*1 room, need not be outside that is One dialog ongoing. descriptive, “into” be dialog or have word night, jungle, “into” it. building to shoot need not be outside and one the struc- the element “outside adding I cannot concur Superior I affirm the Accordingly, would ture” to this statute. Court. joins dissenting opinion. this
Justice McCAFFERY
962A.2d 1170 Appellee Pennsylvania, COMMONWEALTH VANDIVNER, Appellant. James W. Pennsylvania.
Supreme Court of Sept. 2007. Submitted Decided Jan. 2009. *5 Offices, Eliza- Zerega Law Susan Zerega, Esq.,
Dianne H. Office, Ritz, Public Defender’s Fayette County Esq., beth Uniontown, for James W. Vandivner. General, Harris- Attorney of the
Amy Zapp, Esq., Office Duffield, County District Nancy Esq., Fayette Ann burg, Uniontown, Office, Pennsyl- Attorney’s vania. C.J, SAYLOR, EAKIN, CASTILLE,
BEFORE: GREENSPAN, BAER, TODD, JJ. McCAFFERY OPINION Chief Justice CASTILLE. 12, 2007 February from the appeal direct
This is jury trial before following imposed sentence of death of Common R. Solomon Court the Honorable Gerald lack by appellant The issues raised Fayette County. Pleas of merit; therefore, affirm the judgment we conviction and sentence.1
Jessica Cable and her mother Michelle at 100 Cable lived Street, Grindstone, East *6 Fayette County. July Second On babysitting Jessica at a home. neighbor’s was Between p.m., 8:30 and 9:00 Jessica in the di- appellant driving saw rection of her home and ran immediately home. When she arrived, get she saw out of appellant his vehicle and walk to followed, the back of her home. porch As Jessica appellant through and, entered the home the back walking door while home, through friend, the encountered a family Larry New- man, in the room. living Appellant asked Mi- Larry where was, Larry chelle to pointed the front door. Appellant opened then the door and walked onto porch. the sun outside, the to steps leading On the sun from the porch son, met appellant Michelle and her Billy appellant Cable. As him, “Dude, walked onto the porch, Billy told off get my property.” (“N.T.”), 2/7/07, Notes of Testimony at 36. Appel- Michelle, lant then pointed gun at point, Billy at which on pounced appellant an to attempt gun wrestle the from Appellant his hand. to managed keep the it gun pointed Larry relative, at head. Larry’s Newman’s Kenneth New- man, appellant, then rushed gun the fired. Appellant, who still had the gun, quickly walked to Michelle and told her kill going grabbed hair, was her. He by her the shot her head, and, stated, “There, the as she fell to ground, the you bitch, I said I kill going you.” was at Appellant Id. 39. smiled A away. and walked passing by motorist who was saw Michelle appellant grab by the hair and shoot her the head. Meanwhile, unsuccessfully after attempting gun to take the from had appellant, Billy gone inside the home to look for a his weapon protect family. When he was unable to find a weapon, he left the home. As he stepped off the back porch, Disposition appeal delayed 1. of this the Commonwealth’s initial brief, notwithstanding decision not to file a capital that this is a direct appeal in a Attorney thought matter the District warranted penalty. practice By death Such a unacceptable. order dated 19, 2007, October this Court directed the Commonwealth to file a brief, responsive and the complied. has gun him with walking toward appellant saw
Billy run turned to gun Billy, at who pointed hand. neck and then left Billy in the shot away. Appellant in a field apprehended subsequently Police scene. As handgun. Jennings J22 and recovered State Pennsylvania- room at into an interview being taken Monkelis, barracks, Trooper out to James he blurted Police needle, life I case and don’t want penalty a death “This is life. I have I would plead guilty Tell the DA will for a life. 2/8/07, N.T., Michelle dead.” if I knew myself killed 255. 8, 2004, autopsy Cyril performed Dr. Wecht July
On
homi-
the manner of death was
Michelle and determined
cephalopathy,
of anoxic and
“died as a result
in that she
cide
degeneration,
to the brain tissue with
oxygen
diminution
tissue,
as a result of
necrosis,
produced
of brain
death
early
Id. at 244.
Wecht
to the head.”
wound
gunshot
*7
it to
provided
Michelle’s brain and
the bullet from
recovered
Burlingame,
David
analysis. Corporal
for
J.
