Lead Opinion
Following a jury trial between January 10 and January 22, 1986, Appellant Roland William Steele was convicted of three counts of first-degree murder, two counts of robbery, and two counts of theft by unlawful taking. The same jury fixed the punishment at three separate death sentences for the first-degree murder convictions. On direct appeal, this Court affirmed the convictions and death sentences. See Commonwealth v. Steele,
The facts of this case, while long and complex, are relevant to the disposition of this case. The bodies of Lucille Horner, age 88, Minnie Warrick, age 86, and Sarah Kuntz, age 85, were found on the morning of June 22, 1985, in a secluded, wooded area off a dirt road in Cecil Township. Pursuant to the subsequent autopsy, Dr. Earnest L. Abernathy of Washington County determined that the victims were killed the previous day between 12:30 p.m. and 9:30 p.m. At Appellant’s trial, Dr. Abernathy testified that Ms. Horner’s injuries included significant bruising on her
During the investigation, the police learned that the three victims had attended a luncheon together on Friday, June 21 at 1:00 p.m. at the Millcraft Shopping Center, and that they had driven to this event together in Ms. Horner’s car, a beige four-door Dodge Dart. Mildred Stitler testified that on June 21, 1985, she observed, from her apartment window overlooking the shopping center parking lot, an elderly woman standing with a bald, well-dressed, African-American man, identified as Appellant, next to a car. She noticed Appellant pointing to the rear of the car as if something was wrong with the tire. The two got into the car, with Appellant in' the driver’s seat, and drove away, apparently to pick up the other two victims who were waiting for the car at another location in the shopping center. Kimberly Oyler testified that on June 21, 1985, she was at the Millcraft Shopping Center at approximately 2:15, and, as she was parking her car, she observed Appellant holding open the rear door of a vehicle (later determined to be Ms. Horner’s car) as two elderly women entered the rear seat. A third witness, Harry Crothers, testified that he was personally acquainted with Ms. Horner, who was his friend’s mother-in-law. Mr. Crothers owned a shop across the street from the shopping center, and observed Ms. Horner in the passenger seat of her car, with two elderly women in the back seat and Appellant driving, as the vehicle left the shopping center at about 2:30 p.m.
Jоseph Elements, owner of a gas station and convenience store 1.5 miles, or a four minute drive, from where the bodies were found, testified that he observed a cream colored Dodge or Plymouth four-door sedan drive into his station between 3:00 and 3:30 p.m. on the day of the murders, June 21, 1985. Appellant got out of the car, and there were no other occupants in the vehicle. Witnesses inside the store, who identified Appellant from a photographic array, stated that he purchased some soda, and handed a child a gold-chain necklace. He left the store and drove away, heading north. Shortly thereafter, Mr. Elements observed Appellant driving the same vehicle heading south past the station. Appellant appeared a third time, between 4:00 and 4:30, when he coasted into the station with the motor off. An employee assisted Appellant in restarting the car, and he drove away. Mr. Elements identified Ms. Horner’s vehicle as the car he had seen Appellant driving during his multiple stops at the service station throughout the day of the murders. Other witnesses identified the necklace Appellant gave to the child as belonging to Ms. Warrick.
Evidence was also introduced at trial concerning a burglary that occurred that day at the home of Delha Woznicak, which was located three-tenths of a mile, about a
At this time, Appellant resided with his girlfriend, Joan Whitlock, approximately thirty minutes from the Elements service station. Ms. Whitlock’s neighbors testified that on the evening of June 21, 1985, they observed Appellant driving a beige four-door sedan, and saw him unloading from this car items later identified as belonging to the Woznicaks. When Appellant was arrested on June 23, 1985, numerous items identified as the Woznicaks’ were discovered in his possession.
A white vinyl purse, identified as the property of one of the victims and containing credit cards in the name of two victims, Ms. Horner and Ms. Kuntz, was found on the grounds outside a housing project in McKees Rocks, approximately one mile from Ms. Whitlocks’ residence. Ms. Whitlock’s brother resided there, and testified that Appellant visited him the night of June 21, 1985. Alfred Adams testified for the Commonwealth that he grew up with Appellant, and that at one time Appellant had lived approximately 600-800 yards from where the victims’ bodies were found. The Commonwealth also established that Appellant had been an instructor in martial arts, and held a black belt in karate. Further, the Commonwealth submitted expert testimony from FBI Special Agent Andrew Podolak, who testified that he examined samples of a hair found on Appellant’s clothing, and determined that the hair had characteristics similar to that of Ms. Warrick’s, and in his expert opinion, the hair was Ms. Warrick’s.
The Commonwealth’s last witness at trial was Sarah Hair. Ms. Hair testified that on June 18,1985, three days before the murders, at approximately 6:15 p.m., she was sitting in her car in the parking lot of Chartiers Valley Shopping Center in Bridgeville when she was approached by a bald African-American man whom she identified as Appellant. Appellant told her that her car had a flat tire. Ms. Hair inspected the tire, but could see nоthing out of the ordinary. Appellant was persistent, she stated, saying that he observed someone “fooling” with the tire. Appellant attempted to extract a nail from the tire, and after several minutes offered to drive Ms. Hair to a service station to have the tire repaired. She refused his offer, and attempted to drive away. Appellant, however, blocked her from driving away, then bent down and stood up holding a pair of scissors, claiming to have found them under the tire. Ms. Hair took the scissors, saying she would take them to the police. Appellant took them back, and stated that he would take them there. As a result of this incident, Ms. Hair made a complaint with the Collier Township Police.
Appellant testified on his own behalf, denying his involvement in the homicides and the Woznicak burglary. He admitted that he was in the area on June 21, 1985, to see an attorney, but that he left, returning by ear to Pittsburgh at about 12:45 or 1:00 p.m. with a man known to him only as “P.I.” Appellant further testified that he came to be in possession of the Woznicak’s
Following the guilt phase, trial counsel presented the testimony of two individuals at the penalty phase in support of the “catch-all mitigator:
Following the conclusion of the penalty phase, the jury found three aggravating circumstances with respect to Ms. Horner and Ms. Warrick, see 42 Pa.C.S. § 9711(d)(6), (d)(8), and (d)(10), and, with respect to Ms. Kuntz, the jury found two aggravating circumstances, see 42 Pa.C.S. § 9711(d)(8) and (d)(10).
After Appellant’s convictions and death sentence, trial counsel filed post-trial motions, which were denied on March 25, 1988. This Court affirmed Appellant’s sentence on June 5, 1989.
On appeal from the denial of PCRA relief, our standard of review calls for us to determine whether the ruling of the PCRA court is supported by the record and free of legal error. Commonwealth v. Washington,
Further, Appellant must demonstrate that the issues raised in his PCRA petition have not been previously litigated or waived, and that “the failure to litigate the issue prior to or during trial or on direct appeal could not have been the result of any rational strategic or tactical decision by counsel.” Washington,
Appellant now raises seventeen issues of alleged error, many of which involve allegations of ineffective assistance of counsel. In Pennsylvania, counsel is presumed effective, and a defendant bears the burden of proving otherwise. Commonwealth v. Hall,
In accord with these well-established criteria for review, a petitioner must set forth and individually discuss substantively each prong of the Pierce test. Commonwealth v. James Jones,
Guilt Phase
I. Trial Court Error Regarding the Commonwealth’s Expert
Appellant’s first issue is a claim of trial court error regarding the admissibility of the testimony of FBI Special Agent Podolak, who opined that hair samples found on Appellant’s clothing came from one of the victims. Appellant asserts this testimony was false, misleading, and without scientific basis, and therefore inadmissible. The PCRA court found that the challenged testimony of Mr. Podolak was, in fact, admissible, and that even if it was not, its admission was harmless error.
The FBI forensic examination conducted by Mr. Podolak pre-trial resulted in a report indicating that the hair found on Appellant’s clothes shared characteristics with Ms. Warrick’s hair, and was “consistent with having originated from [Ms. Warrick].” Brief for Appellant at 42. The report contained the qualification that “hair comparisons do not constitute' a basis for absolute personal identification.” Id. Trial counsel filed a motion in limine to exclude Mr. Podolak’s testimony on the theory that the opinion described in the report violated the rule of Frye v. United States,
Appellant argues that his rights to a fair trial and due process were violated when the trial court permitted the Commonwealth to introduce Mr. Podolak’s expert testimony regarding the hair samples found on Appellant’s clothing. Specifically,
This issue is waived. Appellant argued before the trial court that it had erred in admitting the opinion evidence of Mr. Podolak regarding the hair samples found on Appellant’s clothing. See Commonwealth v. Steele, Nos. 686-688 of 1985, slip op. at 18-20 (C.P. Washington County, March 3, 1988) (1988 Trial Ct. Op.). On direct appeal to this Court, however, Appellant did not raise the issue. An issue is waived if Appellant “could have raised it but failed to do so before trial, at trial, during unitary review, on a,ppeal or in a prior state postconviction proceeding.” 42 Pa.C.S. § 9544(b) (emphasis added). Here, Appellant plainly could have raised the issue on direct appeal to this Court, but failed to do so. Thus, the claim is waived.
To the extent Appellant alleges ineffective assistance of counsel for failing to pursue this claim of trial court error on direct appeal, Appellant has failed to address and develop meaningfully the three prongs of the ineffectiveness test. See Wharton,
II. Ineffectiveness Stemming from the Hair Analysis
This issue contains several subparts. First, Appellant argues that the Commonwealth violated Pa.R.Crim.P. 305,
Appellant woefully fails to develop any argument regarding the three separate prongs of the ineffective test. His entire argument seems to be directed towards the arguable merit prong. He makes no mention whatsoever of whether counsel had a reasonable basis, or how counsel’s failures prejudiced him. Appellant fails to meet his burden, and his claim must fail. See Jones, supra. Further, we fail to see how counsel can be considered ineffective at the motion in limine hearing. Based on the information contained in the report, trial counsel argued that Mr. Podolak’s testimony should be excluded because the opinion described in the report was not generally accepted in the scientific community. It is not apparent what more counsel could have done, and the fact that the agent subsequently testified conclusively does not render counsel’s performance ineffective at the motion in limine hearing.
Second, Appellant argues that trial counsel was ineffective for failing to object to Agent Podolak’s trial testimony positively connecting the hair found on Appellant’s clothes to Ms. Warrick. Although Appellant argues the arguable merit portion of the ineffectiveness test, he completely ignores the reasonable basis and prejudice prong. As this Court noted in Bracey, “[s]uch an undeveloped argument, which fails to meaningfully discuss and apply the standard governing the review of ineffectiveness claims, simply does not satisfy Appellant’s burden of establishing that he is entitled to any relief.” Bracey,
Third, Appellant argues that counsel was ineffective for failing adequately to cross-examine, impeach, and rebut Mr. Podolak’s testimony. Appellant argues that, had counsel adequately prepared, he could have impeached Agent Podolak’s testimony by the use of “standard treatises” and in numerous other respects, including the following eight points: (1) the uniqueness of cuticle cells and cortical fusi in hair; (2). the subjective nature of hair analysis; (3) the existence of recorded examples of hairs from different individuals that match hairs from other individuals based on all microscopic characteristics; (4) the allegedly exaggerated amount of hairs claimed to be examined by Agent Podolak in relation to the amount of time necessary to adequately examine a single hair; (5) the 67% error rate in hair comparison analysis; (6) the speculative nature of the prosecution’s “secondary transfer” theory regarding the location where the hairs were found;
Appellant contends that counsel was without a reasonable basis for not adequately preparing and cross-examining Agent Podolak on the above points. He also contends that he was prejudiced by trial counsel’s failures because the hair evidence was the only direct evidence linking him to the crime. As such, adequate preparation and cross-examination, according to Appellant, would have likely led to a different result. We disagree.
