimination” aggravating circumstance. (d)(5)

Appellant claims the found improperly “wit- circumstance, ness aggravating elimination” because there was no Bolasky evidence to prevent testifying was killed his rather, against appellant; appellant’s co-conspirators testified Moreno, they to Bolasky prevent killed identifying his who recognized his as tenant. also no claims there was direct the killing evidence occurred for such purpose, required there pending prosecution when is no time of at the 445, murder. See v. Strong, Commonwealth 522 Pa. (1989). 479,

In this Court Strong, reiterated in Common- holding 529, wealth v. Appel, (1988), 517 Pa. 539 A.2d 780 that the (d)(5) aggravating bemay circumstance direct established evidence killing resulted from intention to eliminate potential 2). Strong, (quoting witness. 784 n. Appel, at Previously, the rule was that must be evidence introduced killing prevent testimony victim’s in a pending grand jury proceeding. or criminal See Commonwealth v. Caldwell, (1987); Pa. 532 A.2d Common- (1987). wealth Crawley, 344-45 The on guilt relied Barbosa’s testimo- phase (d)(5) ny circumstance; aggravating establish Barbosa plan testified the initial to assault but only then Bolasky, they kill him him prevent decided to from identifying tenant, Moreno, nephew: who was Lopez’s

324 But then he just

A. matter him. assaulting It was of no, had be killed. came and said he to Q. said that? Who

A. Mr. Ivan Lopez. had killed? say Bolasky he Mr. to be

Q. why Did alive, [Lopez’s] nephew if had left him then A. Because we jail to for the assault. go would Trial, 3/15/96, N.T. further testified on cross-examination:

Barbosa gentleman the me have to kill [Lopez] A. And told we alive, then his stays nephew because if the gentleman jail, to gonna go understand?

Id., at 85. the have inferred

Although fact-finder could all his Bolasky prevent identifying his killed co-conspirators if conspirators stood to lose assailants because all of the his them, there was no direct remained Bolasky implicate alive prevent testimony was killed Bolasky evidence testimony Lopez’s established against appellant; Barbosa’s However, identify Id. that the Moreno. concern victim would established, (d)(5) jury even if the aggravator cir- mitigating and no aggravating other circumstances found cumstances; 42 still have been death. See would penalty 9711(c)(l)(iv); Christy, 511 Pa. § Commonwealth v. Pa.C.S. (1986) (since one jury aggravating A.2d found 842 circumstances, death no sentence mitigating circumstance and held another circumstance is upheld though aggravating even invalid) Pa. (citing Beasley, (d)(5) Thus, (1984)). aggrava- even without tor, differed, not have so the result of the would penalty phase development need not remand for further we McGill, at 1026. claim. See (d)(6) existence jury improperly

Whether found aggravator. trial instructed the improperly claims the court (defendant (d)(6) aggravating circumstance regarding felony), because killing during perpetration

committed actually an and did not merely accomplice to murder thus, jury improperly aggra found this strangle Bolasky; in contends the trial court should have Appellant vator. Lassiter, 554 jury, pursuant structed the (d)(6) 586, (1998) is (plurality), aggravator Pa. 722 A.2d 657 one of first murder inapplicable guilty degree who found killer. accomplice, as an but not as the actual 9711(d)(6) may applied Lassiter held not be to an “[§ ] not ‘commit’ the in the accomplice killing who does sense it to or it.” at 662. if bringing completion finishing Even guilty degree found as an to first accomplice (d)(6) murder, thereby rendering aggravator inapplicable, circumstances, 9711(d)(9) § aggravating least two other (12), existed, found; no mitigating circumstances were still been 42 penalty would have death. See Pa.C.S. 9711(c)(l)(iv); Thus, § Christy, is unable to supra.22 phase establish the result of the differed penalty would have given, had Lassiter instruction been and further remand for development of his ineffectiveness claim in this regard is McGill, unnecessary. (d)(12) jwy improperly aggravator.