Police
the State
toolmark examination
of firearm and
in the field
expert
brain
from Michelle’s
the bullet recovered
determined that
in appellant’s
22
found
Jennings
handgun
the
fired from
apprehension.
at the time of his
possession
to bar' the death
trial,
petition
filed a
appellant
to
Prior
has signifi-
retarded and
mentally
that he is
alleging
penalty,
that,
argued
pursuant
He
adaptive
skills.
cant limitations
2242,
Virginia,
Atkins v.
153
122 S.Ct.
536 U.S.
to
retarded
(2002),
mentally
of a
the execution
L.Ed.2d 335
request-
and
punishment
cruel and unusual
constitutes
person
penalty
the death
to determine whether
hearing
ed a pretrial
a four-
held
Judge
in this instance.
Solomon
be barred
should
present-
petition
appellant
hearing
appellant’s
day
lay
and several
witnesses
testimony
expert
of two
ed the
of a
the
witnesses,
offered
and the Commonwealth
Transporta-
of the
Department
and an official
psychiatrist
failed to
had
appellant
determined
tion.
Solomon
Judge
limitations,
any, began
if
that his
of proving
meet his burden
by the standards
age,
required
years
before
this Court in
determining
for
mental retardation endorsed
(2005).
Miller,
I. of the Evidence *8 Jury Finding Appellant Guilty II. Error of Murder his first Appellant argues together, two issues related to the sufficiency weight of the error jury evidence and finding him of the guilty first-degree murder. Because two claims, are set forth sufficiency weight they issues will together be addressed as such.2 practice, always sufficiency
2. As a matter of this Court reviews the first-degree capital ap- the evidence for murder direct convictions trial presented claims that the evidence
Appellant every trier of fact to find to enable the was insufficient a reasonable doubt. charged beyond of the crimes element the confused and jury it is clear that was He contends murder based first-degree found him guilty could not have he the and unreliable evidence speculative terms upon what contradicted claims inconsistent and which he presented, argues He further and testimonial evidence. physical that he intoxi proposition supports that the evidence argument time of the crime. bases this Appellant cated at the VanDivner, uncle, testified of his Donald who testimony on the a bar from approximately drank beer at appellant that he murder, and that of his day on the p.m. 11 a.m. until brother, VanDivner, to the imbibing, also testified Albert who ball3 of day eight the men with adding began left the bar to smoke they occasionally cocaine and that crack intoxication, alleged appellant crack cocaine. Due to his him of first- insufficient to convict argues, the evidence was . negates the use of intoxicants murder because degree intent for a conviction. specific required addition, incapable that he argues to his diminished intent due forming required specific witness, of a He defense capacity. points Sedlock, stated that overall Adam who psychologist of mental retardation and range of function is in the mild level functional the frontal lobe organic problems that he has brain, ability to think before of his which controls that the did argues or acts. speaks claim; therefore, he capacity posits, his diminished not refute capable forming found that he was jury could not have intent. specific the requisite demonstrat- responds
The Commonwealth the. Ap- to the murder. eyewitnesses ed that there were several witness, neck, in the Jessica Cable Billy shot one Cable pellant sufficiency chal- peals, irrespective' whether the mounts a lenge. E.g., Blakeney, Pa. 946 A.2d Commonwealth v. (2008). n. 3 one-eighth drugs. eight of an ounce of 3. An ball is
627 mother, watched as shot her appellant pointed his gun witness, at the of a Newman, head third Larry and a driver on the passing by street witnessed shooting Michelle Cable the head. The argues Commonwealth heard jury testimony that appellant had consumed alcohol and crack cocaine prior to the shooting but chose not to reduce verdict, noting all, that the jury may disregard part or Further, some of the evidence. the Commonwealth claims that it established that appellant possessed specific intent to that, kill in while armed with a handgun, he grabbed Michelle head, the hair and shot her in the a thereby using deadly weapon a upon part vital body. victim’s Opinion its in Support Jury Sentence, Verdict and trial court found the evidence sufficient to support the first- degree murder conviction in that all of the elements of first- degree murder met. court, were According to the trial (1) evidence established that: eyewitnesses, two Jessica Cable and the driver passing by, testified that appellant approached Michelle, grabbed her by the hair and then shot her (2) head a handgun; Dr. Wecht testified that Michelle died as a gunshot result of a wound to the head and that the (3) homicide; manner of death was the bullet recovered from Michelle’s head fired from the Jennings handgun J22 found in appellant’s possession at the time he appre- (4) hended; just prior shooting Michelle, appellant stated then, he would kill her her, said, after shooting bitch, you “there I I (5) said going to kill you;” and Wecht testified the only gunshot wound Michelle suffered was to her head and that the head is a part vital of the body. The court found that jury could infer specific intent from the use of deadly weapon on a part vital of Michelle’s body.