Appellant cannot demonstrate that he was prejudiced by trial counsel’s actions. Even if we assume that trial counsel’s preparation and cross-examination were inadequate, which we need not take a position on hero, we cannot agree with Appellant that the outcome of the proceeding would likely have been different. See Rios, supra. Even if the jury disregarded the hair evidence, the evidence at trial overwhelmingly demonstrated Appellant’s guilt. Three different eyewitnesses saw Appellant with the victims at, or near, the Millcraft Shopping Center. The first witness observed Appellant approach one of the victims and point to the car’s tire. The same witness watched as Appellant got into the drivers’ seat of the car. The second witness saw Appellant holding the door open for the other two victims as they entered the vehicle. A third witness identified Appellant driving the car around the time in question while his friend’s mother-in-law, Ms. Horner, was in the passenger seat. Appellant was then seen driving the victim’s car later that day at the Elements Service Station.
Testimony was also introduced regarding a burglary that occurred shortly after the murders at the home of Ms. Woznicak, which was a short distance from the Elements Service Station. Appellant was later observed by three witnesses unloading the stolen items from Ms. Warrick’s vehicle into his girlfriend’s home. Ms. Woznicak found a strip of cloth that was later determined to be from the dress worn by Ms. Warrick the day she was murdered. Moreover, the bodies of the victims were found approximately 600-800 yards from Appellant’s childhood home. The Commonwealth introduced testimony that Appellant was a black-belt in karate, which was important because the coroner found that the victims were likely killed by blunt trauma by a human hand. Finally, Ms. Hair testified that just three days before the murder, Appellant tried to gain access to her and her vehicle by fabricating a problem with the vehicle’s tire, going so far as to feign seeing a nail in the tire and a pair of scissors under the tire. All of this evidence is sufficient to establish Appellant’s guilt, even if the jury disregarded the hair comparison evidence. Thus, Appellant’s claim must fail as he cannot demonstrate prejudice.
Fourth, Appellant argues that counsel was ineffective for failing to request, in a timely manner, an expert examination of a hair and a cigarette found in the victim’s car, and that the court abused its discretion by refusing to order the testing that was requested mid-trial.
Appellant fails to address the reasonable basis and prejudice prongs of the ineffectiveness test. Rather, he advances only
III. Admissibility of Hair Analysis Evidence
In another issue, Appellant argues that admission of the hair comparison evidence violated his constitutional rights to due process pursuant to this Court’s decision in Topa,
This issue, to the extent it involves a constitutional question, is waived.
IV. Ineffectiveness Relating to Voir Dire
Appellant next claims that the jury selection process was defective in violation of his rights pursuant to the 5th, 6th, 8th and 14th Amendments to the United States Constitution and Article I, Sections 9 and
First, Appellant argues that trial counsel was ineffective for failing to ask specific questions regarding racial bias and attitudes towards race because this case involved an African-American man charged with murdering three white women. The trial court granted trial counsel permission to ask the following three questions during voir dire: (1) “Do you feel that black people are more likely to commit a crime than white people?;” (2) “Do you have any prejudices towards black people?;” and (3) “Would you give more credence to the testimony of a white person over that of a black person simply because he was a white person?” Brief for Appellant at 64. Appellant alleges that during the voir dire process, trial counsel asked only the first question, rather than all three. This, he claims, rendered counsel ineffective.
Again, in order to be entitled to relief, Appellant must plead and prove by a preponderance of the evidence that (1) the underlying claim has arguable merit; (2) counsel whose effectiveness is at issue did not have a reasonable basis for his action or inaction; and (3) the PCRA petitioner suffered prejudice as a result of counsel’s action or inaction. Pierce,
Assuming arguendo that this claim has arguable merit, we first turn to whether counsel had a reasonable basis for asking only one of the three permitted questions. As the PCRA court noted, an effective attorney may refrain from asking a prospective juror repeatedly about racial bias if he believes doing so may anger, embarrass, or annoy a potential juror that the attorney finds acceptable. PCRA Court Op. at 19. Therefore, counsel may have had a legitimate reason not to ask all three questions concerning racial prejudice to each prospective juror. See Commonwealth v. Richardson,
Moreover, the mere fact that counsel was permitted to ask three questions but only asked one does not alone demonstrate prejudice. Having gotten an answer regarding whether the prospective juror felt that black people were more likely to commit a crime than white people, it is difficult to see how Appellant could persuasively demonstrate prejudice because counsel did not also ask that juror whether he or she had racial prejudices against black people or would credit a white person’s testimony over that of a black person.
Second, Appellant argues trial counsel was ineffective for failing to rehabilitate jurors who showed they were hesitant to impose the death penalty when the prosecutor was “death qualifying” them. Appellant asserts that the prosecutor challenged for cause eleven jurors who initially stated some form of opposition to the death penalty, and trial counsel failed to object or attempt to elicit more detailed information about whether the particular jurors were so predisposed that their personal beliefs would substantially impair their ability to judge the sentencing proceeding fairly. See Witherspoon v. Illinois,
Appellant makes no argument whatsoever regarding the prejudice prong, nor does he argue that he is not required to argue prejudice. Therefore, Appellant is not entitled to relief because of his failure to meaningfully address the necessary prongs of ineffectiveness. See Jones, supra, Bracey, supra. Further, we have held that a trial court is within its discretion to exclude jurors who expressed reservations about imposing the death penalty, and that trial counsel has no constitutional obligation to attempt to change the jurors’ views. See Carson,
Finally, Appellant asserts that the empaneled jurors were not asked if they could impose a life sentence, making it likely that at least one juror was empaneled who would automatically vote for the death penalty.
Appellant relies on Morgan v. Illinois,
A juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do. Indeed, because such a juror has already formed an opinion on the merits, the presence or absence of either aggravating or mitigating circumstances is entirely irrelevant to such a juror.... If even one such juror is empanelled and the death sentence is imposed, the State is disentitled to execute the sentence.
Id. at 729,
It appears that Appellant is arguing trial court error in denying counsel’s requested
We reach the same conclusion here. Appellant was tried and convicted in 1988. This Court rejected his appeal in 1989. Morgan was decided in 1992. Thus, the law at the time of Appellant’s trial did not mandate that juries be questioned on life qualification, and the trial court did not err in rejecting counsel’s questions. See Carson,
V. Instructions Regarding Identification Testimony
Appellant next alleges that his rights pursuant to the 5th, 6th, 8th, and 14th Amendments to the United Stаtes Constitution and Article I, Section 9 of the Pennsylvania Constitution were violated by the trial court’s failure properly to instruct the jury regarding identification testimony. As Appellant notes, identification was a crucial aspect of the case. Appellant asserts that the cross-racial nature of the identification testimony, combined with the racially charged atmosphere of the trial, required careful control of the jury by the court, and the trial court’s failure to instruct the jury regarding the difficult nature of such identifications raised serious questions about the accuracy of the verdict.
This issue has two subparts. The first is in regard to Harry C. Crothers, who testified for the Commonwealth. Mr. Crothers gave a statement to police one week after the homicide indicating that he saw Ms. Horner’s car on the day of the murders and could identify it, but was not in a position to see the occupants clearly, other than observing three elderly women and a bald black man driving. At trial, however, he testified that he saw Appellant driving the car. To counter the Commonwealth’s identification witnesses, including Mr. Crothers, the defense presented the testimony of an expert in perception and memory, who testified regarding matters affecting the reliability of eyewitness identification, specifically cross-racial identifications. Further, the defense presented the testimony of three witnesses who observed a similar looking man, who was not Appellant, in the area around the time of the crimes. In light of this defense testimony, including the testimony of the defense expert, trial counsel requested an instruction with respect to Mr. Crothers, “in an effort to channel the jury in the direction of careful reasoned consideration and steer the jury away from conjecture.” Brief for Appellant at 76. The requested
A victim or other witness can sometimes make a mistake when trying to identify the criminal. If certain factors are present, the accuracy of identification testimony is so doubtful that a jury must receive it with caution. Identification testimony must be received with caution (if the witness because of bad position, poor lighting or other reasons did not have a good opportunity to observe the criminal) (if the witness in his testimony is not positive as to identity) (if the witness’ positive testimony is weakened [by qualifications, hedging or inconsistencies in the rest of his testimony] [by his not identifying the defendant, or identifying someone else, as the criminal (at a lineup) (when showing photographs) (_) before the trial]) (if, before the trial, the defendant’s request for a (lineup) (__) to test the ability of the witness to make an identification was denied and the witness subsequently made a less reliable identification) (if,-)•
Brief for Appellant at 76-77 (quoting Standard Jury Instructions, 4.07). The trial court rejected this request.
Appellant now argues that the trial court erred in denying the requested instruction, based on the Standard Jury Instructions, regarding how the jury should assess the credibility and weight of an identification witness. We find this claim to be waived. Appellant raised it before the trial court after his conviction and sentence. See PCRA Ct. Op. at 23 (citing 1988 Trial Ct. Op.). However, Appellant did not pursue the claim on direct appeal to this Court, although he could have. See 42 Pa.C.S. § 9544(b) (stating that a claim is waived if an appellant could have raised it but failed to do so on appeal). To the extent counsel was ineffective for failing to pursue this claim on appeal, Appellant fails to discuss and apply the governing ineffectiveness standard. As such, his сlaim fails. See Bracey, supra.
Second, Appellant argues that although the defense presented testimony concerning the unreliability of cross-racial identification, counsel did not request and the trial court did not give any instruction on that evidence. Because trial counsel did not request such an instruction, any claim of trial court error is waived. Although Appellant tags on a bald claim of trial counsel ineffectiveness for failing to preserve this issue, this underdeveloped argument, as with many of the issues discussed above, fails meaningfully to discuss and apply the governing ineffectiveness standard. As such, his claim fails. See Bracey, supra.
VI. Trial Court’s Unanimity Instructions
Appellant next contends that his constitutional rights were violated because the trial court’s instruction on unanimity improperly instructed the jury that it must find Appellant guilty, and that no other verdict was acceptable, even though the law allows and provides for circumstances where a jury cannot agree. The court stated:
No matter what your verdict may be, it must be unanimous, that is, it must reflect the unanimous choice of each and every one of you on each charge or count. Each and everyone of you must concur and agree on the final verdict which you will return here in open court. Any verdict which does not reflect the view of each and everyone of you would be improper and we could not accept it. In other words, you cannot come back in court and say that you are seven to five, nine to three, ten to two or anything likethat. The verdict must be unanimous, either guilty or not guilty on each charge.