Whether found (d)(12) claims the jury improperly found (defendant aggravating circumstance of voluntary convicted 2503, manslaughter § as defined in 18 Pa.C.S. or substantially similar in any jurisdiction, crime other either before or at time offense). of instant The Commonwealth relied on prior manslaughter conviction Puerto Rico under 33 § L.P.R.A. 4004: Williams,

22. See also Commonwealth v. 863 Pa. (2004) (no n. 8 relief on claim where Lassiter Lassiter was decided after final, appellant's judgment of sentence became and at least one other aggravating mitigating circumstance and no circumstances were found). Markman, Commonwealth v. Cf. (2007) (trial give court’s failure to Lassiter instruction erroneous finding guilt where verdict sheet did not indicate whether was based (d)(6) principal accomplice liability, only aggravating on or and however, presented proved; light circumstance error harmless in (d)(6) specific only applied of trial court’s instruction that if "the killing” during perpetration felony). defendant committed a quarrel as a result of a sudden who kills another Any person for a fixed punished by imprisonment fit of shall be anger there be circum- aggravating of ten Should years. term stances, be increased to a may term established the fixed extenuating if there should be years; maximum of fifteen circumstances, years. to a minimum of six may it be reduced Id. voluntary man- of the Code defines Crimes

Section slaughter as follows:

(a) an Rule.—A who kills individual without person General if at the justification voluntary manslaughter commits lawful intense he is under a sudden and killing acting time of the by: serious resulting provocation from passion (1) killed; or the individual kill, (2) the actor endeavors to but another whom the accidentally or causes the death of individ- negligently ual killed. 2503(a). §

18 Pa.C.S. Pennsylva- intent to kill is an element of argues Appellant an element manslaughter, of but is not voluntary nia’s crime therefore, of the manslaughter; Puerto Rico’s crime under 9711(d)(12) §as re- substantially crimes are not similar two claim, however, intent to kill Contrary appellant’s to quires. 4004; § it under 33 L.P.R.A. is manslaughter is an element of not a element. Pueblo v. required that is See premeditation (1992). Morales, Rico’s crime 132 D.P.R. 261 Puerto Moreno 4005,23 § only requires 33 L.P.R.A. voluntary manslaughter, not the element of intent as re- which is same negligence, Rivera, § 2503. Pueblo v. 123 by Pennsylvania’s See quired (1989). However, convicted under D.P.R. 739 (voluntary manslaughter); § 4005 (manslaughter), § 4004 therefore, is negligence, the intent element is not substan- meritless, claim is § similar to 2503. As tially McGill, unnecessary. remand is further acting negligence provides: "Any person who 23. Section 4005 who, felony, amounting to a in the commission of an unlawful act not another, punished by imprisonment the death of shall be causes year eight § fixed term of months." 33 L.P.R.A. 4005. one

327 is to his Whether entitled death sentence relief from prosecutor’s closing argument because the improper im prosecutor claims the made several proper arguments during penalty that trial phase closing, object, counsel ineffective for failing appellate failing counsel was ineffective for to raise the issue on direct appeal. Our standard of review is settled: well

“Challenged prosecutorial must be comments considered they the context which were made.” [Commonwealth v.] (Pa.1998) [763,] King, Pa. A.2d In [554 331] [ ]. prosecutor, statements made reviewing by we have noted that: be free prosecutor present argu-

[A] must his or her logical ments with force and vigor. only Reversible error if prosecutor exists deliberately has attempted destroy objectivity the fact finder such that the unavoidable effect of the inappropriate comments would be to create such bias toward the hostility defendant that the could not render a true verdict. Miles, [1295,]

[Commonwealth Pa. v.] [545 500] (Pa.1996) (citations omitted) ]; also [ see [Commonwealth [294,] (Pa. v. Pa. Paddy, ] 800 A.2d [569 47] [ 2002) “Furthermore, during penalty phase, ]. where presumption innocence no longer applicable, prose cutor is permitted greater even latitude presenting argu King, ment.”

Moreover, even if alleged statements the prosecutor may been have improper, we have held that “not every intemperate for by uncalled remark a re prosecutor Miles, quires a new trial.” Indeed, 681 A.2d at 1302. “where the properly guilt admitted evidence of is so over whelming and the of prejudicial effect the error is so insignificant that it comparison beyond is clear a reason able doubt that the error could not have contributed the verdict, then the beyond error is harmless a reasonable doubt.” Id. (citing Story, Commonwealth v. Pa. [476 391] 155, 166 (Pa.1978)). 383 A.2d Robinson, Pa.