When reviewing a claim that the evidence was insuf
ficient,
we view
evidence in the light most favorable to the
Commonwealth as the verdict winner to determine if the
evidence and all reasonable inferences derived therefrom are
sufficient to establish all elements of the
beyond
offense
reasonable
Edwards,
doubt.
151,
Commonwealth v.
588 Pa.
1139,
(2006),
903
denied,
A.2d
1146
1344,
cert.
549 U.S.
127
(2007)
2030,
(citing
S.Ct.
denied,
859,
(2000),
1,
Pa.
A.2d
cert.
535
Bridges,
(2002)).
To
The trial evidence
established
it
sufficient to
amply
prove
killed Michelle
and was
lant
Cable
intent
to kill. Four
specific
separate
he acted
a
Mi-
appellant
to
murder testified that
shot
eyewitnesses
apprehension,
a handgun. Upon
in the head with
chelle
that he had killed
freely
police
himself
admitted to
manner of death
Wecht testified
Michelle’s
Michelle.
homicide,
her
gunshot
head.
by
caused
wound
fact that
supported by
very,
intent is also
Specific
a
handgun,
contempo-
to Michelle’s home with loaded
went
her,
told
kill
statement that he had
Michelle would
raneous
on this threat.
through
the fact that he
followed
promptly
from
could infer
intent
Finally,
jury properly
specific
handgun upon
use of
Michelle’s head.
a
appellant’s
voluntary
claims
intoxication
nevertheless
that his
intent.
a
negated
Whether
capacity
specific
diminished
and/or
has
that his “faculties and sensibilities
established
defendant
not
drugs so that he could
form the
so overwhelmed with
were
solely
within the
question
intent to kill is
of fact
specific
all,
free to
or none of
any,
who is
believe
jury,
province
v.
intoxication.” Commonwealth
regarding
denied,
(2004),
Fletcher,
403,
898,
A.2d
cert.
580 Pa.
861
908
(2006)
1041,
1617, 164
336
(citing
L.Ed.2d
547 U.S.
126 S.Ct.
714,
455,
A.2d
504 Pa.
475
720
Stoyko,
v.
Commonwealth
963,
361,
(1984),
denied,
83 L.Ed.2d
cert.
469 U.S.
105 S.Ct.
(1984)).
diminished capacity
the defense
is a
Similarly,
as it sees fit.
or disbelieve
to believe
jury
matter
for a
(1987),
398,
381,
521 A.2d
v.
513 Pa.
Terry,
Commonwealth
3198,
As to the of inconsistent and testimony presented the was Commonwealth alleges He physical the evidence. further contradicted speculative of such a and the Commonwealth’s evidence was could no reasonable inferences unreliable nature that there be arguments from the his intertwined drawn evidence. testimony sufficiency, appellant points and weight day he intoxicated on the of the defense witnesses that the negates murder and the use of intoxicants argues intent for a murder conviction. specific required first-degree Further, his dimin- he contends that the evidence established capacity through testimony ished the of Adam Sedlock. it the of the province counters that is Commonwealth weight the credibility to determine the and
jury
witnesses
the
is free
produced,
jury
to be accorded to the
evidence
all,
of the
part
to believe
of none
evidence. See Common-
(1979).
Tate,
180,
The trial court noted that the determination of whether weight verdict of the evidence lies within against mere in the discretion of the trial court and that a conflict a trial. The court outlined the testimony require does not new establishing appel- that several witnesses observed evidence lant Michelle the head and found that the convic- shooting . weight tion murder not of the first-degree against evidence. “only
A of the evidence against weight verdict is is so to the evidence as to jury’s contrary when the verdict Cousar, v. Commonwealth justice.” shock one’s sense (2007). 1025, 1036 noted, 204, trial a Pa. 928 A.2d As the court of the claim is addressed to the discretion of weight jury the trial It is the of the to assess the judge. province witnesses, a trial credibility judge grant will new trial of a conflict in the or because merely because reached a different conclusion on the same would have v. if he had been the trier of fact. facts, Edwards, at Blakeney, (citing 946 A.2d 652-53 903 A.2d Horowitz, 698, Armbruster Pa. 813 A.2d (2002)). This function on is to determine Court’s review whether, record, based the trial court upon review underlying abused its discretion rather than to consider the Id. question weight of the evidence.