Notes of Testimony (N.T.) at 1484. Appellant contends that this instruction created a real risk that a juror would surrender his or her feelings and beliefs about the case in order to reach a unanimous verdict. In short, he claims this instruction was “judicial coercion.” Brief for Appellant at 80. See Commonwealth v. Chester,
We are again compelled to find the merits of this claim waived. Trial counsel did not object to the jury instruction at trial. Thus, the issue is not properly preserved. Commonwealth v. Pressley,
VII. Prosecutorial Misconduct
Appellant’s next claim involves multiple allegations of prosecutorial misconduct for making allegedly inflammatory and improper statements during closing arguments at both the guilt and penalty phases. Trial counsel objected to only one of the statements made by the prosecutor that Appellant now challenges. Thus, any challenges to statements to which counsel did not object are waived as they were not properly preserved. Commonwealth v. Williams,
VIII. Jury Deliberations
In his last guilt phase claim, Appellant argues that his due process rights and right to a fair and impartial jury were violated by the racial prejudice of one of the jurors, predisposed opinions regarding Appellant’s guilt, and deliberative discussions that were held prior to formal deliberation. Appellant references an declaration of one of the jurors, who stated that race was an issue from the inception of the trial. The juror stated in his declaration that “early in the trial one of the other jurors commented on the race of the defendant. He also noted the race of three victims and stated that, on that basis alone, the defendant was probably guilty.” Declaration of Danny Mellow, January 11, 2000. The juror continued:
I was upset that he would articulate his prejudice and speculate on the guilt of the defendant, ignoring the instructions of Judge Bell.... His comments continued at other breaks and he made very racist remarks. First one juror, then two or three more gradually became drawn to his position as the first week wore on. These jurors also belittled the efforts of the defense lawyer. They were openly critical of him and actually made fun of him.
Id. The juror also stated that the juror that made the racist remark said, during
The general rule regarding post-verdict jury testimony is codified in Pennsylvania Rule of Evidence 606(b), which states:
Upon an inquiry into the validity of a verdict, ... a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions in reaching a decision upon the verdict or concerning the juror’s mental processes in connection therewith, and a juror’s affidavit or evidence of any statement by the 'juror about any of these subjects may not be received. However, a juror may testify concerning whether prejudicial facts not of record, and beyond common knowledge and experience, were improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.
Pa.R.E. 606(b). This rule is often referred to as the “no impeachment rule.” Carter v. U.S. Steel Corp.,
Despite Appellant’s contentions, the exception to the general no impeachment rule is not implicated here. The exception only applies to outside influences, not statements made by the jurors themselves. See Carter,
Penalty Phase
IX. Atkins
Appellant raises a claim that he is mentally retarded and that his death sentence is unconstitutional pursuant to Atkins v. Virginia,
Because Appellant could not have raised his Atkins claim before the PCRA court due to the pendency of his first PCRA petition, his only option is to raise it in a second PCRA petition filed within sixty
X. Penalty Phase Closing Argument
We next address Appellant’s challenge to counsel’s closing argument during the penalty phase. As noted, Appellant was represented by two attorneys at the guilt and penalty phases: Attorney Liekar and Attorney Tershel. Attorney Liekar handled the vast majority of the pretrial investigation and preparation for the guilt and penalty phases, and Attorney Tershel was involved in the pre-trial investigation to a lesser extent. During trial, Attorney Tershel actually litigated the case during the guilt and penalty phase and presented both closing arguments while Attorney Liekar, though present, did not say anything on the record. Attorney Liekar passed away following the direct appeal, before Appellant filed the PCRA petition raising claims of ineffectiveness. Consequently, only Attorney Tershel was available to testify at the PCRA hearing. In raising his various claims of counsel ineffectiveness, Appellant does not distinguish between these attorneys but generally refers to “counsel.” It appears, however, given his references to Attorney Tershel’s PCRA testimony, that when Appellant refers to “counsel,” he is specifically referring to Attorney Tershel. He does not mention Attorney Liekar or acknowledge his role in preparing for trial. For ease of discussion, we will refer to counsel collectively as “counsel” and individually by name.
At the penalty phase hearing, Attorney Tershel presented the testimony of Mr. Stephens, who explained that when he was a small child, he was walking along a railroad bed when his foot became caught in the tracks. A train was fast approaching, and Mr. Stephens was unable to free himself. Although there were other people around at thе time, only Appellant risked his life to do anything. Appellant ran from “out of nowhere,” N.T. at 1556, and saved Mr. Stephens’s life by throwing him from the track at great personal peril. Additionally, Appellant’s mother testified. She corroborated Mr. Stephens’ testimony and told the jury that as a result of saving Mr. Stephens’ life, Appellant received the Carnegie Hero Award, which included $500 and a bronze metal. She also testified that although Appellant had been in jail before, he had never been violent or harmed anyone; had never flown into a fit of rage; and had always been protective and loving to his family. N.T. at 1559-60. This evidence was offered in support of the
Appellant contends that rather than focusing on this mitigation evidence in closing, Attorney Tershel effectively abandoned him by attacking the jury’s guilt-phase verdict, implying that the juiy rushed the verdict so that the jurors could go home, and suggested that it would similarly rush to a death verdict. The entirety of Attorney Tershel’s penalty phase argument follows:
Ladies and gentlemen, you’ve reached a verdict of guilty in this case. I can' see somewhat how you come to that conclusion, but I don’t know how you can be so sure to convict someone to die. There still is no hard evidence that Roland Steele ever harmed anyone here. We have circumstantial evidence that he committed a robbery and committed a theft, but you’ve got nothing that he harmed anybody. You wouldn’t listen to the witnesses who testified that there was not evidence that he harmed them with his hands and there was no blood or fingernail scrapings, nothing. You just listened to what happened to these women which is bad. You got caught up like everybody got caught up. This man never did anything to hurt anybody before. Do you think that he would do this one time and he would just lose control? Why? He saved a kid’s life. No-one else would risk his life. He’s not a harmful citizen. We told you that going in, he’s not a killer either and there is no evidence that he’s killed these women.
How could you kill someone? How could you beat someone and have nothing on you and no blood? Where did that blood come from?
You got caught up. You were in a hurry to go home. Well, let’s see, it’s almost lunch. Maybe you can get a decision before lunch.
If you don’t think life imprisonment is bad enough punishment in this case ... You’ve waited over there for two weeks, being couped-up [sic] in that hotel. Figure that’s the rest of your life, isn’t that enough?
■ They said they don’t want vengeance. What the hell do you call it ... justice, an eye for an eye? That’s justice? You think that about the case and you think about it. You think about what you heard and you decide.
N.T. 1560-62. Following this argument, Attorney Tershel left the' courtroom while court was in still in session, never to return. He did not come back to hear the Commonwealth’s closing argument, nor the judge’s instructions to the jury. Co-counsel, Attorney Liekar, who had not spoken on the record during the entire trial, remained at the counsel table.
Appellant argues that Attorney Tershel made no argument to encourage the jury to conduct the necessary adversarial testing of the Commonwealth’s evidence. Nor did he make a plea for mercy or spend any meaningful time on the mitigating circumstances he sought to establish. In summary, Appellant argues that Attorney Tershel had no reasonable basis for his actions, and that there can be no reasonable basis for “... defense counsel to make an argument that attacks and insults the jury that will decide his client’s fate.” Brief for Appellant at 23.
These obsеrvations lead, in Appellant’s view, to the conclusion that counsel effectively abandoned him, amounting to a complete denial of Appellant’s right to counsel pursuant to the Sixth Amendment to the United States Constitution. See United States v. Cronic,
At the PCRA hearing, Attorney Tershel explained his closing argument as follows:
Q. Do you remember after you made that closing argument leaving the penalty phase, walking out of the courtroom?
A. Ileft.
Q. Why did you do that?
A. I had nothing more to say.
N.T. PCRA at 79. Later, he indicated that walking out of the courtroom was not something he planned to do, but that he left because he did not want to hear the Commonwealth’s closing argument. Id. at 201-02.
The PCRA court rejected Appellant’s claim of trial counsel ineffectiveness, finding that it lacked arguable merit. The court noted that Attorney Tershel reminded the jury of Appellant’s action of saving someone’s life and that he was not a violent person. The court also found that Attorney Tershel pled for mercy with the statement “If you don’t think life imprisonment is bad enough punishment in this case ... You’ve waited over there for two weeks, being couped-up [sic] in that hotel. Figure that for the rest of your life, isn’t that enough?” Finally, the court found that Attorney Tershel “strongly” directed the jury to consider the mitigation evidence with the statement: “You think about what you heard and you decide.” PCRA Ct. Op. at 47. The PCRA court also found that Attorney Tershel had a reasonable basis for his actions: it was “clear ... that counsel made his argument to appeal to any residual doubt that the jury might have had,” id., a strategy the court found was not constitutionally prohibited. The court continued:
It is clear that some of trial counsel’s comments to the jury were meant to be sarcastic and to shock the jury into questioning whether they were so convinced of the petitioner’s guilt that they would sentence him to death. Likewise, trial counsel’s conduct in leaving the courtroom after delivering his penalty phase argument, while not something this court encourages, may have served to impress upon the jury the seriousness of the matter and cause them to spend more time deliberating on the appropriate sentence.... While the jury did not deliberate long on this sentence, it is not unreasonable for trial counsel to adopt this type of tactic.
Id. at 48-49.
Cronic relieves an appellant from the burden of proving prejudice where there has been an actual or constructive denial of counsel, i.e., when counsel’s failure has been complete and it is as if the right to counsel has been denied. See Florida v. Nixon,
Cronic recognized that in some cases, the prejudice inquiry of Strickland isnot required because there are certain circumstances “that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” 466 U.S. at 658 ,104 S.Ct. at 2046 . Cronic suggested that where there has been a complete denial of counsel or where thе circumstances are such that any competent attorney would be unable to provide effective assistance, a defendant need not demonstrate that he was prejudiced by counsel’s actions. Id. at 659-62,104 S.Ct. at 2047-48 . The presumed prejudice exception to Strickland has been found to apply where there was an actual or constructive denial of counsel, the state interfered with counsel’s assistance, or counsel had an actual conflict of interest. See [Smith v. Robbins,528 U.S. 259 ,120 S.Ct. 746 ,145 L.Ed.2d 756 (2000) ].
