*1 490 architectural services distinguish design-related
terization to services, practical implications of and its range from broader in information-based and services products in an era which N. Am. v. Cease Insurance Co. generally proliferate. of Inc., (Wis.2004) Elec. (criticizing 471-72 N.W.2d rule that adopting bright-line and approach Illinois for the inapplicable negli- economic doctrine is to claims loss services). many ways Having surveyed gent provision in- interests competing addressed the which courts have volved, thus suffers position that the Illinois recognizing common law from some of the drawbacks associated with law, it as a I nonetheless view pronouncements substantive nature, purposes, restrained one that best reconciles with the misrepre- development negligent of the economic loss legisla- in the absence of Pennsylvania, sentation doctrines tive intervention.
Therefore, dissenting position in the I concur Chief Justice’s be affirmed. Superior that the Court’s order should 866A.2d Pennsylvania, Appellee, COMMONWEALTH SARANCHAK,Appellant. Daniel Pennsylvania. Supreme Court of April Submitted 19, 2005. Decided Jan. *6 Nolan, Lev, Esq., Brian Shawn Matthew C. Esq., Stuart Philadelphia, for Daniel Saranchak. Lawry, Esq., Shields, Eshbach, Harter Esq., A. Lord Jonelle Claude Pottsville, Pennsylvania. Esq., for Commonwealth CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, Before: SAYLOR, BAER, and JJ. EAKIN
OPINION BAER, Justice. an order of the Pleas Court appeal
This is an from Common relief Schuylkill County dismissing capital, post conviction (PCRA), Relief Act to the Post Conviction petition pursuant reasons, affirm. following § 9541-9546. For we Pa.C.S (Appellant) On October Daniel Saranchak friend, (Miles), at drinking Roy Mickey Miles Court- Bar) Pottsville, Pennsyl- Bar in ney’s Sportsmen (Courtney’s could they told Miles he knew where Appellant vania. to kill money, they might some but that have someone acquire Thereafter, to obtain it. the two men left bar and went house. obtained a .22 caliber Appellant brother’s brother, going rifle from that he and Miles were feigning his house, Appellant After his brother’s hunting. leaving purchased quarts to a bar and two of beer Miles went second (the Cumbola, in Pennsylvania to a residence driving before Residence) by Appellant’s 87-year-old grandmother shared (Uncle). (Grandmother) uncle, and his Edmund Saranchak Residence, stated that he was entering Appellant Before money Appellant some from Grandmother. going get an unlocked basement through Miles entered the Residence inside, to the in the Appellant directly walked sofa door. Once him almost killing basement and shot Uncle the head over, Miles instantly. Appellant rolled Uncle while rifled money. through pockets stealing Appellant victim’s and Miles then went to second floor bedroom. Grandmother’s Grandmother, asked Miles to shoot but he refused. asked, Upon awakening, “Danny you?” Grandmother is that fatally then shot Grandmother once the head. Miles the bedroom’s blinds proceeded lower money. They eventually and search Grandmother’s room for stole some from Grandmother’s money purse.1 had a meeting employer
Uncle breakfast scheduled with his *7 for the next failed to morning. appear, When Uncle employer spoke neighbor, went to his home and with a who indicated he had not seen either since the previous day. victim home, Employer and the decided to enter the and neighbor so upon doing body. They discovered Uncle’s called the police, responded who and found After body. Grandmother’s scene, securing the crime the police neighborhood canvassed and questioned neighbors. upon Based the information ob tained, who, police Appellant’s interviewed mother among other things, police told the had shoot Appellant “gone the ing” night before. She also informed police Appel where information, lant was Based residing. upon mother’s obtained a search police Appellant’s warrant apartment and seized a .22 caliber rifle.2 16, 1993,
On October
Appellant
custody,
was taken into
transported to a local
station
police
and twice advised of his
Arizona,
to Miranda v.
rights
constitutional
pursuant
384 U.S.
86 S.Ct.
On
the trial
guilt hearing,
degree
homicide. After
general
counts of first
had committed two
court determined
murder,
The Com
robbery,
conspiracy.
degree
burglary,
that a
requested
sought
penalty,
the death
monwealth
both the
During
sentence.
appropriate
determine the
jury
co-
phase hearing,
and the
degree
guilt hearing
penalty
question.
regarding
Miles testified
the events
defendant
cross-examination, however,
his Fifth
Miles invoked
On
regard
large
against self-incrimination
right
Amendment
murders.
soon after the
person
amounts of cash found on his
aggrava
jury
found two
penalty phase hearing,
After the
during
murders
committed
circumstances:
that the
were
ting
felony
of a
the course of the commission
*8
murder,
before or
another
committed either
was convicted of
mitigating
no
jury
The
found
at the time of the offense.5
15,1994,
factors,
September
the
at death.6 On
penalty
and set
arrest,
murders
Appellant also confessed both
point
3. At
after his
some
(CYS) caseworker involved
Schuylkill Children and Youth Services
to a
with his children.
903,
3502(a),
2502(a),
respectively.
§§
and
4. 18 Pa.C.S.
3701
l(d)(l 1),
9711(d)(6)
respectively.
§§
5. 42 Pa.C.S.
and 971
Basemore,
l(c)(l)(iv);
Pa.
