*1 Pennsylvania, Appellee, COMMONWEALTH SMITH, Appellant. Brian Pennsylvania. Supreme Court 25, 1995. Argued Jan. 6, 1996.
Reargued March May 1996. Decided *9 Pittston, Smith, Chester, for Deady, Gerald West Brian Appellant. Barre, Olszewski, Gartley,
Peter Paul and Scott Wilkes Graci, General, A Attorney Harrisburg, Robert Office Appellee. FLAHERTY, ZAPPALA, CASTILLE,
Before NIGRO NEWMAN, JJ. THE JUDGMENT
OPINION ANNOUNCING THE COURT OF *10 FLAHERTY, Justice. jury a trial in the Court of Pleas of
Following Common Smith, on County, guilty Brian was found appellant, Luzerne 17, a five- 1991 murder of the September degree first A after which boy. sentencing hearing place took month-old imposed returned a of death.1 The court the jury the verdict appeal direct ensued. present death sentence. The to review capital This court cases the required is Zettlemoyer, v. evidence. Commonwealth of the sufficiency denied, cert. 16, 3, 937, (1982), 26 n. 942 n. 454 A.2d 3 (1983) 970, 103 2444, L.Ed.2d rehearing 77 1327 461 U.S. S.Ct. (1983). 31, denied, 1236, 77 1452 463 U.S. 104 S.Ct. L.Ed.2d whether, viewing review is all applicable The standard of the to light the most favorable the Commonwealth as evidence winner, every a could find of the crime jury verdict element Bryant, v. reasonable doubt. Commonwealth 524 beyond (1990). 564, 567, 574 Pa. A.2d 592 To of the first the Common prove degree, murder must that the defendant killed with a wealth demonstrate 2502(d). § intent to kill. 18 Pa.C.S. The Common specific 1) unlawfully must show: that a human has been being wealth 2) 3) killed; the did the and killing; defendant willful, premeditated was done in a deliberate and killing Mitchell, 546, 551, manner. Pa. 528 599 (1991). force deadly knowingly applied A.2d 626 If a another, to kill is specific the defendant intent as as if the stated the intent to kill at the time evident defendant Meredith, Commonwealth v. applied. the force was Pa. 303, 311,
The record more than reflects evidence was first support degree. sufficient a verdict murder of the circumstances, i.e., aggravating found that 1. The two murder tortured, outweighed and was age victim was under of twelve two i.e., circumstances, mitigating his remorse and mental state. 28,1992, Medashefski, the woman with whom On March Dawn lived, Medashefski’s five-month-old appellant Ryan Leahy, son, with Maura at Ward’s resi- appellant and visited Ward go and left residence to dence. Ward Medashefski Ward’s a bar and remained at the residence with Ms. four children and called sleeping Ryan. Appellant Ward’s twice, Medashefski at the bar after which she and Ward return, appel- to the residence. Upon returned Medashefski’s breathing. lant handed her who was and not Ryan, limp an arrived shortly had called ambulance which the child to The child was on transported hospital. put however, it determined that child was support; life and, thereafter, baby brain dead was removed from life Ryan support. had received Miranda
After he warnings, gave *11 Geisinger a detective at the Medical in Danville a 45- Center in separate minute statement which he detailed three accounts happened Ryan. of what to He claimed that he had initially consumed four to p.m. five beers at 4:00 He said he napped and awoke to hear the on the floor baby gasping, face down mouth, in four-year-old and with blood his and to see Ward’s running up the stairs. He said he tried resuscitation mea- sures and then called an Medashefski and ambulance. appellant story
After the detective told that his was not evidence, appellant consistent with the medical said he had eight played roughly consumed beers and with the child. He couch, on the he had explained sitting tossing while been Ryan baby in the air and leaned too far so that hit back the right the side of his head on the back of the couch. He then and, in put Ryan go, Ryan a car seat as let fell floor, backwards and struck his head on the which is linoleum over concrete. detective again story
The told that his was not appellant gave consistent with the medical evidence and a third account. He said he was the child and playing with in began get rough standing with him. was front of the couch and the couch in dropped baby standing the on baby then the air. The of the
position, and threw rest statement was consistent with the second statement. trial testimony
The at contradicted expert baby’s injuries claim that the were accidental the result rough play. Caggiano Dr. James testified that his examina baby part baby’s tion of the revealed that the of the brain that trauma, that fore breathing controlled had suffered the left bruises, head side of the head had and that fluid was and left also that as baby’s inside the brain. He testified a result clavicle,2 baby have experienced broken would infant’s up, he or struck in the pain every picked time was shaken Also, field of expert ophthalmology head. an testified appellant’s beating baby’s He eyes. as the effect on the baby’s eyes stated the blood in the had exploded, vessels causing pour into corneas and that amount of blood both injuries be necessary extremely force to cause such would severe. coroner, Hudock, Jr., performed