Reaves,
The U.S. Supreme Court, however, has emphasized that such instances are rare. See Nixon,
In light of this precedent and the nature of Appellant’s argument, this issue falls squarely within the Strickland prejudice line of cases, and not within Cronic’s limited exception. The present circumstance—where Attorney Tershel presented the testimony of two witnesses in support of mitigation, elicited testimony favorable to Appellant, and conducted a penalty phase closing argument, and where Attorney Liekar remained in the courtroom after counsel walked out—is unlike' the presumed prejudice scenarios found in Lantzy and Halley, where counsel’s lapse caused the complete default of direct appeals requested by the client. We cannot conclude that Attorney Tershel entirely failed to function as Appellant’s advocate. See Nixon,
In the context of ineffective assistance of counsel, prejudice means “demonstrating that there is a reasonable probability that, but for counsel’s error, the
Attorney Tershel faced a diffiсult task in this regard after the jury rejected Appellant’s claim of innocence and returned three guilty verdicts for first degree murder. The jury had just found Appellant guilty of brutally beating to death three elderly women. On direct appeal, this Court described the horrific nature of the killings in passing upon Appellant’s challenge to the sufficiency of the evidence to support the torture aggravator:
The evidence established that the victims were mercilessly beaten to death in the presence of each other. Doctor Abernathy testified that he performed the first autopsy on the body of Lucille Horner. He stated that the left lobe of her thyroidal gland was almost torn away from the windpipe and that the voice box, larynx, and the vocal cord were torn away. He stated the liver was almost completely shattered and that there was hemorrhaging in the kidneys and the pelvis area of the kidneys. Further that seven (7) ribs on the right side of the rib cage and 8 on the left, had been broken and vertebra to the back bone, had been broken. He testified that the right side of the heart had been almost shattered by a very hard blow. Doctor Abernathy described the conditions of the other bodies as well. He testified that the pattern of injury he found with the autopsy of Mrs. Horner was quite similar to that which he found in subsequent autopsies. He described the injuries in detail to the jury. Notably he testified that Mrs. Kuntz was probably dead or was dying from asphyxia, due to the blow to her throat, before her liver was shattered and her heart was severed. It is reasonable to assume from the nature and extent of the beatings, that the victims suffered considerably. A reasonable inference can be drawn from the method used to kill his victims, that the [appellant] did in fact intend to inflict great pain before he actually did kill. Furthermore Doctor Abernathy described the victims as very old and quite fragile, and the evidence established and the defense stipulated that, the appellant was a martial arts expert and thus the jury could have properly inferred that the appellant’s beating of each victim was unnecessary [sic] painful and was done merely to torture them before striking the final death blow.
Steele,
Nevertheless, despite these difficulties, Attorney Tershel presented two mitigation witnesses in support of the catch-all mitigator, 42 Pa.C.S. § 9711(e)(8). Further, despite Attorney Tershel’s course of action in failing to argue specifically that the jury should find the catch-all mitigator and balance the mitigation evidence against the Commonwealth’s aggravating-circumstances, the jury found the existence of the catch-all mitigator. For all that Appellant argues regarding counsel ineffectiveness in this closing argument, he fails to acknowledge that the jury obviously considered the evidence presented despite (or perhaps because of) the nature of the closing argument.
Given the nature and circumstances of the crimes, the aggravating factors submitted by the Commonwealth, and the jury’s finding of the catch-all mitigator, we conclude that there is no probability that if Attorney Tershel had emphasized the mitigating value of the evidence, particularly that Appellant saved Mr. Stephens’ life, rather than speaking as he did and then walking out, the jury would have returned a verdict of life imprisonment rather than death. Therefore, Appellant has not demonstrated prejudice. See Commonwealth v. Marshall,
XI. Ineffectiveness for Failing to Investigate and Present Life History and Mental Health Mitigation Evidence
Having concluded that Appellant has not demonstrated that he was prejudiced by Attorney Tershel’s penalty phase closing argument, we next address his assertions that counsel were ineffective for failing to investigate and present life history and mental health mitigation. Attorney Tershel and his investigator testified at the limited PCRA hearing regarding the scope of the investigation and presentation of mitigating evidence. Before addressing Appellant’s arguments, we will review the evidence presented at the penalty phase, the evidence provided to the PCRA court, and the PCRA testimony.
Counsels’ penalty phase case consisted of two witnesses. As noted, Mr. Stephens testified that when he was a small child, his foot became caught in the train tracks as a train was fast approaching. Although several people were around, only Appellant risked his life to save him. Appellant’s mother, Ms. Clemons, corroborated Mr. Stephens’ testimony and described that as a result of his heroism, Appellant received a bronze metal and $500 from the Carnegie Hero Award Commission. Ms. Clemons further testified that although Appellant had been previously incarcerated, he had never been violent or harmed anyone, was always protective of and loving to his family, and was not the type of person to strike someone in a fit of rage.
In support of his argument that trial counsel were ineffective for failing adequately to investigate, develop, and present available life history and mental-health mitigation, Appellant submitted to the PCRA court the declarations of several family members who explained that while Appellant was growing up, he was subjected to abject poverty, little supervision, and physical, mental, and emotional abuse from his parents and step-parents; he was ostracized at school because of his family’s poverty; his parents were unable to support
As further support for his argument that counsel ineffectively failed to investigate and present mental health mitigation, Appellant submitted to the PCRA court the May 15, 2000 declaration of Dr. George Woods, a licensed physician specializing in psychiatry and neuropsychiatry, who conducted a psychiatric evaluation of Appellant and reviewed unidentified background materials regarding Appellant and the offenses. Dr. Woods concluded that Appellant experienced a traumatic childhood and had a history of head injuries that resulted in a cognitive disorder not otherwise specified that was evident as impairments of memory, inhibition, problem solving, and executive function. Dr. Woods stated that although Appellant adjusted well to the structured prison setting, he suffered from traumatic stress, which further impaired his functioning in high tension situations. As a result of his evaluation, Dr. Woods determined that at the time of the murders in 1985, Appellant suffered from an extreme mental or emotional disturbance that impaired his ability to conform his conduct to the requirements of the law. See 42 Pa.C.S. § 9711(e)(2), (3).
Dr. Carol Armstrong, a licensed psychologist specializing in neuropsychology, stated in a May 11, 2000 declaration that Appellant suffers from frontal lobe dysfunction resulting from his accidental head injuries.
Dr. Henry Dee, a licensed clinical psychologist, submitted a sworn affidavit dated May 12, 2000, stating that Appellant suffered from cerebral lobe damage which has caused him to be seriously psychologically impaired since before the offenses, and this cerebral damage substantially impaired his capacity to appreciate the consequences of his actions or conform his conduct to the law. Dr. Dee further concluded that the burdens placed on Appellant throughout his childhood constituted mitigating circumstances.
Finally, Appellant submitted the October 28, 1985 psychiatric evaluation of Dr.
Turning to the testimony produced at the PCRA hearing, Michael Reid, who counsel hired to conduct an investigation to assist their defense of Appellant, testified that Appellant’s was the first capital case he had worked on, and that counsel did not request his assistance in connection with the mitigation case until after the guilty verdict. At that time, Mr. Reid contacted Mr. Stephens, who Appellant had saved from the train, and secured his testimony for the penalty phase. Mr. Reid testified that counsel did not request that he obtain the Carnegie Hero Award file completed in connection with Appellant’s award for saving Mr. Stephens’ life. Attorney Tershel did, however, direct Mr. Reid to speak to Appellant’s sister, Lavonne Scott, to obtain information about Appellant’s family background and childhood. N.T. PCRA at 39-40. Consequently, Mr. Reid discussed Appellant’s childhood with his sister at the courthouse following the guilty verdict, and learned of Appellant’s general background, abject poverty, family history, and Appellant’s role in committing robberies because of his family’s dire economic straights. N.T. PCRA at 24-26. In the course of his investigation, Mr. Reid visited Appellant’s childhood home, which he characterized as “squalid.” N.T. PCRA at 26. Mr. Reid conveyed this information to Attorney Tershel, who did not request that he investigate further. N.T. PCRA at 26, 41. Mr. Reid recalled that the focus of the mitigation investigation had been the Carnegie Hero Award. N.T. PCRA at 31.
Attorney Tershel had difficulty recalling his preparation for the penalty phase due to the passage of time between the January, 1986 trial and the May, 2000 PCRA hearing. He could not recall the scope of his mitigation investigation. He stated that before trial, he “personally, probably did nothing” to prepare for the penalty phase; he could not recall. N.T. PCRA at 95. To the best of his recollection, Attorney Tershel had focused on the guilt phase and “certainly wasn’t planning on worrying about the sentencing, I was planning on defending him, which I think I did.” N.T. PCRA at 92. With regard to the penalty phase, Attorney Tershel’s mitigation strategy was to focus on Appellant’s role in saving Mr. Stephens’ life, and argue that “society owed him one back.” N.T. PCRA at 74. In furtherance of this goal, he stated that he called the two best witnesses they had: Ms. Stephens and Appellant’s mother. N.T. PCRA at 116, 198 (“He saved someone’s life, I was hoping the jury would save his life.”). He stated that although he could not remember the details of his preparation, he made a judgment call to prey on the jury’s residual doubt about Appellant’s guilt by focusing on Appellant’s heroic act of saving Mr. Stephens’ life, N.T. PCRA at 196 (“I thought that was the only chance we had”), and did not believe that introducing evidence of Appellant’s impoverished background would help his case. Id.
A. I didn’t see any reason—why would I say this—is that what you’re asking me, why I didn’t say he has five brothers and sisters?
Q: About the poverty in his family?
A: I know a lot of poor people. I didn’t think that was • going—you know, you don’t want to diffuse what you have. You .have a Carnegie Award. What, I’m going to ask him if he has five.brothers or sisters? What is your logic there?
N.T. PCRA at 67. Attorney Tershel felt it was “ludicrous” to present evidence that Appellant had a large family. N.T. PCRA at 73, 93.
Although his recollection was poor, Attorney Tershel recalled that he discussed witnesses with Mr. Reid and Attorney Liekar many times, N.T. PCRA at 96, and he recalled talking to Ivory Wade, one of Appellant’s family members, several times after the conclusion of the guilt phase. N.T. PCRA at 98-99. Further, Attorney Tershel was aware that Appellant had a long history of being incarcerated for burglaries. N.T. PCRA at 54, 186. In the course of preparing for the penalty phase, Attorney Tershel contacted Attorney Romaine, Appellant’s counsel from a prior burglary, to discuss Appellant and determine what kind of witness Appellant was. N.T. PCRA at 58, 98. Attorney Romaine conveyed her belief that Appellant would make a good witness. Id. Although Attorney Tershel did not remember interviewing Appellant’s family specifically about his upbringing, N.T. PCRA at 83, he testified that he was aware of the economic conditions of Appellant’s childhood, and knew Appellant’s parents were divorced. N.T. PCRA at 144-45. He stated that he had no reason to believe that Appellant was abused. Id. at 147.