§
v.
525
42 Pa.C.S.
971
Commonwealth
6. See
512,
(1990) (holding
be set at death
that the verdict must
499 trial the of death formally imposed jury’s the court sentence convictions, degree for both first murder and further sen maximum for the tenced to consecutive sentences three The of the death remaining imposition penalty felonies. appeal. mandated this Court consider direct 9711(h). so, Pa.C.S. We did and affirmed the trial 24, court on 1996. v. April decision Commonwealth Saranc hak, (1996) (Saranchak I). 158, 268, 544 Pa. 675 A.2d
Appellant subsequently
pro
petition
filed a
se
for relief
28, 1997,
May
to the
the
court
pursuant
PCRA. On
PCRA
petition
hearing
dismissed
without
for lack merit.
26,
timely filed an
on
appeal with
Court
June
8, 1999,
November
this Court issued a
curiam
per
On
vacating
order
the PCRA court’s order and
remanding
Saranchak,
111,
case.
559 Pa.
Commonwealth
The Defender appealed Association to this asserting that the waiver was invalid because no competency hearing appeal had been conducted. While the then- pending, 8, Ridge signed Governor a death warrant setting November 2000 as the date for execution. The Defender Association requested stay imposition we scheduled 25, 2000, the death penalty. On October this Court held the matter in abeyance pending supplementation of the record by Saranchak, court. See Commonwealth v. (2002) (Saranchak V). 810 A.2d At court, M.D., direction of the PCRA A. Larry Rotenberg, jury unanimously specified aggravating if the finds at least one circum- circumstances). mitigating stance and no *9 500 at the and Medical Reading Hospital
Director of Psychiatry
Center,
and submitted a
psychiatric
conducted a
evaluation
3, 2000, the
court held a hear-
November
report. On
Rotenberg
competent
and Dr.
testified
ing,
all further
requisite ability
knowingly
and had the
to waive
6, 2000, after
reviewing
On November
legal proceedings.
competency hearing,
record from the PCRA court’s
Court
the Defender Association
Appellant’s dismissal of
permitted
to stand. Commonwealth
legal proceedings
and cessation of
(2000) (Saranchak
Saranchak,
136,
v.
564 Pa.
Finding this Court
petition7 seeking
filed a next-friend
Defender Association
of execution in federal court. The United States District
stay
of
held an emer
Pennsylvania
for the Middle District
Court
proceeding, Appel
the course of this
gency hearing. During
pursue
appeals,
lant
that he did not wish to
further
testified
conclusion,
At
hearing’s
and wanted to be executed.
did not
federal trial court found that the Association
meet
next-friend,
to be
and that it had
requisite
designated
criteria
incompetence.
not demonstrated immediately
appeal
The Association
took an
to the United
Circuit,
for the Third
which entered a
Appeals
States Court
may petition
incompetent
an
7. A next-friend
court on behalf of
standing
proceeding
person.
in a federal
is
no
''Next-friend”
habeas
automatically
pursue
granted
whomever
to
action on
means
seeks
another;
adequate
provide
explanation-
behalf of
a next-friend must
disability—why
inaccessibility,
incompetence,
other
such as
mental
or
party
appear
prosecute
behalf to
the real
in interest cannot
on his own
.
truly
person
of the
an action and must be
dedicated to the best interest
litigate,
significant
he
and have
relation-
on whose behalf
seeks
some
2242;
ship
person.
§
see also
v.
with that
28 U.S.C.
Whitmore
Arkansas,
149,
1717,
(1990).
His execution averted
virtue of the Third
stay,
Circuit’s
20, 2000,
on
Appellant
November
filed a “motion for reargu
ment” in this Court seeking reinstatement of the Association
counsel,
as his
the grant of a new
of
panoply
post-conviction
rights and
remand of the
to the trial court for
proceedings
full consideration of his amended
petition.
PCRA
On Febru
7, 2001,
ary
jurisdiction
this Court retained
and ordered the
PCRA court to conduct a colloquy
with
to determine
had, indeed,
whether he
changed
regarding represen
his mind
Commonwealth v.
tation and desired to pursue
rights.
PCRA
Saranchak,
(2001) (Saranchak
IV).
250,
564 Pa.
We consider
whether Appellant
preju
suffered
inaction,
dice because of
counsel’s
accordance with Pierce’s
third criteria. We note that
it is clear that Appellant has
“[i]f
not demonstrated that counsel’s act or omission adversely
affected the outcome of the proceedings,
may
the claim
be
dismissed on that basis alone and the court need not first
determine whether the first and
prongs
second
have been
Albrecht,
met.”
Commonwealth v.
720 A.2d
We conclude that even if counsel would have
presented
psychiatrist’s revised testimony to the court at
degree
court,
of guilt hearing,
nevertheless,
would
*12
have returned a verdict of first degree murder. As noted in
brief,
the Commonwealth’s
the instant case is
analo
strikingly
Stevens,
to
gous
Commonwealth v.