The Dr. E. who George autopsy testified that he found evidence of bone fractures and injuries the head and that the sustained substantial baby pain. baby’s He testified ribs contained breaks which day baby’s occurred the before death and that the left clavicle had a which several old. He fracture was weeks concluded injury that the death “closed with cause of head extensive epicranial and subarachnoid that six to ten hemorrhages,” head, baby’s blows inflicted on the that the blows were were baby’s on at of the head3 and that it would forty percent least injuries. have more than five minutes to inflict taken those *12 Dr. baby experienced Hudock also testified that the sub- stantial Dr. causes pain. compared beating Hudock other death, shooting, stabbing, etc., stated e.g., beating and that pain. one that causes the most He also testified that expert pediatric radiology 2. An in the field at testified trial that approximately victim had a fractured clavicle at to three two suffered age. weeks of Ryan pathologist Leahy 3. A that six forensic testified sustained at least quite eight separate possibly impacts to seven and to the head. elapsed fifteen minutes and one hour before the five- between baby stopped feeling pain. month-old willful, injuries pre- The infliction of these demonstrates a meditated, fully developed and deliberate a adult killing helpless boy. Any man of a five-month-old infant reasonable injuries human would realize that these would cause being death to such a infant. The evidence is more than young sufficient to demonstrate that committed the death- had, acts and at of the a producing killing, specific the time Here, kill viewing intent to the infant. all the evidence winner, light most favorable to the Commonwealth as verdict a could found killing have each element of an intentional beyond a reasonable doubt.
Appellant argues that trial counsel was ineffective from the initial representation through penalty phase. Pierce, 153, 158-59, According to Commonwealth v. 515 Pa. (1987) 527 A.2d progeny, and its the defendant must 1) demonstrate: underlying arguable claim is of 2) merit; unreasonable; performance counsel’s was 3) that counsel’s ineffectiveness prejudiced defendant. While an evidentiary hearing is not mandated in every case that raised, ineffectiveness of counsel is the record reflects that an evidentiary hearing was held on claim that counsel was ineffective and all of appellant’s claims were deemed meritless.
Appellant’s per first contention is that trial counsel’s representation formance was so deficient as to be no at all and, therefore, prejudice should be presumed. Where a review of the record reveals representation that counsel’s deficient, rather, prejudice is not presumed; defendant must prejudice demonstrate actual individual instances. Com Williams, 265, monwealth v.
(1992). This claim is meritless.
Appellant’s second contention is that trial counsel was ineffective at the pre-trial stages proceedings. Appellant argues that in failing counsel was ineffective to have stenographer present testimony to transcribe the notes of
234 that, indicated instead preliminary hearing. from the Counsel *14 to Appellant instructed do so. called no members of the panel support his claim that a meant some- “suggestion” thing jurors less to the than a court “instruction.” This claim is meritless.
Appellant argues then that counsel was ineffective to move for or a of or sequestration change venue venire. The mere existence of does not pre-trial publicity presumption prejudice warrant a of which would a require venue, venire, Com change of change sequestration. a or (1991). Gorby, monwealth v. 98, 108, 527 Pa. 588 A.2d 906 Instead, a defendant must show that subject the case is the prejudicial publicity jurors subject unusual or or that the are Id. pressures. to extraneous influences or In appellant’s case, counsel testified that he extraordinary was aware of no publicity concerning the trial and that the news accounts Further, provided nothing to such motions. support appellant no evidentiary hearing offered evidence at the suggest extraordinary publicity existed. This any claim is without merit. argues also that counsel was ineffective questioning prospective jurors,
when using peremptory and challenges jurors instead of challenging striking for cause and jurors against Counsel, who were the death penalty. an experienced attorney picking juries who had been for twenty years, testified at the evidentiary hearing that he believed the ultimate jury panel explained was fair. He many there were why reasons he challenged potential jurors or struck who may have opposed also been to the death penalty. One reason was jurors he selected he thought sympathetic would be Also, appellant. the record reflects that failed to establish at the evidentiary hearing given that he was not a fair, competent and impartial jury based on trial counsel’s tactics. This claim is meritless.