(2004). jury’s the sense prosecutor claims the diminished

Appellant by stating, the responsibility imposing penalty for death of are This something you doing. is not that decision “[T]his are making. This decision something you is not decision 8, 1995, by George Lopez Ivan January made on was However, Trial, Rios N.T. R[o]mero.” Edwin entire state- prosecutor’s of the portion isolates a context; continued, prosecutor it the ment and takes out done, is done. they have “The law is written stone. What a job things those and render correct apply Your is to two Thus, the prosecutor suggesting Id. the verdict.” determining for the abdicate its whether jury responsibility warranted, arguing appel- but rather was penalty death for the victim’s responsible co-defendant lant were claim Appellant’s consequences. death and must face the meritless. the prosecutor improperly argued the

Appellant argues of a required imposition of the offense alone circumstances actions “sealed this appellant’s death sentence when stated such actions a verdict.” “require[d] [death] verdict” and However, only the portion isolates appellant again The the argued prosecutor entire statement. prosecutor’s (d)(6) during (killing perpetration committed aggravator sentence; a death so felony) alone was sufficient to warrant killing during the victim doing, appellant’s he stated permit robbery an circumstance which would aggravating permissible death As this was jury impose penalty. (verdict 9711(c)(l)(iv) must § be argument, see Pa.C.S. least circum- jury aggravating of death if finds at one sentence one or more aggra- stance and no circumstances or mitigating circum- vating outweigh any mitigating circumstances which stances), claim fails. vouched

Appellant argues prosecutor improperly conveyed impression credibility police witnesses supported to the which presented there was evidence not quote any does not charges against appellant. statement; however, the prosecutor’s specific portion the a summary contains transcript page merely he references Hanna police the actions of Detectives investigative Trial, O’Donnell, both at trial. N.T. who testified context, at 110. Read in this was not a reference to evidence record, nor it for the officers’ vouching outside simply it a of the events that credibility; narrative This meritless. produced Moreno’s confession. claim is Appellant prosecutor argued argues improperly appel- posed lant a if to life danger imprisonment: sentenced significant Edwin Rios has also a compiled history R[o]mero of prior felony which violence or the convictions involved threat of Why violence.... is that an circum- aggravating stance? Because it shows that Edwin Rios has R[o]mero been persistent in his to curb his violent behavior. refusal Again and again again, Mr. has been con- R[o]mero victed that involve or the violence threat of felonies here, violence. pattern There is a and gentlemen, ladies and that itself, by itself, all is an aggravating circum- again, itself, stance. And all that once aggravating sufficient circumstance is you returning penal- warrant a ty of death in this case. added). at 112(emphasis

Again, portion isolates of the prosecutor’s state- context, ment and only takes it out on the focusing under- portion lined of the above in its quotation. entirety, Read (d)(9) statement clearly argument “significant is an for the history of violent aggravator, why felonies” this explaining an aggravating circumstance and arguing its relevance in case; argument it is not an of future dangerous- ness. prosecutor argues introduced improperly vic- impact

tim evidence he experi- when referenced the victim’s life; ence the last of his seconds he further contends prosecutor urged improperly vengeance, to exercise showing appellant mercy same showed victim. The prosecutor stated: that David thing to the last

I to think back you want you Do know what dying. he knew he was Bolasky saw as saw, things the last two of Bolasky David thing the last Think you.... in front of sitting right They’re he saw? mercy. they you ask about that when Id., at 115. permissible it is determined specifically

This has Court to ask the for a phase prosecutor during penalty the victim. mercy the same he showed the defendant show 861, Basemore, 512, Pa. 582 A.2d 870 v. 525 Commonwealth 1102, 1191, denied, 117 L.Ed.2d (1990), 112 S.Ct. cert. 502 U.S. 549 Pa. (1992); Washington, v. see also Commonwealth 432 Jones, (1997); 546 400, v. 12, 415-16 Commonwealth A.2d 700 (1996) 1181, v. 161, (citing 1204 Pa. 683 (1983)). 288, claim 474, This 467 A.2d 301 502 Pa. Travaglia, meritless, prosecutorial all of claims appellant’s as are is misconduct; development for further remand accordingly, is performance counsel’s respect appellate claims these McGill, at 1026. unnecessary. See and umisual sentence is cruel death appellant’s Whether retarded. appellant mentally because punishment to the death subject he cannot be claims retarded; argues, he further mentally he is because penalty issue, the this investigate counsel’s failure because of trial retardation, and of his “borderline” heard evidence jury never appeal. claim on direct present failed to this counsel appellate 304, 122 153 536 S.Ct. Virginia, v. U.S. Atkins (2002), retarded crimi mentally held execution of L.Ed.2d Atkins was Although Amendment. Eighth nals violates the held sentencing, trial and this Court after decided a certain prohibiting a new rule law since Atkins announced because of for a class of defendants punishment category rule of status, exception general an to the it fell under their Miller, v. nonretroactivity. See Commonwealth (2005) Lynaugh, (citing Penry 629 n. 5 (1989)). 2934, 106 L.Ed.2d U.S. S.Ct. Miller,