Id. at 517. us, who was also judge,
In the case before looked to the circum- degree guilt hearing, at the judge murders and concluded night of the surrounding stances of evidence that overwhelming there an amount to formulate the ability conclusively Appellant’s demonstrated examined the chronol- intent to kill. The PCRA court specific *13 could he he stated that knew where Appellant of events. ogy At 11:00 p.m. at 8:30 on October money some get midnight, At Courtney’s left Bar with Miles. p.m., Appellant pro- then Appellant a .22 caliber rifle. retrieved Appellant Miles, men the two bar with where ceeded to second to then drove Cum- Appellant of beer. purchased quarts two bola, driveway, in parked Grandmother’s Pennsylvania, money to some from Grandmoth- going get that he was stated rifle, through entered the house er. took the Appellant basement, in the door, to a sofa directly basement walked taking in the forehead before his wallet. shot Uncle floor Grandmother was then to second where proceeded her, you?,” is that “Danny asked Upon being sleeping. forehead. Before his rifle and shot her raised purse money took from Grandmother’s leaving, Appellant Eventually, Appel- open tried to a closet safe. unsuccessfully Ac- to his involvement. and confessed apprehended lant was series of complex court found that “the the PCRA cordingly, 15, 1993, as night took on the of October [Appellant] actions Bar Courtney’s Miles at he made to as statements well crimes, after the officers investigating and statements to intent to commit compelling [Appellant’s] evidence provide money.” and, if to kill in order to obtain robbery necessary, Stevens, if Appellant As even agree analysis. with We dimin- testimony concerning developed psychiatric have would failed. the defense would have capacity, ished inef trial counsel second claim is that incrimina suppress a motion to an pursue to fective continue right of his to statement and advise ting notwithstanding incriminating to the statement challenge his on the murder general plea guilty to enter a his decision should have the statement Appellant argues charges. to silence after right because he invoked his been suppressed Uncle, that such information killing by saying confessing regarding by responding questions “classified” and As “Don’t ask me that.” by stating, murder Grandmother’s n claim, of trial counsel’s first this contention of Pierce to the fails the due prejudice prong ineffectiveness of the Appellant’s guilt. light evidence of overwhelming *14 of co-defen previously Appellant’s guilt, articulated evidence explicit proper and and testimony Appellant’s dant Miles’ caseworker,11 of both murders to a CYS who testi confession guilt penalty phase hearings, fied at both the of degree from his Appellant prejudice resulting fails to demonstrate of pursue suppression trial counsel’s failure to to fruition Therefore, con police. initial statements to we the of the Appellant satisfy prong clude that has failed to third prove Pierce test and thus is unable to ineffectiveness Albrecht, in to this claim.12 720 A.2d at regard counsel 701. ineffectiveness,
In his third claim of counsel as alluded argues that counsel was ineffective previously, Appellant litigate suppress Appellant’s a motion to statements Schuylkill County to a The employed by caseworker CYS. arrest, Appellant shortly after his caseworker interviewed children, in care the result concerning his who were foster as At that com meeting, of his incarceration. the caseworker not the murders took mented that she could understand how Uncle, and stated place. Appellant freely killing admitted to because of also greed. Appellant he had done so Uncle’s that al killing admitted to Grandmother. He also stated murders, he had been at the time of the he though drinking not The to these confes was intoxicated. caseworker testified degree guilt hearing during sions at both the penalty phase. caseworker, that the as an of the
Appellant argues employee Commonwealth, access to because of her gained Appellant to attack the to the CYS 11. While also seeks confession caseworker, argument unavailing, thereon be discussed his as will infra. Although prong, we need not address the second we note that the testimony credible trial court found counsel's specifically pursue suppression and to directed him not to issue plead guilty generally agree with the to two counts of murder. We following client's PCRA court that counsel had a reasonable basis Therefore, satisfy instructions. claim also fails to sec- prong. ond therefore, duty had a to advise
employment
Ramos,
citing to Commonwealthv.
his Miranda
warnings
Ramos,
This case is
the CYS
plight Appellant’s
caseworker was concerned with the
of
chil
dren.
a
of
criminal
stranger
any aspect
She was
to
case.
Her question regarding
purely
the murders was
conversation
al and
not made
of
purpose
soliciting
information
about the
If taken
logical
from
crimes.
to its
conclusion,
essence,
in
Appellant’s argument,
any gov
is that
Miranda
employee
required
provide
ernmental
would be
to
rights
engaging
before
in conversation.
one
in
Assuming
jail, this
include maintenance staff
cleaning
facility,
would
cooks
food and volunteers
solace.
preparing
offering
Howev
Ramos,
er,
Court,
our
did not enunciate such a broad rule
such a broad interpretation
and
is not warranted here. As
Ramos,
noted,
and,
facts,
this case is
of
under its
inapposite
'
arguable
there is no
merit to
contention. Accord
of Pierce.
Therefore,
ingly,
prong
he has not met the first
we
analyze
remaining
prongs
need not
two
because counsel
raise meritless claim. cannot be
for
to
a
failing
ineffective
(Pa.2004).
Bryant,
v.