Appellant’s fourth contention is that counsel ineffective the trial during stage. argues He first that counsel
236 objected testimony about appellant’s prior
should have had such acts after the trial court ruled evidence abusive concerning previous relations be- admissible. Evidence a homicide victim or a defendant’s tween a defendant and threatening relevant and admissible for the prior statements is motive or malice. will, ill purpose proving Ulatoski, 53, 60-61, (1977); 371 A.2d Pa. 564, 573, Bryant, Commonwealth v. case, offered testi- In the Commonwealth to demonstrate motive and from four witnesses order
mony had testimony malice. This demonstrated boy on the baby by throwing baby before: abused the seat, bassinet; couch, by and headfirst into a into car him; him; shaking bruising smacking punching by and and swearing testimony him. also demonstrated at The *15 the physically emotionally that had and abused mother, also testimony This was rele- baby’s Medashefski. it that the appellant’s suggestion vant because contradicted injuries accidental. Counsel testified he had baby’s were in testimony issue of of abuse his brief admissibility raised the issue, that, on he but once the trial court ruled the did not on he trial object the record because believed further Further, he not to ruling correct. did want court’s objecting it. by to the some the evidence highlight jury any has to demonstrate that of the referenced Appellant failed or There no was inadmissible that counsel erred. is evidence this claim. merit to argues also that counsel was ineffective prosecutor said in his object he failed to when
because had lied, because he failed make statements statement, he, an and he conceded that because opening injuries A new appellant, baby. caused the to the trial is such that its prosecutor’s language warranted where the in jury, forming their minds prejudices unavoidable effect hostility they toward the defendant so cannot fixed bias the evidence and render a true verdict. Common weigh Hardcastle, 236, 254, 1101, wealth v. 519 A.2d 1109 Pa. 546 (1988). every A new is not time a required trial defendant
237 alleges prosecutor that a made an or intemperate improper Id. Here, remark. the record reflects that prosecutor’s comments were intended to emphasize that appellant had in provided, his statement police, to the three inconsistent versions of what happened and that his statement conflicted Also, with the medical evidence. the record reflects that appellant himself conceded his statement police and, he caused baby’s injuries further, that counsel fo- issue, cused the on the intent which was the critical question. addition, In appellant has demonstrated no error or prejudice regard with to the prosecutor’s or comments coun- sel’s failure to make an opening statement. This argument lacks merit.
Appellant next argues that counsel was ineffective object to the admissibility of color photographs of the victim. Photographs of a corpse are admissible into evidence where the court determines that the photographs are of such essential evidentiary value that their clearly need outweighs the likelihood of inflaming passions the minds and Petrakovich, Commonwealth v. jurors. 511, 459 Pa. 521, 844, McCutchen, (1974); A.2d Commonwealth v. case, In when the Commonwealth offered the photographs into evi dence, the attorneys had a sidebar discussion followed aby discussion judge’s chambers. Following the discus sions, appellant’s counsel indicated he did object not to the introduction of the photographs. The record reflects that the photographs were introduced to specific demonstrate intent to *16 kill by physical use of force on parts vital body. the Appellant has not argued even that the photographs were and, inflammatory therefore, has failed to demonstrate how the likelihood of inflaming the jurors minds the outweighed the evidentiary value of pictures. the This claim is meritless.