Regarding discussions with Appellant, Attorney Tershel testified that he talked to Appellant all the time and discussed the case with him every day during the trial. N.T. PCRA at 194, 222. They talked about Appellant’s life and other aspects, and Appellant appeared competent and was cooperative. N.T. PCRA at 84, 128-29. Although he talked to Appellant’s family “numerous times,” id. at 198, he could recall nothing from interviews and conversations with Appellant’s family members or Appellant that would have made him aware of any mental problems
Upon consideration of Appellant’s arguments and the PCRA testimony of Mr. Reid and Attorney Tershel, the PCRA court rejected Appellant’s claim of ineffectiveness for failing to investigate and present life history and mental health mitigation evidence. As a preliminary matter, the PCRA court found that Attorney Lieker handled the vast majority of pretrial investigation and preparation. Further, the PCRA court found significant the time that had lapsed between trial and the PCRA hearing, which caused both the unavailability of Attorney Liekar due to his death and Attorney Tershel’s lack of recollection about Appellant’s trial. Finally, the PCRA court found that because Appellant had wаited so long to file his PCRA petition, it was difficult for the Commonwealth to rebut Appellant’s assertions, and it considered this delay as a factor weighing against the credibility of Appellant’s evidence. PCRA Ct. Op. at 35 (citing Commonwealth v. Alexander,
Examining the arguable merit prong of Appellant’s claim with respect to life history mitigation, see Pierce,
Addressing Appellant’s claim of ineffectiveness with regard to mental health mitigation, the PCRA court found that Appellant failed to prove the arguable merit prong of his claim of trial counsel ineffectiveness. See Pierce,
Having determined that Appellant’s ineffectiveness claim regarding the investigation of mental health mitigation lacked merit, the PCRA court also addressed the reasonable basis prong of the test for counsel ineffectiveness. See Commonwealth v. Malloy,
Before this Court, Appellant argues the three prongs of his claim of counsel ineffectiveness for failing to investigate and present evidence of Appellant’s life history and mental health. Regarding the arguable merit prong of these ineffectiveness claims, Appellant states that all of his family members were available to counsel before and during his triаl, as was the Carnegie Hero Award file, and that counsel should have spoken to his family, become aware of the facts contained in the family’s declarations, and obtained the Carnegie Hero Award file. From these sources, Appellant argues that counsel should have discovered that Appellant had a large family, lived with unemployed parents in poverty, and did poorly in school. Further, Appellant asserts that trial counsel was aware of his extensive criminal background, but failed to contact Attorney Romaine, his prior counsel, to ask about family or mental health mitigation. Had counsel made such inquiries, Appellant asserts that Attorney Romaine would have shared her opinion that Appellant had cognitive difficulties. Appellant further asserts that counsel failed to ask Dr. Berkey to conduct a forensic evaluation for the purpose of presenting mental health mitigation, and failed to provide him with unspecified “background materials.” Brief for Appellant at 27. Additionally, Appellant refers to Dr. Berkey’s conclusion that Appellant suffered from grandiose and paranoid tendencies and from a personality disorder, which he argues should have informed trial counsel of potential mental health issues.
Quite unhelpfully, the Commonwealth’s meager argument on this point is, simply, that Appellant was represented by competent counsel who reasonably determined that the jury was not going to spare Appellant’s life if it heard that he had a hard childhood.
After careful review of the record and consideration of Appellant’s claims, we conclude that the PCRA court’s ruling is free of legal error and supported by the record. See Washington,
Even if we were to assume the arguable merit of Appellant’s argument regarding counsel ineffectiveness for failing to investigate life history mitigation, we also find that the evidence credited by the PCRA court supports its finding that Attorney Tershel’s decision not to introduce life history evidence was a reasonable, tactical decision. Information about Appellant’s childhood environment did not fit into counsels’ mitigation strategy to portray Appellant as heroic and nonviolent. See N.T. PCRA at 67 (“I didn’t think that [evidence of Appellant’s poverty] was going, you know, you don’t want to diffuse what you have.”); Id. at 73 (describing as ludicrous the idea that counsel should have presented evidence of Appellant’s povеrty and large family); Id. at 93 (indicating that evidence of a large, poor family did not fit into counsel’s mitigation strategy). Based on his investigation, counsel concluded that the mitigation case would be stronger if he limited the evidence to testimony concerning
Having concluded that Appellant has not met his burden of proving counsel ineffectiveness with regard to the investigation of life history mitigation, we now turn to his claim that counsel was ineffective for failing to investigate and present mental health mitigation. The PCRA court concluded that this claim fails the arguable merit and reasonable basis prongs of the test for counsel ineffectiveness.
Addressing the arguable merit prong first, we note that, as with all claims of ineffectiveness, Appellant has the burden of proving the arguable merit of his claim that counsel were ineffective for failing to investigate and present mental health mitigation has. Washington,
First, the only evidence we have that Appellant actually sustained head injuries, which allegedly lead to a deterioration in his mental health, is the unsworn declaration of his sister, Ms. Scott, who stated that when Appellant was thirteen, he hit his head after crashing a bicycle, and was once hit in the head by another individual. Declaration of Ms. Scott, January 1, 2000. There are no medical records reflecting these alleged injuries. Similarly, although Dr. Armstrong refers to ten years of pugilistic sports related head injuries in prison, there is no medical evidence regarding these alleged injuries. Further, as the PCRA court found, the declarations of Drs. Armstrong, Woods, and Dee are not persuasive. Preliminarily, although Appellant refers to each of his mental health providers’ declarations as affidavits, the declarations of Drs. Armstrong and Woods cannot properly be characterized as such, because they have not been sworn to by the declarant before an officer authorized to administer oaths. See 1 Pa. C.S. § 1991 (“Affidavit” is defined as “[a] statement in writing of a fact or facts signed by the party making it, sworn to or affirmed before an officer authorized by the laws of this Commonwealth to take acknowledgments of deeds, or authorized to administer oaths, or before the particular officer or individual designated by law as the one before whom it is to or may be taken, and officially certified to in the case of an officer under his seal of office.”). See Hall, 872 A.2d at 1188 (Pa.2005) (declining to characterize as affidavits documents that have not been sworn to by the declarant in accord with 1 Pa.C.S. § 1991). It is questionable whether such unsworn declarations are sufficient to sustain Appellant’s burden. See Commonwealth v. Dennis,
Putting these concerns aside and assuming the truth of the assertions contained in the declarations and Dr. Dee’s affidavit,
Dr. Woods’ declaration suffers from similar concerns. He asserts that he conducted a psychiatric evaluation of Appellant following two interviews of him, a review of “numerous [unidentified] background materials,” and after consulting with Dr. Armstrong. Dr. Woods’ statement tracks the factual assertions regarding Appellant’s childhood found in the unsworn assertions provided by Appellant’s family members. He likewise concluded that at the time of the offense Appellant suffered from an extreme mental or emotional disturbance, and had an impaired ability to conform his conduct to the law, without explaining how he was able to reach this conclusion in 2000 about Appellant’s 1985 mental status. Similarly, Dr. Dee performed a “psychological and neuropsychological test battery” on Appellant, reviewed numerous, unspecified documents regarding him generally, his background, and the trial proceedings. In Dr. Dee’s opinion, Appellant “is a seriously psychologically impaired individual and has been so for many years, since well before the offense at issue.” Affidavit of Dr. Dee, May 12, 2000. As with the other mental health providers, Dr. Dee does not explain how his 2000 evaluation informed his conclusions of Appellant’s mental condition in 1985.
Because of the lack of evidence of head injuries, Appellant’s failure to include or set forth the contents of the mental health providers’ reports, their reliance on unidentified background materials, and their failure to link their conclusions in 2000 to Appellant’s mental condition in 1985, the evidence supports the PCRA court’s conclusion that Appellant has failed to prove the arguable merit prong of his ineffectiveness claim with regard to mental health mitigation. See Washington,
We conclude, therefore, that Appellant has failed to prove the arguable merit of his claim of counsel ineffectiveness with regard to the investigation of mental health mitigation. Even assuming the arguable merit of this argument, however, we conclude that the record further supports the PCRA court’s conclusions with regard to the second prong of ineffectiveness. With regard to this prong, it is well established that trial counsel has an “obligation to conduct a thorough investigation of the defendant’s background.” Commonwealth v. Gorby,
Appellant has failed to demonstrate that counsels’ investigation of mental health mitigation was unreasonable. See Malloy,
Moreover, looking past Dr. Berkey’s report, there is nothing in the record or Appellant’s argument that indicates that counsel’s investigation was unreasonable. There is no evidence that counsel knew or should have known about Appellant’s cognitive difficulties, or that Appellant or anyone else indicated to counsel that Appellant had mental impairments or head injuries that could have led to cognitive difficulties. Additionally, we have Attorney Tershel’s own observations and interactions with Appellant and his family. Attorney Tershel testified that he spoke to Appellant frequently, N.T. PCRA 84, 194, and had no reason to suspect that he had any potential mental heаlth problems. Id. at 127-29. Rather, Appellant appeared competent, coherent, cooperative, was able to communicate effectively, understood what was happening with his case, and gave no indication of mental health issues. Id. at 129, 185, 197.
We have been clear that the reasonableness of counsel’s mitigation investigation depends in part upon the information supplied by the appellant. Malloy,
XII. Ineffectiveness Relating to “Good Conduct” in Prison
Appellant asserts that evidence tending to show the he was a well-behaved and well-adjusted prisoner, from which the jury could draw favorable inferences regarding Appellant’s character and future conduct as a prisoner, if sentenced to life in prison, is admissible mitigating evidence, and trial counsel was ineffective for failing to present such evidence to the jury. See Skipper v. South Carolina,
Specifically, Appellant alleges counsel ineffectiveness for failing to investigate, develop, and present evidence regarding four instances of good conduct in prison. First, after years of incarceration, Appellant had established that he was able to reside in prison with no instances of misconduct. He asserts that counsel could have discovered this fact by simply calling the Department of Corrections (DOC) and requesting Appellant’s records. See Hall v. Washington,
Appellant asserts that there could be no reasonable basis for failing to uncover this evidence, because trial counsel clearly thought that evidence that Appellant saved someone’s life was useful, as that was the focus of counsels’ penalty phase presentation. Appellant further claims that he was prejudiced by these failures, because evidence that he was a model prisoner, an aid to law enforcement, had assisted corrections officers in aiding another inmate, and had saved the lives of two women would
The PCRA court rejected Appellant’s four instances of good conduct as adequate to prove counsel ineffectiveness. First, the PCRA court found no arguable merit to Appellant’s assertion that counsel was ineffective for failing to offer evidence of Appellant’s lack of prison misconduct. The PCRA court noted that there was some question concerning Appellant’s behavior while incarcerated. Specifically, the PCRA testimony revealed that Appellant had appeared in court on preliminary matters clothed in a towel, and had created problems while incarcerated. Additionally, the PCRA court concluded that trial counsel reasonably decided not to introduce evidence of Appellant’s good conduct while incarcerated because, as Attorney Tershel testified, it would not have benefited Appellant to have the jury hear of his long history of incarceration.
Second, the PCRA court noted that Appellant and the FBI agent involved in the investigation of Mr. Wallace testified during the guilt phase concerning Appellant’s role in the investigation, and found that counsel reasonably chose “not to rehash the evidence concerning [Appellant’s] assistance with the FBI at the sentencing phase given that this evidence was introduced in the guilt phase.” PCRA Ct. Op. at 50. Third, the PCRA court concluded that there was no arguable merit to the claim that counsel were ineffective for failing to introduce evidence of Appellant’s role in saving the life of another inmate, because Appellant did not make counsel aware of this event. PCRA Ct. Op. at 51; N.T. PCRA at 199. Finally, regarding Appellant’s role in saving the lives of the two women, the PCRA court found that although this claim had arguable merit, counsel was not unreasonable in failing to introduce this evidence because Attorney Tershel did not find out about it until after the completion of the penalty phase of Appellant’s trial.