Commonwealth
855 A.2d
fourth claim of trial
counsel’s ineffective
ness concerns the
of co-defendant
testimony
during
Miles
both
degree
guilt
penalty phase hearings. During
of
such
testimony,
having large
Miles admitted to
sum of cash on his
cross-examination,
the murders.
person following
During
Ap-
as to the source of such cash
inquired
trial counsel
pellant’s
to
the inference that Miles committed
apparently
raise
by invoking
Miles
responded
thefts at the crime scene.
right against
concerning
Fifth Amendment
self-incrimination
that trial counsel
money.13 Appellant argues
the source of the
object
to Miles’ invocation of
was ineffective
filing
cross-examination and for not
during
Fifth Amendment
testimony.
his direct examination
a motion to strike
judge
a trial
must
against
The standard
which
may
invoke a claimed
properly
determine whether witness
privilege
Fifth Amendment
was set forth Commonwealth
(1967):
Carrera,
Notwithstanding Appellant’s
privilege against
to
his Fifth Amendment
every right
invoke
enterprise,
in a
criminal
incriminating himself
different
no basis for a motion to
availing
right provided
himself of
that states
any legal authority
fails to cite
strike.
because Miles in-
merely
that counsel could move
strike
his Fifth Amendment
on cross-examination. As
right
voked
such,
merit and fails the first
arguable
this assertion lacks
Bryant,
articulated in Pierce.
During hearing before the counsel testified that neither Appellant, girlfriend his mother nor his provided him information that at any penalty went unused Furthermore, counsel, hearing. no one phase according him upbringing, informed abusive dysfunction- al family any contrary, or childhood mental illness. To the counsel he been informed of this informa- testified had tion, it in mitigation. he would have used
510
New-
concurrence Madame Justice
cites to the
1221,
Smith,
219,
A.2d
675
in
v.
man Commonwealth
an
to conduct
(1996),
that failure
proposition
1234
for the
consti-
may
records
of witnesses
adequate investigation
and/or
v.
Wiggins
of
See also
ineffective assistance
counsel.
tute
2527,
Smith,
510, 524,
test both because lacks informa reasonable strategically given sel’s actions were objective him. standard Applying tion he had available Strickland, on trial we find no ineffectiveness enunciated his mother and Appellant, counsel’s behalf. He interviewed Ap from sought He out relevant information girlfriend. do not that he should have family perceive we pellant’s of Pierce is regard. prong in this The second done more all premised upon if decision was strategic satisfied counsel’s An he had to him. evaluation of the information available deferential, the reason performance highly counsel’s upon decisions cannot be based ableness of counsel’s *18 distorting hindsight. effects of See Commonwealth v. Base more, (2000) 258, 717, 785, Strickland, 560 Pa. 744 A.2d citing, 668, 104 80 L.Ed.2d U.S. S.Ct. 674.14 next contends that his trial counsel’s ineffective- him deprived right independent ness of his to an mental health to evaluate his mental condition and assist in expert develop- ment of a diminished capacity testify defense and as to mitigating during circumstances the penalty phase. This issue merely restatement initial contention of ineffectiveness of trial to failing prior counsel obtain school, mental health and hospital only records. The distinc- tion the arguments between is that the initial one phrased was records, in terms of a failure obtain to the and the instant one is framed in terms of failure to independent obtain an expert to evaluate and comment on those records. We find it unnec- to essary argument again, evaluate this and instead hold that because, if fails for all the reasons set forth supra, even assuming arguendo the records would have been obtained and retained, an independent psychiatrist the end result of this case would been no have different.
Appellant’s seventh claim of ineffective assistance of counsel is that trial in failing the court erred to instruct the dissenting opinion by Saylor 14. The authored Mr. Justice claims the majority supplant concluding "elects to the factfinder's decision” when arguable that there was no merit to the claim that counsel was ineffec- family background tive for to seek and mental and school J., support mitigation. Saylor, dissenting, Slip Op. records to fact, at 2. In rejected the PCRAcourt this ineffectiveness of counsel claim based Therefore, upon prejudice prong the of Pierce. the PCRA court's analysis arguable prongs cursory the merit and reasonable basis Moreover, conclusory. to the extent that the dissent asserts that conclusion, arguable the determination of merit is a factual we dis- agree. always While we will defer to a PCRAcourt's factual determina- record, supported by question tions where the ultimate of whether arguable legal facts rise to the level of merit is a determination. previously, penalty hearing, As stated at the time of the counsel was privy Appellant's background by not to information as cited the dissent family provide because failed counsel with such information, specific requirement Again, which is a of Strickland. as Basemore, Supreme can be derived the U.S. Court decision in responsible Court must be careful not to hold counsel for information hindsight. which became available or of extreme mental circumstance mitigating on the jury object to or re and counsel failed disturbance emotional upon relies instruction.15 jury an quest appropriate 9711(c)(l)(ii) “the court shall states that § which 42 Pa.C.S. specified ... circumstances jury mitigating on instruct (e) Id. there is some evidence.” as to which subsection n Where statutory one of the support some there is evidence on that circum jury court must instruct mitigators, A.2d Frey, stance. See Commonwealth 700, 704 there no evidence argues
The Commonwealth murders, trial, time of the that at at presented or emotional from extreme mental *19 suffering Appellant was only contends that the evi- The Commonwealth disturbance. the influence of that was under Appellant was presented dence jury that the argues Additionally, the Commonwealth alcohol. mitigat- as a considering from the evidence not precluded was of 42 provision to the catchall Pa.C.S. pursuant factor ing 9711(e)(8). agree. § We mitigating to support there is no evidence
Where circumstance, v. it not be found. See Commonwealth may 125, Appellant A.2d 575 was Pa. 595 Tilley, 528 at the time of trial. by psychiatrist competency examined testify Appellant was psychiatrist did the point At no he commit emotionally or disturbed when extremely mentally history had a certainly Appellant ted these murders. While alcoholism, proba most was mental health difficulties oc alcohol these murders the influence of when bly under or curred, are from “extreme mental concerns distinct these 16 prong the first In accordance with emotional disturbance.” 9711(e)(2) § 42 Pa.C.S. states: 15. following:
(e) Mitigating
shall include the
circumstances
(2)
influence of extreme mental or
was under the
The defendant
emotional disturbance.