Appellant argues then that counsel was ineffective because he failed to investigate medical evidence or to call medical witnesses who might have helpful, been did not call witnesses, other defense or did not personally meet with 238 not because he does merely Counsel is ineffective
appellant. testimony specialist present not a medical or forensic to call testimony presented expert evaluate the critically which would Yarris, 519 571, v. Commonwealth Pa. by prosecution. the 602, 513, Here, identify has failed to appellant A.2d 529. 549 to any partic who would have testified any specialists medical the helpful have to opinions ular facts or that would been Further, record reflects counsel cross-examined defense. the to attempt in an expert all of the Commonwealth’s witnesses death and to the sound theory explore establish an accidental claim is meritless. prosecution’s theory. ness the This call argument regarding the failure to Appellant’s In to other is likewise without merit. order defense witnesses call a claim that counsel was ineffective for to prevail on 1) witness, the a a defendant establish that: required 2) existed; testify witness was available witness such 3) defense; the knew of or should have know of counsel 4) witness; testify willing of the the witness existence 5) defense; testimony of the of such for the absence have denied him a fair trial. prejudicial so as to witness was See, Horton, 478, 486, 644 Pa.Super. The that six A.2d record reflects witnesses evidentiary hearing this issue. appeared regarding at they appel testified at trial each saw Three would have abusing and did not see appellant lant with victim or One have testified victim on March before. would two, The problems. had mental health last mother, at trial father and would have testified testi concerning appellant’s problems. mental health Counsel not he fied had called these witnesses because believed he hostile, testimony have have they presented been would would what on or would happened that was not relevant March testimony that did not defense. support have presented any prejudice. has or failed to demonstrate error could Finally, pre claims counsel not This appellant. he did not meet pare a defense because with evidentiary record. At claim is not supported *17 hearing, counsel testified that appellant he met with several Also, times to trial and had firm prior grasp a of the case. counsel said that based on with discovery, meetings research, and his own he was understanding confident his potential defenses and was the case. prepared try counsel, Even conceded that when he met with counsel knew what was in the discovery contained materials. has prejudice. demonstrated neither error nor fifth contention
Appellant’s is that counsel was ineffective for failing present points charge object or to to the trial court’s instructions. Appellant argues alternatively that coun- sel should have a requested charge voluntary intoxication can negate specific intent for murder of required the first or degree should have a requested charge voluntary on man- Also, slaughter. recognizing that the evidence was contradic- tory on the question of his alcoholic consumption, appellant argues that counsel failed to develop testimony regarding a defense of intoxication so require as to such an instruction.
None of the relevant supports law claims. Evidence of voluntary intoxication of a defendant may be offered the defendant whenever it is relevant to reduce higher murder from a degree degree to a lower of murder. 18 Also, § Pa.C.S. 308. a charged defendant with murder entitled to have his on charged voluntary manslaughter or involuntary manslaughter request on of counsel when the evidence such a verdict. Commonwealth v. support would Carter, 433, 436, (1983). 502 Pa. 466 A.2d Trial counsel cannot be deemed ineffective for submit points for or charge object to the trial court’s instruction where the charge has been adequately, accurately and clearly Buehl, presented Commonwealth v. jury. to the 1167, 1176 case, In appellant’s he has failed to demonstrate that sufficient evidence of record to support existed the de intoxication, fense of that defense counsel could have devel oped defense, evidence of such or that the trial court’s instruc Also, tion evidence, was defective. the record reflects no evidence, support would referred to no which appellant has Accordingly, had defense voluntary manslaughter. verdict *18 or volun- voluntary a on intoxication charge counsel requested trial, have been requests at both would tary manslaughter to futile failing make is not ineffective for denied. Counsel claim no merit. requests. This has coun contention is that defense sixth Appellant’s argues He first during penalty phase. was the sel ineffective the defense witness thoroughly question did not that counsel quality It is the Commonwealth witnesses. or cross-examine that questions probative of defense is quantity rather than the Here, that the record reflects of the issue of ineffectiveness. two from contradictory testimony able to elicit counsel was directly pain, on the issue of which Commonwealth witnesses an Fur aggravating was factor. related to whether torture ther, persuaded mitigating the that two sentencing jury was existed, i.e., state. mental appellant’s factors remorse demonstrated no error.4 Appellant has that, its jury then the returned argues after Appellant request ineffective for to of counsel was guilt, verdict to jurors the or an the sequestration jury of instruction trial does publicity the The mere existence of avoid media. of which warrant prejudice not would presumption warrant subject must the case is the sequestration; a defendant show See, prejudicial publicity. of unusual or 107-08, In at Gorby, Pa. supra, at case, after judge jury again the trial instructed Also, anyone. not discuss the case with guilty verdict extraordinary has failed demonstrate there appellant to, or did concerning jury trial or the was unable publicity not, with judge’s not to discuss the case follow the instructions tor- Appellant permitting ineffective in 4. also claims that counsel was on the aggravating an circumstance based ture be considered as alleged as an filing the Commonwealth of its notice of torture late aggravating This claim meritless since the record circumstance. i.e., circumstances, age and aggravating two reflects that notice torture, place. arraignment took appellant's before was filed is no merit to this claim.5 anyone. There counsel reversed also claims that Appellant statute. The regard penalty with to the death proof burden you stated: “If find record reflects that counsel outweigh aggrava mitigating circumstances this case circumstances, for the death you do not have to vote ting not, as Counsel did you prison.” can vote life penalty claims, had the burden appellant tell outweighed aggravating proof mitigating circumstances and, no error circumstances. has demonstrated Appellant existed, prejudice no assuming error has shown even in accurately reflects that the trial court since the record on matter. structed this next that counsel was ineffective argues
not
to the
reference to
objecting
improper
Commonwealth’s
phase.