Here,
this claim in
fully develop
has failed
He
to no
conflict-
governing
points
specific
terms of the
law.
testimony
any testimony
speculative
nor to
or
ing
was
Rather, he
forth the defense testimo-
merely
unreliable.
sets
ny
capacity.
of intoxication and diminished
Our review the
.
record
that the trial court did not abuse its discretion
reveals
testimony overwhelmingly
in
this claim. The
estab-
rejecting
leaving
committed the
it for the
killing,
lished
he
jury
disputed
pos-
to determine the
of whether
question
the requisite specific
sessed
intent for
murder.
first-degree
all,
As the
argues,
jury
Commonwealth
was free to believe
or none of the
part
testimony.
defense
Commonwealth v.
435,
403,
(2003),
denied,
Champney, 574 Pa.
832 A.2d
cert.
939,
(2004).
542 U.S.
III.
Testimony
Defense
to the
Cyril
of Dr.
Wecht
Appellant claims that the trial court erred in overrul
ing
objection
to the testimony of Dr.
on the grounds
Wecht
that the
had not
Commonwealth
laid a
foundation for
proper
its questions regarding the basis for Dr.
opinion
Wecht’s
homicide,
the manner of death was
and that the
hearsay.
Specifically,
argues
sentence that
single
Dr.
Wecht “testified to information received from some source in
the Fayette County Coroner’s Office.”
Brief
Appellant’s
19. Appellant contends that expert opinions
be
may
based
upon
reports
of others
if
only the
foundation
proper
is laid
regarding where and from whom the information is gathered
and that
this information is
customarily
upon
relied
practice
the expert’s profession, citing Commonwealth v.
Thomas,
(1971).
444 Pa.
attending coroner and that cases medically-related of usual framework the per is the attending the coroner from he received the information in the upon relies pathologist that a of information type on the opinion an rendering to aid profession of his practice of death. and manner cause that his Dr. testified noted that Wecht
The trial court Dr. he from information received upon based opinion he then County, of Fayette the Coroner Reilly, Phillip The court of the case. analysis into his overall incorporated an express is permitted an witness expert noted that based, in part, upon reports medical matters opinion reports such customarily upon relies expert the others where testified that the Dr. Wecht profession. of his practice the type is the Reilly Dr. this case supplied by information There- profession. in his upon relies regularly information concluded, the contested fore, trial court the admitted. properly rest admissibility regarding
Questions discretion, court will appellate and an judge’s the trial within for an abuse of discretion. only decision judge’s reverse 376, 147, Brown, 925 A.2d 154 592 Pa. v. (2007) Pa. 756 A.2d Spotz, (citing Commonwealth denied, (2000), 1139, 1151, 532 U.S. S.Ct. cert. (2001)). the testimo 1381, 149 have reviewed L.Ed.2d 307 We and, testimony, entirety upon based of Dr. its ny Wecht Dr. ruling. in the trial court’s abuse of discretion find no we 8, 2004, he himself morning July that on the testified Wecht of Dr. request at the on Michelle Cable performed autopsy her N.T., 2/8/07, He found that some of at 237. Reilly. organ post-mortem tissues had been removed organs and organs that none of the tissues or were donor but purposes that he found a He testified to his review. any consequence at the of Michelle’s head on the left side gunshot wound the left ear lobe. Id. slightly left ear and behind bottom of the sutured doctors at had been at 237-38. wound days for the patient she had been a two hospital where de- Id. at 238. Wecht gunshot wound. following wound, and examined he removed sutures scribed how and its findings regarding the wound his detailed explaining edges that the Id. at 238-40. He noted effect on her brain. *14 is from the which gun powder, blackened of the wound were range, the shot fired at close and an indication that was no that the muzzle was meaning gun’s no stippling, there was the head when shot than an inch or so from Michelle’s farther the is a Dr. testified that head fired. Id. at 240. Wecht was important the most the because the brain is part body vital show,” that the cause death because “it runs the and organ the due to cephalopathy in this instance “anoxic and was the skull and damage of the head gunshot wound with 241. brain.” Id. at death, Dr. Wecht testi-
Regarding the manner of Michelle’s
head,
there
fied that
he sees a near contact wound
when
homicide,
and suicide. Id. at
are three
accident
possibilities:
determine,
245. A
at such a wound cannot
pathologist looking
information,
possibilities
more
of the three
without
which
generally gleaned
occurred. This additional information is
used,
the
the
police investigation—whose gun
from
is there
reason to
gun
body,
any
found near the decedent’s
around,
fooling
the
the
or
cleaning
gun
believe
decedent was
If
of accident
making it an accident?
there are no indications
suicide,
or
then the
is that it is a homicide. Dr.
conclusion
instance,
that in this
he received information
Wecht testified
office,
from the
Police
from Dr.