search,
appears
be no case
there
We note that after an exhaustive
emo-
specifically
the term "extreme mental or
defines
or statute
judice,
Regardless,
in the
there was no
case sub
tional disturbance.”
Pierce, therefore,
arguable
that there is no
merit to
we find
claim.
In
claim of
eighth
object to
that trial counsel
ineffective for
gues
regard
with
jury
during
penalty phase
instruction
killing
circumstance that the
committed
aggravating
the trial
failed to
felony,
in the
of a
because
court
perpetration
alleged
define the elements of the
felonies. The Common
in the
argued
killing
wealth
committed a
while
perpetration
felony,
aggravating
of a
as an
circumstance. See
9711(d)(6).
jury,
§
trial
Pa.C.S.
The
court instructed
“The defendant committed a
in the
killing
perpetration
while
felony.
felony
of a
A
is such a crime as
Pennsylvania
or
N.T.
at 169.
robbery, burglary
conspiracy.”
Ap
9/15/94
pellant maintains that
the trial court failed to define the
elements of these crimes for the
of his
jury.
support
Billa,
argument,
cites
v.
521 Pa.
Commonwealth
(1989),
835,
proposition
555 A.2d
for the
that when the
(d)(6)
on the
the court is
proceeds
aggravator,
Commonwealth
to define the elements of the
felonies.
required
alleged
Appel
lant also makes reference to
May,
Commonwealth
(1995),
However, Appellant’s argument misguided. The PCRA correctly court found that are May distinguishable Billa *20 case, subjudice. from the case In this the PCRA court noted that Appellant already guilty underlying found of the by felonies relied the upon following Commonwealth non- jury trial on those to the In charges prior penalty hearing. Billa, neither nor May already had the accused been found guilty. contrary, To the the at jury charge issue these case, cases related to the of trial. In guilt phase the records of the guilty verdicts were entered into evidence during the The court that penalty phase. found “to
psychiatric testimony Appellant psychiatric that suffered from deficien- only testimony presented Appellant's cies. The related to intoxication' Therefore, night question. on the we not reach the need definition of “extreme mental or emotional disturbance” here.
514 jury the on the to instruct required that the court was
argue penalty phase prepos- the charges during elements of those that this claim is Op. agree at 20. We terous.” PCRA Ct. merit. completely devoid ineffectiveness, argues in his ninth claim of
Appellant, object to the failing ineffective for that trial counsel was that aggra the during penalty phase trial court’s instructions that make “things circumstances are vating mitigating case more or less terrible.” degree first murder the restricted improperly that the court’s instruction argues court The PCRA mitigating consideration of evidence. jury’s verbatim, raised, on nearly found that this issue was precise found. to this and no error was appeal direct Court I, There Pa. 675 A.2d Saranchak litigat fore, previously court dismissed the claim as the PCRA ed. 9544(a)(2) § statutory provision is Pa.C.S. applicable
The as follows: provides which
(a) an subchapter, of this litigation.—For purposes Previous if: previously litigated issue has been s}c s¡< % Hí H* (2) court in highest appellate petitioner which has ruled on right had review as a matter of could have the merits of the issue. it is litigated appeal this claim was on direct
Accordingly, as under the cognizable not PCRA. counsel, tenth claim of ineffective assistance that ineffective for
Appellant alleges counsel was prosecution made object “improper argument” to an contends during penalty phase. Specifically, statement, jury told the opening in his prosecutor, Miles, co-defendant, who would they would hear from following that he made to testify police to the same statements so, argues prosecu By doing Appellant the murders. to a credibility key by referring of a witness tion bolstered not admitted into evi prior consistent statement which was Furthermore, maintains that the prosecutor dence. *21 intended to passions inflame the of the jury by telling jury shot, that Miles testify prior being would said, grandmother “Danny, why you do have that gun?” Ap- pellant contends it error for object counsel not to because Miles, neither in any prior statements, of his or testimony nor witness, any other had ever attributed those words to Grand- mother. Finally, Appellant that the argues prosecutor incor- rectly jury told the that Miles’ testimony that he and Appel- lant had to the gone Residence to commit robbery would be corroborated by Appellants statements to police. Appellant argues always that he the robbery denied charges. Appel- lant’s argument is that the cumulative effect of the prosecu- tor’s improper remarks violated his rights Sixth, under the Eighth and Fourteen Amendments of the United States Con- stitution.
The PCRA court found that Appellant did not properly
specify
rights
how his
were violated. The court found that the
remarks were not inflammatory,
prejudice
did not
Appellant,
claim
arguable
without
merit.
agree.