in
statement
in
The
opening
penalty
God
its
the
following
by
prosecutor:
record reflects the
statement
the
That
gone.
“The
of innocence is
It is removed.
presumption
is
in
is. That man stands
Ryan Leahy’s
as final God as
life
this state
today
Appellant argues
a convicted murderer.”
Chambers,
ment violates the command of Commonwealth v.
(1991). There,
558,
prosecutor
528 Pa.
242 jury’s con- law for the interjection religious
constitutes an to this claim. There is no merit sideration. counsel was ineffective argues further
Appellant refused to answer the trial court objecting not when in whether life to the court as to sentencing jury’s question jury claims that had Appellant parole.6 prison permitted meant life Pennsylvania that “life sentence” been informed have returned sentencing jury may parole, without of life. sentencing verdict that, authority under essentially argues Carolina, 114 v. U.S. S.Ct.
of Simmons South (1994), by failing to the trial court erred 129 L.Ed.2d means “life that “life sentence” sentencing jury instruct Christy, This corat held parole.” without that Simmons (1995), mandates A.2d 877 specific request at issue and a dangerousness where future defendant, process denial of due it is a capital is made means.7 phrase what the “life sentence” jury to tell a to refuse the absence of the instruc concluded that The Court Supreme sentenc- a false choice between creating the effect of tion had sentencing jury's judge refused to answer the reflects the 6. The record parole,” prison and told "life in constituted question of whether jurors was not their concern. Simmons, elderly of an for the murder the defendant was tried 7. In prosecu- penalty phase, the During closing arguments at the woman. con- punishment, the should argued fixing Simmons’ tion that in sought counsel to rebut the dangerousness. Simmons' his future sider *20 by presenting evidence dangerousness contention prosecution's future that, problems, he was dan- particular psychological due to Simmons’ prison not be found in a only elderly women who would gerous that, under South the court to instruct setting. Counsel asked law, possi- carry any imprisonment did not a sentence of life Carolina requested grant the instruc- parole. court refused to bility of The trial was sentenced to death. tion and Simmons reversed, ruling had been denied Supreme that Simmons The Court jury reasonably may have process. Court reasoned that the due The parole he were not released on if petitioner could be believed that and, pervaded misunderstanding this to the extent that executed deliberations, creating between a false choice jury's it had the effect of period sentencing limited him to a sentencing petitioner to death and at-, Simmons, at2193. U.S. 114 S.Ct. incarceration. him limited period to a sentencing to death and ing petitioner of incarceration. case, In appellant’s no error. has demonstrated
Appellant
not faced with
sentencing jury was
reflects that the
the record
does not
and Simmons
dangerousness
of future
the issue
Further,
not deemed ineffective
counsel is
apply.
where
an instruction under Simmons
failing
request
Pennsyl
on well-established
were predicated
counsel’s actions
or for
requests8
of such
grant
vania law
prohibiting
appel
three
after
change
years
law would
that the
predict
no error.
has demonstrated
Appellant
conviction.
lant’s
in
that the trial court erred
Appellant
argues
then
aggra
torture as an
jury to consider
allowing
sentencing
in
of torture
ruling
and
that the evidence
vating circumstance
in
of law. This court stated
was sufficient as a matter
(1989)
Thomas,
256,
522 Pa.
Appellant’s only he raised motions because during post-trial ineffective issues, i.e., relating issues to the consideration penalty-phase Appellant argues circumstance. aggravating of torture as an matters raised as issues some that counsel should have phase9 during objected during guilt to which counsel long-standing in accord with sentencing The court's conclusion was 8. prohibited capital juries from precedent Pennsylvania expressly life-without-parole hearing Pennsylvania’s statute. Common- about Christy, A.2d 889 n. 22 217 n. wealth v. been identify any guilt-phase issue that should have fails to 9. post-trial motions. raised *21 244 any fails to demonstrate phase.10 Appellant
the penalty them or that the failure to raise these matters had merit of prejudice. appellant caused was ineffective at argues that counsel
Finally, appellant in mitiga- evidence because he did not submit penalty phase 9711(e) introduction at permits § tion. Pa.C.S. evidence: following of the penalty phase (1) history prior of significant has no The defendant criminal convictions.