We will address separately each piece of evidence that Appellant argues counsel should have obtained and presented to thе jury. First, regarding Appellant’s assertion that he had no instances of misconduct while in prison, he claims that counsel would have discovered this evidence if counsel had obtained Appellant’s DOC records, which were readily available. Appellant bears the burden of proving his ineffectiveness claim. See Cooper,
Next, we address Appellant’s assertion that he helped to save the life of an inmate who had tried to commit suicide in prison, and that counsel was ineffective for failing to investigate and present this evidence to the jury. In support of this contention, Appellant presented a Washington County jail incident report that describes that when two corrections officers investigated a noise, they saw an inmate on the floor, and Appellant helped the officer hold the inmate down while he kicked and convulsed. They discovered a shoestring around the inmate’s neck. Appellant has not demonstrated that he was prejudiced by counsel’s failure to present this evidence. In addition to proving arguable merit and a lack of reasonable strategic basis for counsels’ actions, Appellant must prove that he was prejudiced by counsel’s conduct. See Pierce,
Next, we examine Appellant’s allegation that counsel was ineffective for failing to explain to the jury that it could consider evidence of Appellant’s role in the FBI’s investigation of Mr. Wallace or request a jury instruction in this regard. Even assuming this claim has arguable merit, we find that Appellant has failed to prove that he was prejudiced by counsel’s failure. See Pierce,
Finally, we turn to Appellant’s contentions that he notified Mary and Donna Hoegrel of Mr. McGrogan’s attempt to hire Appellant to kill them. Appellant claims that trial counsel should have presented the Hoegrels to testify at Appellant’s penalty phase hearing, or presented evidence of Appellants’ effort to save them. Before counsel can be found to be ineffective for failing to uncover substantial mitigation evidence, Appellant must demonstrate that such evidence exists. Busanet,
To prove the arguable merit prong of Appellant’s claim of counsel ineffectiveness for failing to call the Hoegrels as witnesses in the penalty phase, see Pierce,
XIII. Jury Instructions Regarding Mitigating Circumstances
Appellant next argues that the penalty phase jury instructions erroneously suggested that the jury must unanimously find a mitigating circumstance, in violation of Mills v. Maryland,
Like the appellants in Dujfey and Cox, Appellant attempts to overcome waiver by asserting that all prior counsel were ineffective for failing to preserve and raise this issue. He does not, however, attempt to develop this aspect of his argument. In any event, we will not deem trial counsel ineffective for failing to anticipate a change in the law. Duffey,
XIV. Victim Impact Evidence
Victim impact evidence, which is “evidence concerning the victim and the impact that the death of the victim has had on the family of the victim....” 42 Pa.C.S. § 9711(a)(2), was inadmissible before December 11, 1995. See Commonwealth v. Romero,
Ms. Paul was a ninety-year old friend of one of the victims, and testified that the victims attended a luncheon she organized on behalf of the “Child Welfare Club.” Appellant acknowledges that the legitimate purpose of this testimony was to narrow the time of death. Brief for Appellant at 90. As the PCRA court found, Ms. Paul’s testimony established that the luncheon was held on June 21, 1985, and began at 12:30 p.m. She established that the meal was served around 1:00, and that all three victims were present for the meal. We agree with the PCRA court that this evidence was introduced to narrow the time of death and was not “evidence concerning the victim and the impact that the
In his closing argument during the penalty phase, the prosecutor highlighted the testimony of Ms. Paul to illustratе that the victims were active, viable people in the community:
I would like to talk to you a little bit about the victims in this case. We know their ages and we know that they were still active, viable people in this community and that probably can best be drawn back in your minds to the testimony of Mrs. Paul who proudly stated that she’s 90 years old and she’s the one that arranged all of this; that luncheon ... that day ... the first day of summer ... the last day of these ladies’ lives.
These ladies lived by themselves and the oldest of the three was the one that drove her car that day. So, these ladies were active, productive members of the community and of society and had every right to live out their golden years and to die of natural causes.
N.T. 1565-66. Again, trial counsel did not object. The PCRA court found that Appellant had failed to prove counsel was ineffective because he was not prejudiced by this argument. We agree that the evidence supports this finding. Specifically, the prosecutor’s characterization of the victims in the closing argument represents a brief section of the closing argument, which spans a total of ten pages. While we take no position on the appropriateness of the characterization of the victims’ role in the community, we conclude that it was fleeting when viewed in the context of the entire closing argument. See Commonwealth v. May,
Although Appellant refers to a comment by trial counsel in closing that he characterizes as victim impact evidence, he does not identify the comment or develop his argument in this regard. Therefore, we cannot consider this vague reference as sufficient development of his claim. See Bracey, supra; Commonwealth v. Natividad,
XV. Instruction Regarding the Torture Aggravator
The trial court instructed the jury that it was permitted to consider whether the offenses in question were committed by means of torture:
Torture is the infliction of a considerable amount of pain and suffering on a victim which is unnecessarily heinous, atrocious or cruel manifesting exceptional depravity.It must be shown beyond a reasonable doubt that the defendant intended to torture his victims to death and the actual commission of the offenses included such concurrent acts as to set the crime apart from the norm of capital felonies, that is the conscientiousness or the pitiless crime which is unnecessarily painful to the victim or victims.
N.T. at 1574. Appellant asserts that this instruction was unconstitutionally vague and overbroad, and that counsel was ineffective for failing to object and for failing to raise this issue on appeal. The PCRA court found that counsel did raise this issue on direct appeal, and this Court addressed it, сoncluding that the claim is previously litigated.
On direct appeal, this Court did indeed consider whether the trial court erred in submitting the question of torture to the jury and whether the jury’s finding of torture was supported by the evidence. Steele,
Moreover the record reflects that the trial court properly charged the jury, by defining torture as the infliction of a considerable amount of pain and by stating that it must be shown beyond a reasonable doubt that the defendant intended to torture his victims to death. There is a presumption in the law that the jury followed the instructions given by the trial judge and thus, properly found that the appellant did intend to torture the victims. Commonwealth v. Stoltzfus,462 Pa. 43 , 55,337 A.2d 873 , 879 (1975) (We will not presume that the jurors disregarded their duty and the instructions of the Court); Dauphin v. Standard Oil Company,312 Pa. 229 , 232,167 A. 287 , 288 (1933) (The presumption is that the jury complied with the court’s instructions).
Id. Therefore, because the question of the trial court’s charge to the jury regarding the torture aggravator was previously litigated and rejected, Appellant cannot satisfy the arguable merit prong of Pierce with regard to counsel’s ineffectiveness. See Commonwealth v. Dennis,
XVI. Ineffectiveness of Counsel
Next, Appellant argues that “all prior counsels’ failures properly to investigate and present each and all of the issues presented in Appellant’s PCRA proceedings and in this appeal were ineffective.” Brief for Appellant at 98. In baldly asserting the ineffectiveness of prior counsel, Appellant has failed to develop this claim in any meaningful fashion. Therefore, Appellant’s boilerplate argument respecting the ineffectiveness of prior counsel is insufficient to establish an entitlement to post-conviction relief. See Rainey,
XVII. Cumulative Effect of Errors
Finally, Appellant contends that he is entitled to relief because the cumulative effect of the errors he asserts denied him a fair trial. We have long held that “no number of failed claims may collectively warrant relief if they fail to do so individually.” Natividad,
Accordingly, the order of the PCRA court is affirmed.
Notes
. This matter was reassigned to this Justice.
. In fact, the top portion of Ms. Warrick's dress was on her body when it was discovered June 22, 1985.
. Dr. Richard Berkey conducted a psychiatric evaluation of Appellant in connection with the guilt phase. Dr. Berkey concluded that Appellant evidenced some grandiose and paranoid tendencies; his thinking was highly organized; there was no indication of bizarre of delusional ideation; and Appellant did not seem psychotic or incompetent. Trial counsel attempted to introduce his testimony during the guilt phase to demonstrate that Appellant was not a violent person. The trial court did not permit this testimony, and this Court affirmed. Steele,
. See 42 Pa.C.S. § 9711(e)(8).
. There is some confusion in the record regarding the name of this individual: he is referred to as Lamont Stephens, Lamont Stevens, and Lamont Anderson. Throughout this opinion we refer to him as Mr. Lamont Stephens, as that was the name published in the Carnegie Hero Fund 1964 Annual Report.
. 42 Pa.C.S. § 9711(d) provides, in relevant part, as follows:
(6) The defendant committed a killing while in the perpetration of a felony.
(8) The offense was committed by means of torture.
(10) The defendant has been convicted of another Federal or State offense, committed either before or at the time of the offense at issuе, for which a sentence of life imprisonment or death was imposable or the defendant was undergoing a sentence of life imprisonment for any reason at the time of the commission of the offense.
. Appellant was represented at trial, post-sentence motions, and on appeal by the same counsel: public defenders John Liekar, Esq., and his first assistant, Paul A. Tershel, Esq. Mr. Liekar died before the . initiation of the PCRA litigation.
. This Court has jurisdiction over Appellant's petition because we directly review the denial of post conviction relief in death penalty cases pursuant to 42 Pa.C.S. § 9546(d).
. We note that the fact that Appellant's first PCRA petition was filed before our decision in Albrecht was decided is irrelevant. The Albrecht rule was merely a clarification of this Court's practice of relaxing the waiver rules, and not a rule of constitutional dimension. Commonwealth v. Bracey,
. Although the merits analysis encompasses the argument that would be made if this were a direct appeal, the petitioner must nevertheless set forth herein the two other prongs of ineffectiveness, because Sixth Amendment ineffectiveness claims are distinct from merits review. Commonwealth v. Collins,
. Appellant's point, as well as that of Justice Saylor, that at the time Appellant filed his brief in 2003 this Court's recent opinions regarding pleading and proof in capital PCRA cases were “confusing, inconsistent and constantly shifting,” brief for Appellant at 7-8, has merit given the difficulties we have acknowledged are present in capital PCRA litigation. See Commonwealth v. Gibson,
In an effort to define his burden to prove trial counsel’s ineffectiveness, Appellant sets forth the three prongs of ineffectiveness outlined above at the beginning of his brief. Brief for Appellant at 10. Defining his burden at the outset of his brief and adequately meeting the burden of developing his substantive claims, however, are not the same thing. When it comes to demonstrating trial counsel’s ineffectiveness for acting or failing to act in specific instances, Appellant has, as noted, opted for assertions of ineffectiveness rather than attempting to demonstrate, for example, how or why the outcome of the trial would have been different but for the act or omission in question. See Rios,
. Appellant alleges that trial counsel was ineffective for failing to secure an expert to refute this allegedly false testimony. This assertion, contained in a single sentence, falls far short of this Court’s requirements for developing ineffectiveness claims. Appellant makes no argument regarding any of the three prongs of the ineffective test, and has not, therefore, carried his burden of establishing that he is entitled to post-conviction relief. See Jones, supra. Further, counsel did, in fact, obtain Dr. Wecht to refute the Commonwealth's expert.