In the petitioner, having been denied relief after a hearing on his first PCRA a petition, petition, filed second seeking relief under Atkins. The relief granted PCRA court evidentiary hearing, without an reasoning documentary evidence, evidence, the penalty phase and the pre evidence sented at the petitioner’s hearing first PCRA established the petitioner’s mental retardation by preponderance of the applied evidence. The PCRA court “mental definitions of ly retarded” set forth the American Psychiatric Association (APA) and the American Association of Mental Retardation (AAMR).24 Miller, at 626-27. This Court vacated and re id., 638; manded for further proceedings, although we agreed with the PCRA court that the petitioner could use either classification of “mentally retarded” to establish his claim, we concluded the testimony presented at the first hearing occurred the context of establishing the petitioner from organic suffered brain damage as well as mental retardation. at 632-3S.25 The offered testimony petitioner’s expert equivocal on the issue mental retardation, since he testified the petitioner functioned in the “borderline or “mentally retarded” range. retarded” We not ed: is a critical difference

[T]here between these classifica- two tions, since if a defendant is having classified as borderline intellectual he functioning, would not automatically be con- sidered “mentally retarded” under Atkins unless he also significant showed deficits in adaptive behavior. January

24. As of the AAMRis now known as the American Developmental Association on Intellectual and Disabilities. decided, 25. At the lime years passed Miller was over three had since Atkins announced each state procedures had to set standards and case; adjudicating capital the mental retardation of a defendant in a however, introduced, although legislation bills had been no been had Miller, (Eakin, passed. J., Miller, concurring); at 633 see also at date, legislation 633 concerning subject n. 11. To this has still not been passed, "languish and cases continue to and courts await action which Miller, (Eakin, J., forthcoming.” has not been concurring). at 633 In case, regardless this fails, employed, appellant's of what standard is claim retarded,” which, argues as mentally he he is "borderline infra, discussed is insufficient to warrant relief. hearing evidentiary an Id. remanded for Accordingly, we the mental retardation issue. to address specifically at Here, experts’ testimony appellant presented two issues of mental retarda- testified on the hearing; they PCRA illness, tion, damage, capacity mental organic brain degree testimony concerning intent. fluctuated form This Hearing, N.T. PCRA impairment. mental Cf. (Dr. not 5/25/00, testimony at Latterner’s that “do[es] 36 id., (Dr. retarded”), Latter- at 44 [appellant’s] mentally believe bor- “functioning is in the low testimony appellant ner’s that id., (Dr. that testimony 77 Latterner’s at range”), derline retarded, brain “Clearly, and he’s mentally [sic] [appellant’s] that, id., (Dr. testimony 94-96 Latterner’s damage”), and at is appellant retarded despite IQ mentally range, two scores id., (Dr. see retarded); also mentally at Bernstein’s not retarded, mentally border- testimony appellant “mildly that id., (Dr. retarded”); testimo- Bernstein’s mentally line at Retardation, Mild that suffers from “Mental ny appellant id., (Dr. that testimony appel- Bernstein’s Severity”); at retarded”); Hearing, N.T. mentally lant is “borderline 5/30/00, (Dr. Latter- Dr. disagreement Bernstein’s retarded); mentally that is not N.T. PCRA ner (Dr. 5/31/00, testimony Hearing, at 576-77 Bernstein’s him, he’s be mild test you going going are “[s]ometimes him, MR[, to be are to test you going going he’s s]ometimes (Dr. id., that “de- borderline”); testimony Bernstein’s are ... on a you on of the pending giving, version [test] which borderline, and on he’s day, day, to be a bad good going he’s retarded”). The mentally to be going mildly Commonwealth’s Cooke, Dr. testified was “in the borderline expert, Hearing, N.T. PCRA range, range,” in the retarded that and in the to indicate “nothing at there was records activities, of in of impaired range he would fall into the terms he either, my it’s that is of borderline daily living, opinion so not retarded.” at 1088-89. intelligence, mentally but he is testimony The credited the PCRA court retarded, mentally noting: not moral,