Reilly’s
State
which
objected
defense counsel
that his
based
point
testimony was
the trial
Dr.
hearsay,
judge questioned
Wecht.
Reilly
asked Dr.
if he
from Dr.
report
court
Wecht
received
responded
or discussed the matter
him. Dr. Wecht
with
Reilly,
always
he discussed the case
Dr.
which is what is
with
done,
hospital
analogous
and that
discussion
hospital
dies in a
get
records he would
when someone
analysis
information that he utilizes in his
of a
provides
overall
objection
to the extent
judge
case. The trial
overruled
the information Dr.
relied
came from Dr.
upon
Wecht
informa-
objection
but stated he
sustain the
as to
Reilly
would
from
other
Dr.
then rendered
gleaned
any
tion
source.
Wecht
homicide.
Id. at
that the manner of death was
opinion
246-47.
Smith,
v.
480 Pa.
In Commonwealth
(1978),
a similar scenario.
presented
this
Court
There,
testified as to the cause and
expert pathologist
information
part upon
provided
manner of death based
him
coroner.4 The Smith Court allowed
deputy county
Thomas,
that,
testimony, noting
(1971),
the rule that a
adopted
Pa.
IV. Motion Limine Trooper Monkelis claims that the trial court erred in not granting his motion in limine exclude his statement to State Police Troopers that: “This is a death case and I don’t penalty want needle, life I Attorney] for life. Tell the will [District plead guilty to life. I if I myself would have killed knew Michelle Appellant argues was dead.” that this statement did confession, relevant, not constitute a and no was had probative He value. contends that the true intent of the statement to initiate plea negotiations. accurately responds has explain
failed to this statement why how was irrelevant or it is not a confession. The Commonwealth notes that appellant in a captured field after a manhunt. He had been hiding in the woods for a period emerged time and disheveled and carrying loaded handgun. Appellant had a violent past imprisoned had been during his adult life in both Pennsylvania According Commonwealth, Ohio. appellant’s state- ment at the State Police barracks spontaneous, voluntary relevant, and therefore admissible at trial.
The trial court found appellant’s statement to be an admis- sion that was properly admitted into trial. The court noted that tending guilt statements are their show very prejudicial, nature but are they extremely probative also *16 of and relevant to a participation defendant’s the crime Thus, charged. the court explana- found statement to be tory issues at trial and tending prove appellant’s guilt.
Again, admissibility
evidence is a matter
within the trial judge’s discretion and evidentiary decisions
Brown,
will not be
reversed absent
abuse of discretion.
636 exclusionary against constitutional
this instance are admissible Fisher, 505, 564 Pa. 769 v. Commonwealth challenges. rule (2001). Here, argue does appellant A.2d grounds. on constitutional inadmissible his statement was rele- Moreover, obviously the content of statement addition, the statement guilt. it was an admission vant: in effect in that probative substantial value had including had done he precisely that he knew what admitted awareness, in That of his conduct. consequences the potential voluntary trial claims of turn, relevant to rebut his capacity. and diminished intoxication that his statement was contends nevertheless and that plea negotiations, to initiate attempt made in an are not plea bargaining in furtherance of statements made that, footnote while court stated a The trial admissible.5 guilty an offer to plead in connection with statements made a defen- inadmissible, by unsolicited statements voluntary, are made in further- not considered to be to authorities are dant bargain, citing a striking plea ance (1983). 173, 459 A.2d Calloway, Pa.Super. provides Rules of Evidence Pennsylvania 410 of the Rule are not admis- during plea negotiations made that statements in the participating the defendant against sible Here, however, suggestion there is no plea negotiations. time made his at the ongoing were plea negotiations Rather, apprehended been had police. statement state- making challenged spontaneously time before short this, position takes an absolute to police. Appellant ment negotia- that the statement was resting upon suggestion participation very “negotiation” posits But the tion. word Here, no conduct. there was and not unilateral parties of two thus, not implicat- Rule 410 exclusion is negotiation, such ed. measure proffering some appellant’s
In the absence of
matter,
as a
we
implicated
practical
be
Rule
would
decision,
the Fifth
will,
this
look to
Circuit’s
purposes
component
not address this
The Commonwealth does
5.
argument.