. This rule has since been renumbered to 573.
. The examined hair was found on clothing that was different from what the prosecution proved Appellant was wearing on the day in-question. The prosecution, and Agent Podolak, surmised that the hair was deposited on the clothing Appellant wore the day of the murders and was later transferred to the clothing where it was found by virtue of being in the same closet or in some other similar fashion.
. We rejected the claim that the trial court erred in refusing this request on direct appeal. This aspect of the argument, therefore, is previously litigated. Steele,
. Justice Saylor cites as an example of our allegedly "overly stringent” treatment of Appellant's arguments of ineffectiveness our consideration of the subparts of Appellant's ineffectiveness claim stemming from the hair analysis, which is Claim II. Specifically, in three of the four subparts to this claim, Appellant has failed to argue that he was prejudiced by counsel's conduct. Justice Saylor notes that in connection with Claim I, regarding Appellant's argument of trial court error in admitting the testimony of the Commonwealth's expert, Appellant characterized the expert's testimony as prejudicial, and expresses the view that this assertion in connection with Claim I is equally applicable to Claim II.
With all due respect, characterizing the damaging nature of the expert's testimony, which Appellant contends in Claim I that the trial court erred in admitting, does not obviate Appellant’s burden to demonstrate, in the subparts of his next substantive claim, that the outcome of the trial would have been different but for counsel's omissions: counsel's failure to anticipate that the actual testimony presented by the Commonwealth’s expert differed from the purported testimony offered in the expert report; counsel's failure to object to the agent's positive identification of the hair found on Appellant’s clothes; or counsel’s failure to request an expert examination of another hair and a cigarette found in the victim’s car.
. This issue is very similar to the first issue we addressed. In the first issue, Appellant argued that Mr. Podolak's testimony was misleading, whereas in this issue, Appellant argues that hair comparison evidence generally is inadmissible because it does not have general acceptance in the scientific community, as required by Topa.
. To the extent that Appellant argues trial counsel should have moved to exclude the Commonwealth’s hair comparison testimony, as we have already noted, trial counsel did, in fact, file a motion in limine to exclude this evidence.
. "Life-qualification” is the process by which prospective jurors are excluded from the jury based on their fixed opinion that the death penalty must be imposed for a first-degree murder conviction. Commonwealth v. Speight,
. Appellant also asserts that the trial court erred in not ordering the production of the entire voir dire transcript for appellate purposes. See Brief for Appellant at 70-73. However, because we find that Appellant cannot carry his burden of demonstrating he is entitled to relief with regard to any of the claims he raises implicating the jury selection process, we need not address this issue.
. Specifically, Appellant's sister stated that when Appellant was thirteen years old he crashed while riding a bike, and landed on his head. See Declaration of Lavonne Scott, January 1, 2000. In another incident, Appellant "got crackеd in the head by some guy,” which led to recurrent headaches. Id.
. Dr. Armstrong referenced a "significant history of head trauma," including at least one injury in childhood and ten years of pugilistic sport activity including frequent kicks and punches to his head: She did not identify when the sports-related head injuries occurred.
. Specifically, the PCRA court noted that although PCRA counsel was appointed in 1997, the family's declarations were not completed until after Attorney Liekar’s death in 1999. Appellant offered no explanation for the delay from 1997 to 2000, when he filed his amended PCRA petition raising, for the first time, allegations of ineffectiveness.
. In his dissenting opinion, Justice Saylor asserts that we have strayed into uncharted territory by authorizing the PCRA court to render credibility determinations on the basis of the content of the declarations of Appellant's family members rather than requiring an evidentiary hearing with regard to such declarations. Pennsylvania Rule of Criminal Procedure 909(B) requires a court to hold an evidentiary hearing on all genuine issues of material fact raised in a capital PCRA petition. The PCRA court's decision not to hold a hearing will only be reversed when the court abused its discretion. Commonwealth v. Collins,
. Our scope of review is limited to whether the findings of the PCRA court is free from legal error and supported by the record when such evidence is viewed in the light most favorable to the Commonwealth, as the prevailing party. See Collins,
. Appellant asserts that the PCRA court was not entitled to rely on Appellant’s problems of proof resulting from the passage of time and attending difficulties because the Commonwealth failed to assert before the PCRA court that it was prejudiced. Whether the Commonwealth failed to argue prejudice is not relevant: it is Appellant's burden to prove ineffectiveness. What the Commonwealth chooses to argue, or not argue, as the case may be, does not lesson Appellant’s burden in this regard. We are troubled by the Commonwealth's failure to advocate this case, and specifically reference the Commonwealth's one sentence answer on this issue before the PCRA court and one paragraph argument before this Court. This lack of advocacy from the Commonwealth, however, does not alter the fact that Appellant has the burden of proof.
. Regarding Appellant’s argument that counsel was ineffective for failing to obtain the investigative report completed by the Carnegie Hero Fund, the only new evidence that counsel would have discovered from this report is that Appellant had bad grades in school. This evidence would not have fit into the mitigation evidence counsel reasonably decided to present.
. Appellant makes much of the fact that counsel failed to uncover evidence of childhood abuse. Counsel, however, had no reason to believe that Appellant was abused. N.T. PCRA at 147. Appellant has not established that he ever informed counsel of this alleged childhood abuse or that counsel had any notice whatsoever of this alleged childhood abuse after having spoken at various times with not only Appellant but also his family and friends. See Commonwealth v. Hall,
. In his dissenting opinion, Justice Saylor emphasizes Reid's lack of experience and the short time allotted for the mitigation investigation. It appears to be Justice Saylor's position that any mitigation investigation that begins following the guilty verdict is per se unreasonable, without regard to whether counsel had a mitigation strategy that resulted in a thoughtful effort to convince the jury to spare Appellant's life. In a general sense, we share Justice Saylor's concern about the lack of time dedicated to investigating mitigation. We do not believe, however, that this factor alone renders counsels’ performance unreasonable. In this case, counsel prepared a mitigation case. As described above, there was an investigation: counsel investigated Appellant's family history, talked to Appellant and his family numerous times, and secured the testimony of Appellant’s mother and Mr. Stephens. Through this investigation, counsel became aware of Appellant's life history, but found nothing that should have caused them to investigate further or alter their judgment that evidence of family history and poverty would not fit into their strategy of arguing that Appellant's life deserved to be spared because Appellant had previously saved the life of Mr. Stephens.
. Although Appellant purported to provide the PCRA court with the reports of Drs. Armstrong, Woods, and Dee, he did not do so.
. To the extent that Appellant faults counsel for not contacting Ms. Romaine to ask whether, in her opinion, Appellant had cognitive difficulties, the record indicates that counsel did contact Ms. Romaine. Attorney Tershel asked Ms. Romaine's opinion as to whether Appellant would make a good witness. Ms. Romaine responded in the affirmative, and added nothing which might have alerted counsel to explore further Appellant's mental health.
. McGrogan approached Appellant in jail before Appellant was released and killed the three victims in June, 1985.
. The only specific reference to DOC records before our Court is in the declaration of Dr. Woods, who claims to have reviewed, in 2000, "volumes of DOC records that document [Appellant's] life.” Declaration of Dr. Woods, May 15, 2000. It is insufficient to forgo submitting the records that purportedly contain mitigation evidence in favor of relying on an assertion in a declaration that merely implies that such records exist. Further, Dr. Woods did not indicate the time frame these records encompassed, and given that Dr. Woods' evaluation was in 2000, it is entirely likely that his review included DOC records created after Appellant's sentence in 1986.
. It is also noteworthy that there is evidence on the record that counsel was actually aware of Appellant’s role following the inmate’s suicide attempt. Mr. Reid testified that he was instructed, presumably by counsel, to talk to a corrections officer at the Allegheny County courthouse who had witnessed an incident where Appellant saved the life of an individual, see N.T. PCRA at 28, and later referred to this incident as one involving an inmate's suicide attempt, see N.T. PCRA at 46. Mr. Reid obtained this individual's statemеnt and passed it on to counsel. N.T. PCRA at 29.
. The Prothonotary of the Supreme Court is directed to transmit the complete record of this case to the Governor pursuant to 42 Pa.C.S. § 971 l(ij
Concurrence Opinion
concurring.
I join the learned Majority Opinion, but write to two points of elaboration and to address an issue raised by Mr. Justice Saylor’s Dissenting Opinion, regarding whether it would be appropriate to sua sponte remove present counsel for perceived briefing deficiencies.
First, to the Majority’s analysis of appellant’s claims, I would add that this Court recognizes that appellant’s ineffectiveness claims are posed under the Sixth Amendment, and thus, the governing standard is Strickland v. Washington,
While the Majority does acknowledge Strickland, the Majority also speaks of the defense burden “[i]n Pennsylvania.” Majority Op. at 360,
Second, both the Majority Opinion and Justice Saylor’s Dissenting Opinion discuss Commonwealth v. Albrecht,
Turning to Mr. Justice Saylor’s Dissenting Opinion, although my esteemed colleague does not agree with the Court’s assessment of the adequacy of appellant’s briefing in this case and the resultant waiver of claims, he suggests that, given our findings of waiver, sua sponte removal of counsel and remand for appointment of new PCRA counsel is warranted. Dissenting Op. at 430-31,
Appointed counsel of record on appeal is Noah Geary, Esquire, who hails from Washington County, the County where the murders occurred and appellant was tried and convicted. Mr. Geary has filed a 98-page Initial Brief, a 9-page Reply Brief to the Commonwealth’s cursory (and distinctly unhelpful) Brief for Appellee, аnd a thick Appendix of Exhibits. From the record, it is apparent that appellant and his appointed counsel have proceeded with the additional substantial assistance of what is now the Defender Association of Philadelphia’s specialized unit dedicated to capital litigation.
Appellant’s modest, initial “pro se ” PCRA petition was filed in 1996 with the volunteer assistance of Billy Ñolas, Esquire, who at that time was litigation director of the Pennsylvania Post-Conviction Defender Organization (PPCDO). Along with that filing, Attorney Ñolas offered that his organization would be willing to represent appellant if it were appointed to do so by the trial court. See Ñolas Letter to Washington County Clerk of Court, 6/5/96. The following year, on May 15, 1997, Ñolas and co-counsel Robert Dunham, Esquire, who were then associated with a successor Pennsylvania capital defense organization with the moniker Center for Legal Education and Defense Assistance (CLEADA), renewed the request to be appointed to represent appellant. In an opinion dated June 6, 1997, the PCRA judge denied the request, noting that appellant was not entitled to appointed counsel of his choice, and that competent PCRA defense counsel was available for appointment in the county. The court appointed a local attorney to represent appellant; the initial appointed PCRA counsel was permitted to withdraw, however, and the court then appointed Peter K. Darragh, Esquire.