(2) influence of extreme was under The defendant mental or emotional disturbance.
(3) the crimi- appreciate of the defendant capacity The conform his conduct to the his conduct or to nality of substantially impaired. law of the requirements (4) of the crime. of the defendant at the time age The (5) duress, although defendant acted under extreme The prosecution to constitute a defense to not such duress as duress), § or acted under (relating 18 Pa.C.S. under person. of another the substantial domination (6) in the defendant’s homi- participant victim was a The to the homicidal acts. cidal conduct or consented (7) act was the homicidal participation The defendant’s minor. relatively
(8) the char- mitigation concerning of Any other evidence and the circumstances and record of the defendant acter his offense. any evi pursued presented neither nor
Trial counsel some phase though even penalty dence of mental state at the appellant have existed. The record reflects may evidence Yet, did not trial counsel problems.11 suffered some mental challenged argues have the trial 10. that counsel should admission, prior objection, evidence of abuse of over defense court’s challenged should have the trial baby. He also claims that counsel allowance, questioning objection, of court's over defense given police com- concerning by the and whether statements the acts. mitted opinion, been informed in this trial counsel had 11. As stated earlier problems. appellant had mental a witness that of mental state mitigating evidence potentially this pursue Nevertheless, mental found phase.12 penalty *22 Thus, appeared mental state factor.13 mitigating state as on the jury nothing which heard sentencing to the important evi some admissible is known is whether issue. What not it, jury existed, for, the heard about if it existed and had dence i.e., in conclusion, life to a might have come different jury the instead of death. prison informed his client where counsel is
We hold that may provide evidence problems suffered some mental has if he phase, counsel ineffective mitigation penalty the of course, not trial counsel is evidence.14 Of pursue fails to such of where mitigation to submit evidence ineffective Buehl, Pa. exists. no such evidence (1986). Here, 383-84, trial counsel regarding appellant’s evidence by failing pursue erred such did not be said that error mental state. It cannot appellant’s parents about this issue and did did contact 12. Counsel not in the pursue by the witness referred to otherwise the matter raised not hearing that he stated previous note. Counsel at ineffectiveness appellant scope questioning so as to minimize of his of limited on damaging questioning by the Commonwealth cross-examination. pursued had counsel might have been different Counsel’s decision for, evi- appellant’s if there was admissible mental state evidence state, potential might that the mental counsel have concluded dence of hearing potential jury by the benefit of the damage outweighed evidence. such discrepancy mitigating apparent between the record an 13. The reflects jury. by the pursued by and those found circumstances appel- penalty phase: pursued mitigating factors at the two death, twenty-one his remorse. age, at the time the victim’s lant’s deliberations, judge use During jury jury whether it could asked the judge yes. mitigating and the said appellant’s state as a factor mental circumstances, Thereafter, found, mitigating as appellant’s mental state and recorded after the fact and remorse (The "mental slip. jury did not state whether on the verdict same distress, capacity or diminished was extreme mental emotional state” duress.) or present evi- not mental-state supra, As discussed trial counsel did 14. however, either; this merit during guilt phase claim lacked dence any defenses claimed failed to establish that because Thus, phase. guilt as a defense in the a chance of success had respecting prejudice was not met. ineffectiveness standard prejudice the result.15 affirmed;
Conviction of murder of the first degree judgment of sentence vacated and remanded for a new sentencing hearing.
NIX, C.J., did not in the consideration participate or decision of this matter.
NEWMAN, J., files a concurring opinion joined by which is CAPPY, J.
NIGRO, J., concurs the result.
CASTILLE, J., files a dissenting opinion.
NEWMAN, Justice, concurring.