We
We
conclude that Appellant fails to
arguable
establish
merit be-
cause the cited statements by
prosecutor
would not have
the “unavoidable effect” of
forming
jury’s
mind a “fixed
bias and hostility” such that the jury could not “weigh the
objectively
evidence
and render a true verdict” as
required
to establish
Fisher,
reversible error. See Commonwealth v.
813 A.2d
The jury was well-
of the fact
aware
that Appellant had been
convicted
two
counts of murder in
degree
the first
and the
charges
other
of the details of the
light
crimes.
of the other evidence in
case,
we conclude that the prosecutor’s argument did not
have the unavoidable effect of
prejudicing
jury. There-
fore, Appellant’s ineffectiveness claim
fail
must
because he has
failed to establish the merit of the underlying claim. See
Bryant,
Finally, his last argues that he is entitled to relief due to the cumulative effect of the ineffective assistance of counsel alleged. determined, errors Having however, merit, that no claim individual has Appellant is not *22 effect. their cumulative upon alleged based to relief
entitled 532, 435, Rollins, 738 A.2d 452 See is affirmed.17 of the PCRA court the order Accordingly, dissenting opinion. and concurring files a SAYLOR Justice dissenting opinion. files a NIGRO Justice ' Justice, dissenting. SAYLOR, concurring a not to award majority’s decision agree I with While differ with its respectfully I hearing, degree-of-guilt new counsel’s the claim of trial concerning reasoning and outcome investigate present mitigation to for ineffectiveness life hearing pertaining penalty at the evidence and mental condition. history claim, finds majority analysis of its of this
At the outset merit, to the life- regard at least with lacking arguable it 509-11, A.2d op. at Majority Opinion, history aspect. See however, fails to address majority, The at 304. conclusión, as follows: contrary court’s [Bjased did receive counsel] the information upon [trial performed he should have report], psychiatrist’s [from circum- mitigating into investigation possible thorough more re- would have complete investigation A more stances. to the presented have been information should vealed reason, [Appel- merit to arguable we find jury. For for claim, found no reasonable basis and we have lant’s] thorough a more investi- failure to conduct counsel’s] [trial gation. 889A-1993, Saranchak, at slip op. No.
Commonwealth 2003). (C.P. Schuylkill July factfin- majority supplant thus elects Although the for its support it modest offers point, decision on der’s terms, stating only, general regard, in this decision from Appellant’s information out relevant sought trial counsel Supreme directed to transmit a Prothonotary Court is The Pennsylvania in the Governor of complete record of this case to l(i). § 42 Pa.C.S. 971 accordance with at 16. Majority Opinion, slip op. girlfriend. mother and however, record, concerning little indication gives very The See, N.T., in this investigation regard. e.g., of the depth trial 11, 2003, testimony (post-conviction Feb. at 86-87 “I talking [Appellant’s the effect that remember counsel to about, recall.”); I cannot exactly spoke Now what we mother]. to trial counsel’s conversa- (testimony, respect id. at 88 with I that “I don’t recall girlfriend, tion what about.”). Moreover, in independent finding to her its spoke merit, no to reconcile majority attempt no makes arguable reflecting Appellant’s to obtain school records counsel’s failure program socially in a educational special placement *23 11, 2003, children, N.T., at 89 disturbed see Feb. & emotionally P-18, and status as a Appellant’s apparent” Ex. “obvious 42, adolescent,” failure disturbed id. at or counsel’s “seriously others family to various members and who were interview of evaluation and Appellant’s history psychiatric aware of difficulties, in their and as reflected developmental treatment they simply to the effect that were post-conviction testimony See, N.T., 19, 2003, at e.g., contacted counsel. Feb. 65- by not D-6, Appel- from two of (stipulated 66 & Exs. D-7 affidavits teachers); step at 135 of (testimony lant’s id. half-brother). father); In (testimony id. at 151 of claim, the relation to the mental health of this deficient aspect of counsel’s and is also investigation preparation character detailing reflected in his failure to obtain medical records N.T., Feb. Appellant’s past psychiatric hospitalizations, see P-18, Ex. and his failure to acknowledged at 88 & of a expand scope psychiatrist the of the retention defense on clinical a evaluation based a brief observa- past competency fuller, N.T., assessment. mitigation-based tion and into See 11, 2003, Feb. at 75 & Ex. P-10. view,
In the merit determination my arguable PCRA court’s in investigating as concerns counsel’s deficient stewardship the presenting mitigation amply supported evidence not by record and should be disturbed Court.