Meanwhile, the Defender Association of Philadelphia, Federal Division, absorbed many of the lawyers who had comprised
After the Commonwealth responded to the amended petition, the Court scheduled a PCRA hearing for May 30, 2000. At the outset of that hearing, the court recited the history of the case, including its approval of the Philadelphia Federal Defender’s voluntary assistance to appointed counsel, which had led the court to grant a continuance. Also on that day, Attorneys Ñolas and Anne Saunders, of what was now styled the Federal Defender Capital Habeas Unit, formally entered their appearances as voluntary counsel for appellant. The PCRA hearing was held that same day, and Defenders Ñolas and Saunders conducted all defense examinations of witnesses.
After the hearing, and while the PCRA petition was still pending, Darragh was granted permission to withdraw and Attorney Geary was appointed. With the exception of the Atkins claim, the Brief filed by Geary in this Court tracks the amended PCRA petition which the Federal Defender had helped to prepare. In addition, the Brief is very familiar in format, style and substance: it reads very much like the briefs the Federal Defender files in capital PCRA cases where it is counsel of record.
In assessing counsel’s Brief, I would consider the background summarized above. Counsel has filed substantial pleadings, and thе PCRA litigation strategy employed throughout was arrived at with the benefit of consultation with the Federal Defender. The Federal Defenders are well-financed, sophisticated and capable capital defense advocates. They well know—better than this Court knows—the effect that their state-side litigation advice and decisions will have upon the prospect for’federal habeas corpus relief. I believe that the structure and content of appellant’s petition below, and his Brief in this appeal, are the result of a fully realized capital collateral litigation strategy, one whose primary concern is with laying the groundwork for anticipated federal habeas corpus relief.
This Brief, like other briefs filed by the Federal Defender in the same general time frame, poses the issues in a very distinct and deliberate way. In its statement of the scope and standard of review, in its summary of argument, and in the lengthy preamble to the argument (entitled “Eligibility For Relief And The Nature Of Appellant’s Claims”), the Brief is careful to characterize claims in the alternative. Thus, the Brief first declares that appellant is eligible for relief on his “substantive claims of federal constitutional error.” In this regard, the Brief says that appellant “seeks substantive review of his claims under the established principles of constitutional law noted in this brief’ and cites the direct review harmless error standard. The Brief then asserts, as “additional
A defendant’s prospects for federal habeas relief can turn upon the form of a claim. A preserved “constitutional” claim, subject to a direct appeal standard of review (where harmless error would have to be proven beyond a reasonable doubt by the Commonwealth), is preferable to a derivative constitutional claim, such as ineffective assistance of counsel. Under Strickland, there is a presumption of competency to overcome, mere error is not enough if counsel acted reasonably, and actual prejudice must be proven by the defense. A defendant with counsel who are savvy to federal habeas standards would make every effort to pose his state collateral claims in a way that maximizes the prospect of securing the more favorable review standard. I believe that it is highly likely that counsel in this case have their federal strategy carefully mapped out, and that strategy dictated the form of the Brief, including the allocation of space to development of direct review claims versus collateral claims. It is a strategy that may be borne of an anticipation that, if and when appellant proceeds to federal review, he will argue something along the lines of: I posed my PCRA claims as claims of direct constitutional error in state court; I was entitled to do so under relaxed waiver or some other theory; the Pennsylvania Supreme Court’s findings of procedural default should not be honored; and my underlying claims therefore should be reviewed, on their merits, without deferring to anything the Pennsylvania state courts had to say. Even with respect to appellant’s alternative allegations of counsel ineffectiveness, collateral counsel will probably articulate a theory of why they believe the state defaults this Court has found should be disregarded.
Material briefing deficiencies respecting the Strickland versions of appellant’s claims are important to this Court, of course, because Pennsylvania law does not permit appellants to pursue waived claims, and Strickland claims are not self-proving. But, as I have addressed elsewhere, there is a difference between what this Court has the power to do, given the terms of the PCRA, and the respect our restrained decisions will be shown on federal habeas review. See Ford,
For purposes of sua sponte assessing the performance of PCRA counsel here, the point is that a capital defendant’s collateral litigation incentives do not necessarily dovetail with this Court’s limited, authorized review on collateral attack.
. I do note, however, that it is not self-evident why (1) counsel should not be heard before removal; and (2) counsel should be replaced, and the PCRA appeal expense doubled, rather than be ordered to file a conforming brief.
. According to a recent article in The Legal Intelligencer, the size of the Federal Defender's capital habeas unit has ballooned from three lawyers in 1996 to "to 36 lawyers and an overall staff of 83” today. Shannon P. Duffy, Skipper is New Chief Federal Defender, The Legal Intelligencer, Dec. 2, 2008, at 1.
Dissenting Opinion
dissenting.
Appellant raises nine claims going specifically to the guilt phasе of his trial, which he labels IV through XI and XV. The majority indicates that claims IV, VI, VIII, IX, X, and XI are unreviewable due to a deficient appellate presentation and denies review in part on claims V and VII for the same reason.
The majority thus declines to review approximately seventy percent of Appellant’s guilt-phase claims, due to the repeated failure on the part of his present attorney to meet requirements for appellate briefing. Appellant’s brief, however, was filed in 2008, in a time period in which the requirements for appellate briefing in capital cases were in transition, given that the Court had recently abolished the doctrine of relaxed waiver and was divided concerning the form and degree of development required. Appellant attempts to address such difficulty as follows:
It is respectfully submitted that this Court’s recent opinions regarding pleading and proof in capital PCRA cases are confusing, inconsistent and constantly shifting.5 Appellant’s brief is his attempt to comply with the vacillating requirements of the Court’s decisions.
Brief for Appellant at 7-8.
By way of example, the majority indicates that Appellant failed, in several subparts of his claim of ineffectiveness deriving from expert hair analysis presented by the Commonwealth, to make any mention of prejudice.. See, e.g., Majority Opinion, at 364-65,
In light of the majority’s holding that Appellant’s counsel has forfeited, seventy-percent of his claims by failing to meet briefing requirements, I note that a capital post-conviction petitioner maintains a rule-based entitlement to effective assistance of PCRA counsel on a first petition. See Commonwealth v. Priovolosernest,
The majority does undertake to resolve, on the merits, Appellant’s claim of deficient stewardship for failing to investigate and present mitigating circumstances at the penalty phase of trial. See Majority Opinion, op. at 397-411,
In my view, the majority’s reasoning rests on an incomplete assessment of both the record and the prevailing requirements of the law. As to the record, I find it important that Reid testified that he had no experience with investigating mitigating circumstances, and that he was not asked to conduct a mitigation investigation until after the guilty verdict was rendered. See N.T., May 30, 2000, at 22-23, 30.
Reid’s testimony concerning the timing of his investigation was supported by trial counsel. See, e.g., N.T., May 30, 2000, at 92-93. Further, counsel repeatedly indicated that he, himself, conducted no penalty-phase investigation. Counsel explained:
I can say that my main focus was on the trial and whether or not [Appellant] would be convicted.
That was my main focus. That was what I was focused on, not what I was going to do, you know, down the road. I certainly wasn’t planning on worrying about the sentencing, I was planning on defending him, which I think I did.
N.T., May 30, 2000, at 92; see also id. at 93 (“My assignment was to try the guilt phase, period.”); id. at 97 (“As I said to you, my focus was on the trial, not the penalty phase after we lose. No, I wasn’t focused on that.”). When asked what it is that he did before trial for purposes of the penalty phase, counsel indicated, “I, personally, probably did nothing.” N.T., May 30, 2000, at 95.
Wbiile it is unknown whether predecessor counsel may have conducted a more thorough mitigation investigation, it seems reasonably clear that the one undertaken by trial counsel and Reid was insufficient
In this case, trial counsel’s ineffectiveness is also manifest on the actual record of the penalty-phase proceedings, where he berated the jurors for their guilt verdict, see Majority Opinion, op. at 381-82,
At the center of this issue is the PCRA court’s approach in making various credibility judgments based on written witness declarations. See Commonwealth v. Steele, Nos. 686, 687, 688 of 1985, slip op. at 37-38, 41 (C.P.Wash. Sept. 26, 2001). This is in substantial tension with our rules, which implicate an evidentiary hearing where there are material facts in issue. See, Pa.R.Crim.P. 909(B). Given the breadth of the written submissions rejected by the PCRA court on credibility grounds, it seems to me that the majority strays well into uncharted territory in terms of authorizing post-conviction courts to issue summary dispositions despite factual controversy. Moreover, in the absence of a consistent direction set by this Court, it appears evident that we will continue to see disparate approaches among different PCRA judges concerning 'when, and to what degree, a hearing is permitted. In my view, the interests of justice would be best served by consistently requiring adherence to the core principle that, where there are disputed facts in issue, a hearing is required to permit fair development. Thus, I would remand for a supplemental post-conviction hearing.
. Specifically, the majority focuses on present counsel's failure to develop his arguments in terms of the standard governing claims for ineffective assistance of counsel. See, e.g., Majority Opinion at 364-65,
. See Commonwealth v. Uderra, No. 5152-5158, Oct. Term 1991 (Phil. CCP May 24, 2002) (Poserina, J.) at 5 n. 5 (this Court’s “recent decisions [on issues of ineffective assistance of counsel] show a fractured court, with no clear majority consensus on these issues”); Commonwealth v. Jerry Marshall,
. In various contexts, this Court has acknowledged the difficulties presented in addressing capital litigation. See, e.g., Commonwealth v. Gibson,
. Indeed, in terms of depth of development, I am unable to distinguish Appellant’s treatment of various of his claims from presentations garnering merits review in the recent past.
I also respectfully maintain my difference with the characterization of Commonwealth v. Albrecht,
. Notably, the majority ultimately undertakes to address the argument concerning prejudice, albeit in connection with a single subpart of Appellant's claim. See Majority Opinion at 365-68,
. The majority mentions such factors in passing, as well as others discussed below, see Majority Opinion at 392-93,
. The importance of a thorough life-history investigation is due to its potential impact on the penalty verdict. See generally Penry v. Lynaugh,
. In finding reasonable strategy, the majority also faults Appellant for failing to advise counsel of childhood abuse. See Majority Opinion at 402 n. 28,
. Counsel testified that his overriding strategy in the penalty proceedings was to "try to put doubt back into [the juror’s] minds.” N.T., May 30, 2000, at 73; accord id. at 196 (reflecting counsel’s characterization of residual doubt as "the only chance we had”). Even if such strategy was not ill conceived in the first instance when viewed against the Commonwealth's case for guilt, proper implementation obviously would require reasonable sensitivity to the jurors’ perspective. Such sensitivity, however, clearly is lacking in trial counsel’s actual performance.
. The majority's rejection of the mental-health evidence appears to be based, in large part, on a set of enhanced requirements for evidentiary proffers. See Majority Opinion at 403-07,
. Appellant specifically argues that his Atkins claim is cognizable in habeas corpus, independent of the PCRA. See Brief for Appellant at 16-17. The majority, however, summarily declares that such claims are subject to the PCRA's one-year time bar without any developed consideration of this argument. See Majority Opinion at 380,