Although legal, philosophical arguments and are and interesting thought-provoking, this issue concerning these are to this case since Defendant issues irrelevant mentally does not fall into either retarded or category [of mentally ill]. 9/15/00, at 10. Opinion,

PCRA Court he is re- Significantly, appellant argue mentally does tarded; rather, mentally he labels himself “borderline retard- (“Mr. Brief, Appellant’s ed.” See at 38 Romero is borderline retarded”); id., (“the mentally at 39-40 never heard retardation.”). about mental anything [ajppellant’s borderline Miller, being Under “borderline retarded” does not mentally a automatically place person “mentally retarded” cate- gory; adaptive there also have to be deficits in “significant Miller, behavior.” at 630 n. 633.26 The an ex- hearing testimony PCRA revealed had Rico, in Puerto bought wife with whom he had children and a house, he could fix mechanical diagnose problems and with cars, able to Jersey and was travel to cousin New around, him job. and show him find a See N.T. PCRA helping 5/25/00, 84-85; 5/31/00, at Hearing, Hearing, N.T. PCRA Cooke, The Commonwealth’s Dr. noted: expert, part defining The other retardation is or not an whether impaired daily living. they individual is Can activities job? they they hold a Can make Can travel purchases? independently? Things they that nature. Can communi- cate And I effectively? nothing see the records to indicate that he would fall into the in terms impaired range activities, either, of daily living, my opinion so it’s that he intelligence, is of borderline but he is not retarded. mentally N.T. Hearing, at 1088-89.

Thus, Miller, unlike there hearing testimony which retardation, heard on the issue of the experts mental and adaptive language money concepts, 26. The AAMR lists skills as rules, responsibility ability preparation, money to follow meal management; significant requires the APA's DSM-IV Manual limitation communication, self-care, following in at least two of the areas: home skills, resources, living, social/interpersonal community use of self- direction, skills, work, leisure, health, safety. functional academic Id., at 630 n. 8. 334 court’s alone. The PCRA IQon test results rely

did not supported is mentally is not retarded appellant conclusion that fails, remand underlying claim record. As by counsel’s appellate the claim of unnecessary develop McGill, at 1026. ineffectiveness. See his conviction is entitled to Whether relief from de- the errors the cumulative because sentence effect of herein. scribed all the cumulative effect of claims the

Finally, appellant However, this has him to relief. Court errors entitles alleged collectively stated, may number of claims “no repeatedly failed individually.” if could not do so Common- they attain merit (1992) 265, 716, Williams, wealth v. in (emphasis original). relief, affirm is not entitled we

Having found Prothonotary and direct the order of the PCRA court to the record of this case complete to transmit the this Court 9711(i). § 42 Pa.C.S. Pennsylvania. See Governor affirmed. Order join the opinion. and FITZGERALD

Justice CASTILLE in concurring opinion files a which Chief Justice CAPPY joins. BAER Justice dissenting opinion concurring files a

Justice SAYLOR joins. in Justice BALDWIN which CAPPY, concurring. Chief Justice legal of the opinion exception I join majority dissenting Saylor’s concurring and raised Justice point agree Saylor Appel- I with Justice opinion. Specifically, 362, 120 v. 529 U.S. S.Ct. may rely Taylor, lant on Williams (2000) Smith, Wiggins 539 U.S. 146 L.Ed.2d 389 (2003), in of his support 156 L.Ed.2d 471 123 S.Ct. failing adequately ineffective for claim that counsel was clearly al- evidence as this court has investigate mitigating Concurring and Dissent- past. such reliance lowed this court has previously out that ing Opinion (pointing 5-7 rejected perspective regarding Williams and majority’s Pa. Wiggins Hughes, Commonwealth v. (2004)). Nevertheless, case, I join this result of the

majority on issue I that the opinion agree quality this because proffered of evidence that in of his claim of support for failing adequately investigate counsel’s ineffectiveness to present and to mitigating justify evidence was too a new weak phase penalty hearing.