I the is a recognize concerning prejudice determination In this question regard, majority closer this case. as notes, developed at the trial counsel several penalty hearing including Appel- of references mitigation, generalized lines 15, 1994, difficulties, N.T., at Sept. see lant’s alcohol-related incarceration, 94-95, 99-101, 107; adjustment see positive 101; subject to the disposition id. at character and when not N.T., 99-100; alcohol, at role as a positive influence of see Nevertheless, at 100. I believe father of two children. See id. mitigation by that the evidence that was omitted virtue greater potential significance counsel’s deficient conduct had return a life jurors’ in terms of the decision whether or a than that has been attrib- sentence death verdict which it court. by majority uted to only mental particular, during penalty hearing, presented testimony health evidence that counsel was Kruszewski, had been retained psychiatrist Dr. who Stefan to determine was solely under court order whether to the to stand trial and whether his confession competent N.T., 11,2003, P- Feb. at 164 & Ex. police voluntary. See nar- Significantly, penalty-hearing testimony very his retention, consisting the lines of his rowly along focused that, an primarily during competency indication limited assessment, the murders Appellant expressed remorse about actions, but did not manifest responsibility and took N.T., 15, 1994, at any major psychiatric disability. Sept. terms, stated, in that if a general 164. Dr. Kruszewski also *24 nature, can consuming tends to be alcohol person impulsive by lead to person impulsive potentially make that more and can being fully a crime of what he committing without aware 123; however, at did not connect doing, was see id. witness that occurred in the case. reasoning anything present with Kruszewski, Dr. or mental health any expert, Nor was other comprehensive subsuming asked to a more evaluation perform from the in hospitals a review of available records which connected Appellant psychiatric problems was treated with at one suicide multiple psychotic episodes (including least school, where, or from he had attempt), again, been in a for students with social placed special program emotional disturbances. contrast, presented PCRA counsel testi-
By PhD, psychologist, Harry Kropp, of a licensed clinical mony and did conduct a fuller did review these documents who clinical, Dr. mitigation-based Appellant. Kropp assessment concluded, information, a upon Appel- based such that as child pervasive developmental lant suffered from disorder. See N.T., 11, 2004, at 17. He also noted that there Feb. was in Appellant’s alcoholism and domestic violence childhood home, chemically had been since the Appellant dependent Further, id. at 19-21. age of twelve or thirteen. See when school, grammar Appellant suffered from several additional which, infirmities combined his substance psychological abuse, in paranoid resulted and delusional traits which became 13-14, 21, 39, alcohol id. at consumption. exacerbated See Dr. that these constituted Kropp 42. indicated conditions to normal to a significant impairments functioning, led condition in had wanted to Appellant—who apparently which think join military age—would occasionally from an early that in fact in the military, he was and these delusions would become he consumed alcohol. particularly strong when See 11, N.T. Feb. 2003 at Dr. Kropp Appellant 27-28. described illness, 30, having as a serious mental id. at and noted that treatment, necessary psychiatric never received part any family because of a virtual lack of support system assure that treatment sought. would
Likewise, conducting mitigation-based after also a fuller assessment, Dr. post-conviction Rruszewski testified at the hearing psychoactive, had substance-induced delusional disorder at the time of the N.T. killings. See Feb. 19, 2003, at 182. court Although PCRA disbelieved portion discrete of Dr. testimony concerning Kruszewski’s intent, criminal it Appellant’s capacity apparently to form did (consistent Dr. Dr. accept Kruszewski’s conclusion with that of from a serious mental Kropp) suffering Saranchak, disorder at the time of the killings. No. 889A-1993, Indeed, at slip op. judge—who, notes, majority judge— as the was the same as the trial *25 found, in expressly light availability pertinent of the of the 520 trial, in performance
records at the time of that counsel’s this reasonableness, objective area fell an standard of below should that the mental health evidence which have been (e)(8), supported have at least the or “catch- presented would 9711(e)(8) all,” § mitigating circumstance. See 42 Pa.C.S. the (“Any mitigation concerning other evidence character and record of the defendant and the circumstances offense.”). ultimately only The PCRA court denied relief that, it felt if this factor had mitigating because even been that jury there was no reasonable proved, probability imprisonment have returned a sentence of life rather would than death. however, record, that,
It is evident from the trial
had this
during
penalty hearing,
information been elicited
the court
jury
mitigating
also would have instructed the
as to the
circumstance
to the influence of an extreme mental
pertaining
9711(e)(2).
§
42
or emotional disturbance. See
Pa.C.S.
The
instruction,
specifically requested
reason is that counsel
the trial court denied the
on the sole
request
basis
testimony
there
no
it.
N.T.
expert
support
Sept.
15, 1994, at
Had the
it
given,
132.1
instruction been
in
certainly plausible—and,
my opinion, reasonably likely—
(e)(2)
juror
that at least one
have found the
mitigator,2
would
a combination of the
upon
expert
based
undiscovered
evidence
lay testimony
and certain
that was
at the
presented
penalty
hearing concerning Appellant’s consumption of alcohol and
opinion
majority
may
1. To the extent
be understood to affirm the
(e)(2) mitigating
requires expert
trial court’s view that the
factor
evi-
dence,
n.16,
n.16,
Majority Opinion, op. at
A.2d
I
see
512-13
866
at 306
agreement,
nothing
capital sentencing
am not
as there is
9711(c)(1)(h)
suggests
§
statute that
such a limitation. See 42 Pa.C.S.
(providing
jury concerning any
the court "shall” instruct
evidence);
statutory mitigating circumstance for which there is "some”
429, 444,
(1986)
Carpenter,
v.
A.2d
Commonwealth
515
538
(e)(2)
(noting
lay testimony may support
mitigator).