*17
are under-
determining
plea negotiations
standard for
whether
Calloway:
in
Superior
approved
a
our
Court
way,
standard
however,
be
in such cases
Initially,
it must
determined
by
or statements made
an
or not the statement
whether
plea negotiations.
are in connection with
U.S.
accused
(5th Cir.1978)
Robertson,
a
provides
“... the accused exhibited actual whether the time of the negotiate plea to a expectation tive discussion, second, expectation whether accused’s objective circum- given totality reasonable 1366. stances.” Id. at subjec- in accused’s primary importance assessing
Of
an
a
expectation
negotiating
plea
tive
is whether
Com-
in
an interest
such dis-
participating
monwealth showed
cussions.
In line
this
unsolicited
reasoning, voluntary,
cannot be
by
statements uttered
accused
authorities
to be made in furtherance of
a
striking
plea bargain.
said
Calloway,
This standard is consonant with our above negotiation presupposes participation parties. two Here, by any there is no nor is there allegation appellant, that, suggesting appel- the record at the time of statement, just lant’s he had been for a apprehended when had by people, murder witnessed several any negotiating plea. Appellant’s interest state- conveyed voluntary, ment unsolicited confession to the State non- Police not a statement made in furtherance of troopers, Thus, the trial court did not abuse existing plea negotiations. denying appellant’s its discretion in motion limine. Limiting Testimony of Defense
V. Adam
Witness
Sedlock
next
that the trial court erred in
Appellant
argues
of his
Adam
limiting
testimony
psychological expert,
Sed
lock,
permitting
testify regarding appellant’s
Sedlock
skills.
claims that such
adaptive
of his
deliberate and
question
ability
plan,
relevant
adaptive
he neither
what
skills
premeditate, although
explains
ability
deliberate and
they impact
plan,
he lacks nor how
*18
that, responds
The
order
premeditate.
Commonwealth
show,
a defendant must
capacity,
through
establish diminished
that he suffers from a mental disorder
psychiatric testimony,
premedita
the
functions of deliberation and
affecting
cognitive
Commonwealth,
to the
that
According
tion.
to control his actions or that he
ability
defendant lacked
and thus inadmissible on the
ácted
is irrelevant
impulsively
Sasse,
kill, citing
of
intent to
Commonwealth v.
specific
issue
denied,
706,
A.2d
Relying (1982), the trial court in its recognized opinion A.2d 1344 that can capacity extremely diminished is an limited defense mental only by psychiatric testimony regarding be established affecting cognitive disorders functions of the brain neces- Weinstein, sary specific According to formulate intent. that does not intent and testimony go specific premeditation is irrelevant. Weinstein, on relevancy,
In and bedrock restrictions light no in the trial court’s At ruling. there abuse discretion conference, objected a sidebar to the behaviors, empha- of evidence regarding adaptive introduction to a determina- sizing that that sort evidence was irrelevant a mental disorder that inter- tion of whether had intent. In ability response, fered to form specific with are argue adaptive counsel did not behaviors appellant’s disorders, thought but offered that she merely mental rather stability. mental part appellant’s behaviors were pointedly responded relevancy trial court of Sedlock’s defense, capacity related to diminished
639 fully Sedlock had testified regard to the tests he performed and the results of those tests. The court stated that, although testimony about appellant’s adaptive capacity might become point relevant another in the trial—plainly alluding penalty phase—such testimony was not rele- proffered Thus, vant for the in the point guilt phase.
court sustained the objection Commonwealth’s to the testimo- ny. 437, Commonwealth v. Legg, 430, 551 Pa. 711 A.2d
(1998), this parameters Court outlined the of a diminished capacity defense: however,
Diminished capacity, is an extremely limited de fense. [, Travaglia 108, [Commonwealth v.] Pa. (1995), denied,
A.2d 352
cert.
516 U.S.
116 S.Ct.
(1996)
133 L.Ed.2d
Psychiatric
].
testimony that ad
dresses “mental disorders affecting the cognitive functions
*19
deliberation
premeditation]
[of
and
necessary to formulate a
specific intent” is admissible.
[Commonwealth
Zettle
v.]
16,
moyer,
937,
(1982),
500 Pa.
denied,
A.2d
943
[454
cert.
970,
461
(1983)].
U.S.
103 S.Ct.
In addition to the fact that Sedlock a psychiatrist, Sedlock’s opinion that petitioner was unable to control his actions and tended to act impulsively was precisely the type evidence this inadmissible, Court held to be in a similar situation, in Legg. light of Legg, the trial court plainly did not abuse its discretion in sustaining the Commonwealth’s objection to this testimony.