Justice this joins concurring opinion. BAER SAYLOR, Justice concurring dissenting. and I concur in the as to Appellant’s guilt-phase result claims and as to respectfully penalty. dissent

My on principal difference claims penalty relates to Appellant’s claim of ineffective assistance of counsel concern- ing counsel’s investigation A mitigating plurality evidence. of Justices Appellant may concludes that not rely upon 362, 396, 1495, 1515, Williams v. Taylor, 529 U.S. 120 S.Ct. (2000), Smith, 146 Wiggins 510, L.Ed.2d 389 v. 539 U.S. 123 2527, (2003), S.Ct. 156 471 L.Ed.2d Commonwealth v. Gorby, 364, (2006), Jones, 589 Pa. 909 A.2d 775 or Commonwealth v. 202, (2006), 912 A.2d 268 as for his support argument that counsel to required investigate evidence childhood abuse, family dysfunction and neglect, and mental health and intellectual 317-19, deficits. Lead Opinion, See 938 op. at 387-88. The plurality rationale is that those cases had not been time of 1996, decided in Appellant’s trial and “[p]rior to its progeny, Williams and regarding case law what required during counsel was not penalty phase as exacting as today.” Id. however,

Such perspective, rejected in Commonwealth Hughes, 274, (2004). There, v. 581 865 Pa. A.2d 761 this Court applied Wiggins in Williams counsel’s conduct connec- tion with a trial that in 56, occurred at 361-62 See id. n. 865 A.2d at 813-14 In response n. 56. to dissenting opinion crafted along the lines present same as the majority’s reason- ing, the Hughes majority explained Wiggins that

336 review, context of collateral issued

Williams were also therefore, trial, deci- after those many occurring years con- prevailing federal represent sions did not innovations Furthermore, we that well explained stitutional law. id. information ability present trial the before the character, the cir- background, a defendant’s respecting a constitutional cumstances of the offense considered scheme, (citing see sentencing to a id. capital constituent valid 602-05, 2954, 2964-65, Ohio, 98 586, Lockett v. 438 U.S. S.Ct. (1978)), of counsel’s role significance and the L.Ed.2d recognized this information had been essential. evaluating Florida, 97 S.Ct. (citing See id. Gardner U.S. (1977)). Hughes Certainly, L.Ed.2d reasoned, reasonably maintained Court it could not be no by conducting little or obligation counsel could fulfill particularly of mitigation, into an available area investigation consequence critical may when such omission be of Indeed, very penalty Hughes explained, Id. imposed. in 466 U.S. Washington, relied Strickland upon standards 668, 2052, (1984), in guideposts as 104 S.Ct. L.Ed.2d 1976, trial in in occurring assessing performance counsel’s in in Wiggins a trial and regarding Williams conducted in trial that: involving provided a conducted investiga- It the to conduct a duty lawyer prompt is the to all explore tion of the circumstances of the case and facts to merits of the case avenues to relevant leading in the event of conviction. penalty n. 56 Pa. 865 A.2d at 813-14 Hughes, 581 at 361-62 n. (2d 4-4.1 ed. ABA Standards (quoting for Justice Criminal 1980) (The Function; Investigation Preparation)). Defense continued, commentary following As important, the Court this that: explains standard role to important has a lawyer

The also substantial to the prosecutor in factors both perform raising mitigating to court This cannot effec- initially sentencing. emotional tively general be done on the basis broad strength lawyer or on the of statements made appeals the defendant’s concerning the defendant. Information education, record, background, employment mental and stability, emotional like be family relationships, and the will relevant, mitigating surrounding will circumstances commission of offense itself. is essential Investigation to fulfillment of functions. these cmt). 4-4.1,

Id. ABA (quoting Standards Criminal Justice Hughes also noted that the ABA quoted standards above were in such, since 1971. id. As place we stated that the prevailing federal constitutional standards as articulated Wiggins pertaining duty Williams and “to counsel’s to investi gate as of his part penalty phase preparation not consti [do] Id.; tute a application retroactive of a new standard.” accord Mitchell, (6th Cir.2003) Hamblin v. 354 F.3d (explain ing Wiggins Court ... clearly “[t]he holds that it is not making ‘new on the law’ ineffective assistance of counsel either or in Wiggins the earlier case on which it relied for its standards, ”).1 v. Taylor Williams