I join in the majority’s holding that trial counsel was ineffective for to investigate potentially mitigating evi- dence, thus, a requiring penalty new I hearing, but write separately to emphasize that this Court repeatedly has found that the failure of defense adequately counsel to prepare, case, particularly a capital simply an abdication of the minimum performance required. specifically We have held that a failure investigate records, to witnesses may and/or circumstance, have established a defense or mitigating consti- tutes ineffective assistance of counsel. Perry, Commonwealth v. 385,
In
In Commonwealth v. a second hospital to obtain records attempt trial counsel did not also claim. Trial counsel supported have a self-defense may listed the Common- try eyewitnesses not to interview did attempt did explained file. that he not wealth’s Counsel on the he had relied hospital records because obtain incident description officers’ investigating police victim attacked assertion that the had discount ques- made no effort to that he explained him. Counsel also because, hearing testimony eyewitnesses after tion the he concluded that hearing, at the preliminary one witness may one of them calling any were hostile that witnesses so to his client’s case. have been detrimental in Mabie performance determined that counsel’s We records, Regarding hospital constitutionally not effective. explained: we of [the] and a review discussions with witnesses
Since
may
pursuit
a defense
records
have established
upon
basis of
only
was curtailed
possible
such
defense
file,
decision
information in the Commonwealth’s
counsel’s
be
to have a
cannot
said
investigate
records]
not
[the
interest.
his client’s
designed
effectuate
reasonable basis
Id. at
Regarding the added may presented hostile at have witnesses trial While case, is the question to here difficulties them, refrain not not the decision to decision to interview was no calling Accordingly, at trial. there from them during an inflaming jury danger hostile witnesses degree to what each saw their interview determine Rather, is to of the interview hostility. the value potential may case so that he inform of the facts of the counsel wit- Perhaps, questioning these strategy. formulate after nesses, may counsel have strategy concluded that the best and, was not to call them due to hostility as a matter of strategy, decision on counsel’s would not part be sub- ject to a claim of ineffective assistance of counsel. Howev- er, no such of strategy claim can be attached to a decision not to or an attempt eyewit- interview make to interview prior nesses to trial. Jones,
Id. at
As we stated in the Sixth Amendment demands that give counsel undivided allegiance and faithful devoted service therefore, We, to a client. cannot consider counsel’s failure to evidence, investigate potentially mitigating only based on his assessment of information contained in the discovery materi- als, as a designed protect decision his client’s interests. Perry,
As in not perform we need an analysis extensive perceive the prejudice Appellant’s here, case. Particularly, where the did consider mental state as a mitigating factor, there is a reasonable probability that counsel’s failure investigate evidence relating to Appellant’s mental state affected the outcome of his penalty hearing. The death penalty jury might have rendered a verdict of life imprison- presented ment had counsel Appellant’s evidence of mental therefore, Appellant, state. has established the ineffective-
249 is, thus, and hearing penalty at the of his defense counsel ness hearing. penalty to a new entitled J., opinion. CAPPY, concurring in this joins CASTILLE, Justice, dissenting. of appel- majority’s from reversal respectfully
I dissent penalty new remanding for a order sentence and lant’s death for ineffective trial counsel was hearing on grounds hearing. penalty at the evidence failing mitigating to present a claim that on prevail order is well It established that: ineffective, must demonstrate was trial counsel (2) merit; particu- (1) arguable is of underlying claim basis any did have reasonable not lar course chosen counsel (3) interests; counsel’s his client’s designed to effectuate Ed- Commonwealth v. appellant. prejudiced ineffectiveness (1993), miston, citing, 1078, 210, 237, 1092 634 A.2d 535 Pa. Pierce, 158, 973, 153, A.2d 975 v. 527 Commonwealth (1987). clients’s best acted his presumed to have
Counsel otherwise. prove it is burden interest; thus, Hancharik, 435, A.2d v. Pa. 633 1074 Commonwealth 534 Miller, (1993); Pa. that trial counsel majority The concludes case he failed obtain present in the because
ineffective However, may appel have existed. evidence which mitigating trial counsel was allege even specifically lant does not state as a evidence mental present ineffective for of trial. In his penalty phase mitigating during factor brief, trial failed to alleges that counsel appellant merely sufficient, Although of mitigation. evidence present proper penal listed in the death factors mitigating lists factor, statute,1 specific mitigating on any he does not focus ty support any identify which would any nor does he evidence By identifying appellant’s mental mitigating factor. particular factor counsel should have as which mitigating state job him. performed appellant’s has pursued, majority 9711(e). § 1. 42 Pa.C.S.