Penalty-phase prejudice
proba-
occurs whenever there is
reasonable
bility
single juror
mitigating
that even a
would have concluded that the
that,
together
mitigation,
any
circumstance existed and
other
it
(or
with)
weight
outweighed
equal
aggravating
was of
circum-
(c)( )(iv);
Smith,
Wiggins
§
stances. See 42 Pa.C.S.
also
see
510, 537,
2527, 2543,
U.S.
123 S.Ct.
NIGRO, dissenting. dissent, majority’s the disagree I as I with respectfully claim entitled to relief on his Appellant conclusion that is not the failing provide ineffective for to that trial counsel was Kruszewski, Ap- Dr. with court-appointed psychiatrist, Stefan records and for mental health and school pellant’s relevant adequately investigate prepare otherwise to failing defense. capacity diminished that claim majority Appellant with his
Notably, agrees that trial counsel had no arguable in this has merit and regard basis for Dr. Kruszewski with the failing provide reasonable Moreover, I note that such a conclusion is relevant records. record, clearly by the which includes Dr. Kruszew- supported had hearing provid- ski’s at the that he been testimony ed records at the time of trial he would have Appellant’s with Appellant incapable forming specific concluded that was N.T., 2/19/2003, see murder, kill at intent to at the time of the example, penalty 3. For one of the Commonwealth witnesses at the hearing "snapped” stated that confessed to her that he had night question, there evidence from other on the was witnesses observation, including testimony consistent with this had drinking heavily, glassy-eyed, been he was dazed and his manner had (which with his usual demeanor after become subdued contrast alcohol), consuming spoken gravestone and he had to his father’s Furthermore, evening. by police when interviewed earlier in the evening, Appellant killings next seemed to think that the were accom- plished part military operation, responses were as of a accord- ingly rigid Appellant’s indicated and militaristic. The officers well, appeared unusual as as he that he was a demeanor was to.believe sergeants. new recruit and the officers were his drill
173-183,1 as trial counsel’s admission that he had no well as the extent of failing investigate reason for mental health or for Dr. Kruszew problems provide N.T., school and records. See hospital ski with 2/11/03, at 89-91.
However,
majority
then determines that
reaching
here.
prejudiced by
not
counsel’s inactions
conclusion,
majority chiefly
upon
relies
Commonwealth
Stevens,
(1999),
counsel,
trial
Here, on that majority determining relies Stevens provide not counsel’s failure to Appellant prejudiced by Appellant’s Dr. Kruszewski with mental health records be- Stevens, below, cause the court like the court in PCRA that, essentially stated based on the actions and statements of murder, at the time of the it still would have found Appellant testimony hearing, Appellant presented the 1. At his PCRA also Harry psychologist Kropp clinical D. to corroborate Dr. Kruszewski’s expert opinion regard capacity at the with diminished N.T., 2/11/03, time of the offenses. See at 11-41. that had the intent to kill specific regardless any testimony by Dr. Kruszewski was unable to any formulate such an intent or other additional evidence diminished I am as troubled capacity. by this Stevens, as I I reasoning Stevens. also filed dissenting opinion, essentially expressed which agreement There, filed by Zappala. dissent Justice Justice stated: Zappala
The PCRA court determined that no Appellant suffered prejudice by his counsel’s failure to diminished pursue [a capacity] defense. It held that it would have found had, exhibited, intent to kill specific despite psychiatrist’s] revised diagnosis presented [the as at the PCRA I hearing. believe the PCRA court as well majority as the fails to consider the full effect of counsel’s error in provide the documents needed to correctly Rather, diagnose Appellant. their consideration is limited psychiatrist’s] whether testimony during [the the PCRA hearing would have been sufficient to establish reasonable doubt against when set evidence offered the Com- at trial. may monwealth This indeed been proper have analysis Appellant presented had psychiatrist’s] revised [the diagnosis However, as after-discovered evidence. the [psy- diagnosis, revised set her against testimony chiatrist’s] at *28 trial, is offered to show counsel’s ineffectiveness in failing to pursue vigorous and viable defense. Counsel’s failures precluded not only psychiatrist’s] correct testimony [the at trial, evidence, any but also other which was not discovered due to impossible counsel’s failure. it Since is for the fully anticipate properly trier of fact weigh presented, impossible [not] defense that was ... it is the PCRA preju- court to state that was not diced such failure. added). J.,
Id. at 531 (Zappala, dissenting) (emphasis This reasoning equally applicable here. Accordingly, case, Stevens, as in I would remand to the PCRA court for reconsideration of claim that counsel was ineffec- tive for failing provide Dr. Kruszewski with Appellant’s records and for otherwise
mental health and school capacity a diminished de- present adequately investigate hearing. degree guilt fense at his 866A.2d 313 Mother, Nesmith, Sr., Father, PRATT, Michael Sharon Right Individually Parents and and in Their Own as Nesmith, for Michael Jr. Natural Guardians HOSPITAL, Souder, M.D., Marga Ronald CHRISTOPHER’S ST. Services, Fisher, M.D., Health Covenant ret Covenant House Emergency Physician(s) House, Inc., Hospital As Germantown Novak, sociates, Inc., Stephen Raphael, M.D. and Nellie M.D. Souder, Margaret Fisher, Appeal M.D. of: Ronald M.D. and Supreme Pennsylvania. Court
Argued Oct. 2004. Decided Jan.