VI. Trial Appellant Court’s Determination that Mentally
is not Retarded *20 established, of testified on behalf psychiatrist appellant, who evaluation, MRI, EEG, a that psychiatric based on an retarded, to mildly mentally had dementia due appellant was disease, head suffered from cerebrovas- trauma/cardiovascular a had had point cular disease and some stroke. appellant’s that also Appellant states Sedlock interviewed sister, Patton, and administered the Vineland Mildred if appellant’s adaptive Scales to determine Adaptive Behavior if skills were limited and the onset his mental retardation appel- that testified eighteen. Sedlock prior age occurred 65, indicating test was score on the Vineland composite lant’s of mental range the mild functioning within that he was interview, concluded Sedlock upon Based his retardation. man- and he cannot skills are deficient social appellant’s that interper- concerns or his his health money, either his own age the Wide also administered relationships. Sedlock sonal Test, sight appellant’s that which revealed Range Achievement level, grade skills are at the second and mathematics reading that testified Sedlock grade he at a first level. spells origins that have their problems control impulse had appellant appel- organic changes limitations cognitive his and/or antisocial appellant with diagnosed lant’s frontal lobe. He also that the onset opined further disorder. Sedlock personality age prior occurred mental retardation appellant’s supposed he showing records based his school eighteen, upon sister, classes, testimony appellant’s education special change not over IQ that does and Dr. Bernstein’s evidence, claims that all of this upon lifetime. Based he is by preponderance he established evidence therefore, have and, the trial court should mentally retarded the death proceeding from barred Commonwealth in this case. penalty four counters that the trial court held
The Commonwealth functioning mental hearings on the issue of days Sedlock, Bernstein, and the Commonwealth’s at which According to Wright, Dr. Bruce testified. psychiatric expert, Commonwealth, expert agreed all of the witnesses prior age no testing performed there was Further, that there is the Commonwealth contends eighteen. any significant adaptive limitation objective no retardation. The Commonwealth caused mental behavior incarcerated, main- the fact points appellant, when (commercial as a licensed CDL employment tained full-time license) driver, any problems truck and that social driver’s or his personality can be attributed to anti-social may have notes that while abuse.6 polysubstance test is a difficult test 6. The Commonwealth asserts that the CDL license correctly, consisting questions, of which must be answered of 70 80% *21 records indicate that he appellant’s special school classes, education a school official testified that there were might spe- reasons a student receive non-intelligence-related education, and disciplinary problems, appel- cial such as days grade year. lant absent 92 of his tenth school Further, sister testified that she herself was appellant’s .in special problems, education classes due to behavioral mental retardation. Dr. Wright further notes that testified appellant dependent upon government was never aid,
any companies or financial for several disability worked route, he regular trucking performed yard and maintained a homes, had no problems work and snow removal around his Dr. hygiene minimally cooperative polite. with and was but Wright appellant logical goal found to be and oriented with no Dr. used. Dr. problem understanding any Wright words mini Wright mental examination that revealed performed cognitive has mild to moderate can appellant impairment, threes, write, backwards, spell read and subtract serial figure change point out values for touchdowns with point. and without the extra Commonwealth, Dr.