However, the burden is upon appellant and upon not this Court to establish ineffective assistance of counsel. Common *26 Jones, wealth v. 222, 236-37, 539 1101, Pa. 651 A.2d 1109 — denied, cert. (1994), U.S.-, 113, 116 S.Ct. 133 L.Ed.2d (1995). 65
Moreover, as the majority acknowledges, appellant’s “men tal state” was one of the two mitigating factors found to exist by jury during penalty phase.2 majority The further notes that trial counsel was aware prior to the penalty phase that appellant had suffered from mental in problems the past. that, The majority given factors, concludes these two trial counsel’s pursue failure to additional evidence of appellant’s so-called mental problems constitutes ineffective assistance of counsel because of the possibility that such a search may have revealed additional evidence which may have jury led the weigh mitigating appellant’s factor of mental state more heavily, thereby in resulting a determination that the mitigat ing may circumstances have outweighed the aggravating cir cumstances, which in turn may have in resulted a different sentence.
The speculative in analysis engaged by majority ignores the fundamental fact that it is always appellant’s burden to demonstrate at the hearing on trial counsel's ineffectiveness that the evidence in question actually existed and would have Jones, been supra; Commonwealth helpful his case. v. Baker, 541, 562, 663, (1992); 531 Pa. 614 A.2d Common 674 Hutchinson, wealth v. 482, 486, 521 Pa. 370, 556 A.2d 372 Hentosh, (1989); Commonwealth v. 325, 334, 520 Pa. 554 A.2d McNeil, (1989); 615-16, 506 Pa. Pettus, (1985); 487 A.2d Commonwealth v. 558, 563, 1332,1335 As the majority candidly admits, appellant present failed to any evidence at the eviden tiary hearing which would establish the existence of evidence of appellant’s mental state which trial counsel supposedly should have prior discovered to the penalty phase. Absent such a showing, appellant has failed to meet his burden of mitigating 2. The other factor found was that had shown remorse for his crime. counsel was ineffective establishing trial has phase, as penalty at the such evidence present By exists. any such evidence to demonstrate failed claim otherwise, majority analyzing holding nothing speculation more that engaging in vacuum an is by those twelve rendered overturning considered verdict Pettus, McNeil, supra. respect- I therefore supra; jurors. of sentence judgment affirm dissent and would fully death. C.J., in the or
NIX, not consideration participate did of this case. decision *27 Pennsylvania, Respondent,
COMMONWEALTH of STEVENS, Andre Petitioner. Appeal. Capital
No. 0075 Supreme Pennsylvania. Court
May 1996. ORDER PER CURIAM. NOW, May, 23rd it is ordered that day
AND this pending for a of execution emergency stay motion petitioner’s certiorari, for a writ of filing petition and resolution stayed pending shall be action and the execution GRANTED petition Court on Supreme the United States v. Ste- ruling certiorari from this Court’s vens, 204, 670 A.2d notes using he took notes and that these stenographer, of a at fully fairly him to cross-examine the witnesses allowed and has to that counsel erred trial. failed demonstrate Appellant the present in have a to transcribe failing stenographer to event, or, caused hearing any in that such failure preliminary him prejudice. in that was argues also counsel ineffective Appellant to insani “meaningful discovery” pursue conduct and the deficiency or intoxication defenses based on ty, mental discovery contained in the materials. Counsel information at the Commonwealth referred to testified that evidence which by sufficiently defense advance of trial was received Further, record adequate preparation. trial permit that familiar appellant very reflects that admitted counsel was discovery of from the with the contents binder obtained that Finally, appellant has failed establish Commonwealth. Appel had a of any the claimed defenses chance success. no lant’s claim has merit. fail argues then that counsel erred three suppress an omnibus motion to ing pre-trial file The mere by appellant. inconsistent statements provided ineffec suppression failure to file a motion does not constitute Stoyko, tiveness. 465 n. case, A.2d n. 2 In counsel testified appellant, he the matter with that thoroughly that discussed acknowledged voluntary, that statements were appellant motion. grounds suppression and that there were no a Further, light proper of the fact received a form Miranda warnings signed rights and waiver of before statements, giving his has not indicated how suppression motion would have been successful. His claim lacks merit. any counsel inef third contention is that Appellant’s not to the trial court’s dining objecting fective voir dire for avoid media accounts the trial. suggestion court, trial at the beginning The record reflects that dire, “suggested” panel voir the entire avoid the media that counsel jurors adequately believed that were