Here, Appellant’s trial counsel repeatedly on acknowledged the post-conviction record that the case for mitigation that offered at the penalty phase See, meager. trial was e.g., N.T., 31, 2000, May at 651 (reflecting explanation, counsel’s “Well, much, know, we didn’t you have and that was the —that the problem, just, know, and so you we went with what we (“as had[.]”); id. at you record, can see from the didn’t we fire, have lot of ammunition know, you in the death penalty phase, you just with, so got know, to go you [sic]”). fundamentals of Nevertheless, basics as the lead opinion recognizes, counsel did not attempt contact most members, family did not records, obtain various life-history point, 1. On agree this I also plurality do with the that the older line Pennsylvania approving decisions was as consistent in limited inves See, tigations Smith, majority implies. as the e.g., Commonwealth v. 219, (1996) (plurality) 675 A.2d 1221 (awarding penalty a new hearing pursued where trial presented any counsel neither nor evidence state); 246, (Newman, of the defendant’s mental id. at 675 A.2d at 1234 J., ("[T]his concurring) repeatedly Court has found that the failure of case, adequately prepare, defense counsel to particularly capital in a is simply an performance abdication of the required. minimum We have specifically records, held a investigate failure to witnesses that and/or circumstance, may that mitigating have established a defense or consti counsel.”). tutes ineffective assistance of 338 a profession- not seek the advice of mental health

and did out Further, strategic he that had no acknowledged al. he contact failing tactical reason for to do so. When counsel did member, think to family Appellant’s a he did not ask about life history. See id. at 624. testi- plurality

The discounts these facts based on counsel’s not to Appellant as to his that did want mony impression that infor- family his believed had no useful they involve and mation, that forbade although acknowledges Appellant it never contacting family Opinion, counsel from members. See Lead 316-18, however, counsel at 938 A.2d at 386-87. op. Again, a would was faced with situation which Commonwealth in possession establish he likely strong aggravation, and little In such a circum- very mitigation effective evidence. stance, I do not that counsel limit reasonably can his agree non-binding prefer- investigation impressions based on 459, Malloy, Pa. 856 ences. Cf. (2004) (“The 767, 788 onus is a criminal upon types may evidence be relevant identify defendant what duty is require development pursuit. Counsel’s efforts[.]”). through such his own discover evidence fact, a undisputed The PCRA court found as and it was that men- hearing, is borderline post-conviction majority the edu- passing,

339 306, at ers. at 2244. While I agree See id. S.Ct. category that does fall within the majority persons per they as to whom there is a se rule that executed, cannot it to me argument be seems clear that an jurors to the that moral be Appellant’s culpability should light assessed in of his func- substantially limited intellectual potent have been than tioning mitigation would more Williams, presented case that at Accord trial. U.S. 398, at at 1515 (commenting reality S.Ct. that “the that retarded,’ mentally might [the was ‘borderline defendant] appraisal well have influenced the jury’s culpa- his moral bility.”). In terms of the prevailing governing prej- standard udice, I believe that “there probability is a reasonable that at balance,” juror least one Wig- would have struck different 2543, at gins, 539 U.S. S.Ct. the face such argument. evidence and regard appellate performance,

With counsel’s he testified that it impression was his that he could only raise trial error matters, therefore, and not collateral he did not conduct N.T., an investigation. extra-record May See 714- However, the law as of the time of Appellant’s direct appeal required direct-appeal investigate counsel and liti- gate claims pain extra-record on of waiver. Common- Grant, 48, 66, (2002) wealth v. that, (explaining under the rule time pertaining at the trial, Appellant’s appellate counsel had the of raising “burden any extra-record claims may that exist interviewing client, members, family other any people may who shed light on pursued claims could or during have been before Thus, sentencing”). appellate counsel’s also stewardship was clearly deficient.

Justice joins BALDWIN this concurring dissenting opinion. retarded. As the notes tally con- records trial counsel obtained cational that should have Appellant’s firm in school. See Lead poor performance difficulty A.2d at 388. ac- Opinion, op. I have that with a cepting capital presented notion counsel had very poorly client who should have known performed school, re- undisputedly mentally who borderline tarded, investigate lack client’s intellectual will cause I functioning regard, factor. In this would mitigating that in Virginia, note Atkins v. U.S. S.Ct. (2002), L.Ed.2d 335 the United Court Supreme States that, of their in areas of determined because disabilities reasoning, judgment, mentally and control of their impulses, moral persons culpabili- retarded do not act with level of most serious offend- ty characterizes the adult criminal

Case Details

Case Name: Commonwealth v. Romero

Court Name: Supreme Court of Pennsylvania

Date Published: Dec 28, 2007

Citation: 938 A.2d 362

Docket Number: 315 CAP

Court Abbreviation: Pa.