According Wright diagnosed dementia, possible history polysubstance behavior, abuse, head trauma and hypertension, antisocial disorder. He found that has bor- cerebrovascular cognitive impairment, derline alone does not constitute which retardation, may variety mental but be the result of a factors, school routine. including poor compliance with addition, to Dr. according Wright, appellant possesses several risk can contribute to or cause cognitive impair- factors which ment, such as hypertension, hypercholesterolemia, cerebrovas- strokes, cular like substance abuse and trauma. insults head maintained that means of Wright only establishing onset of mental function impaired prior age eighteen witness, according Pennsylvania Department Transportation Beatty. Appellant passed Ronald took and the test after eighteen Pennsylvania
he drove an wheeler on a route between Jersey. New and that a of mental through testing, diagnosis retardation deceitfulness, cannot in light be made risk *22 objective testing eighteen. factors and the lack of prior age court, The trial the competing testimony, which heard agreed appellant with the Commonwealth that to estab- failed alleged lish the his retardation the age onset of mental before of eighteen.7 Specifically, the court found that the best evi- IQ dence testing would be conducted before appellant was eighteen, appellant any but failed to offer evidence of such evidence, noted, testing. Alternative trial court the could proving include school records or other records psychological that appellant’s alleged mental retardation manifested itself that, before age eighteen. court noted appellant while in in tenth school special grade, education classes his identify retarded, records did not him mentally as nor was any there indication that he in placed special education classes due to mental retardation. The court to the pointed that, testimony of a school official to the effect time school, appellant inwas there was no formalized procedure classes, placement in education special well as appellant’s sister’s that she admission was placed special education classes problems, because of behavioral retarda- mental tion. The concluded appellant court been may have placed reasons, education for a special classes number of including attendance or poor problems, behavior and that there special was no that he education classes because of or diagnosis recognition of his mental retardation. addition, In the court noted appellant’s poor may grades reflect poor attendance than any impair- rather mental ments. reasons, For all of these court held that appellant had failed to that his prove prior mental retardation originated to age eighteen. incorporated May Support
7. The trial Opinion court into its Jury of 2007, Opinion January Verdict and Sentence its and Order dated analyzed testimony presented in which court the four- a1 day hearing petition penalty bar the death mentally concluded had failed to establish that he was prior age eighteen. retarded of Miller, upon implement this called Court was standard, part the inaction on the of the General given Atkins Atkins, and held that a defendant Assembly in wake resort to either through establish mental retardation may Psy- or the American Mental standard AAMR’s Retardation in the Diagnostic set forth chiatric Association standard (4th 1992) (“DSM- ed. Manual Mental Disorders Statistical noted, IV”).8 definitions, share as the Miller Court The two significant intellectual concepts: functioning; limited three Miller, limitations; A.2d at age onset. adaptive Here, to establish that he attempt elected 630. concepts three shared mentally by demonstrating retarded is at IQ He evidence that his presented definitions. the two (two forth in Mental Retardation or the standard set below deviations, the mean of 100 with points, or below standard that he points), of three to five standard error measurement *23 he in that claims to be limitations significant adaptive had aspects his finances and other personal of incapable managing in life, itself and that his mental retardation manifested his childhood, special that his in education arguing placement his of his that he incapable and the sister classes suf- established that he personal certain academic and tasks childhood. from mental disabilities since his fered finding no error in the trial court’s that We see to establish that the onset sufficient evidence present failed prior eigh- retardation to age mental occurred alleged his IQ noted there no tests properly The court were teen. records produced; childhood and school appellant’s from placed special do in education classes not establish that was Indeed, the dem- as a result of mental retardation. evidence placement that such a could result from behavioral onstrated 8. Retardation mental retardation as The AAMR’s Mental defines significant "disability limitations both in intellectual characterized expressed conceptual, functioning adaptive behavior as Miller, social, practical adaptive 888 at 629-30 skills.” A.2d 1). "signifi- (quoting Mental at The DSM-IV definition is Retardation (an subaverage IQ cantly functioning approximately 70 intellectual below) age years or or before and concurrent deficits onset functioning.” (quoting at adaptive at 630 DSM-IV impairments Id. 37). trial mental retardation. The rather than from problems from excessive absences recognized court also his poor been the cause of very school could well have Thus, failed to estab- appellant simply performance. academic mental retardation occurred alleged lish that the onset of his And, noted, appel- trial court age eighteen. as the prior requires element necessary lant’s failure to establish this ineligibility of his claim of death due to rejection penalty mental retardation. Baer Concurring Dissenting Opinion,
In a
Mr. Justice
that this
affirmance of the trial court’s determi-
opines
Court’s
necessary require-
to establish the
nation
failed
is a
prior
age eighteen
ment of onset of mental retardation
sup-
of Atkins and Miller because
perversion
“draconian”
we
for defen-
have erected an insurmountable barrier
posedly
objective
not fortunate
to attend a school where
enough
dants
not altered
IQ testing
performed.9 Respectfully,
we have
standard,
found that there
governing
merely
but
have
error in the trial
legal
particular
no
court’s
assessment
Atkins,
In
presented
to it under that standard here.
the United
left to the states the
Supreme
States
Court
devel-
to enforce the constitutional
opment
appropriate ways
prohibition against
mentally
persons.
the execution of
retarded
Atkins,
doing,
High
U.S. at
S.Ct. 2242.
so
Court set forth the AAMR’s definition of mental retardation
as the
Psychiatric
well
American
Association’s definition set
forth
and noted that both
the onset of
require
DSM-IV
functional limitations
Id.
309 n.
prior
age eighteen.
*24
Concurring
Dissenting Opinion
9. The
and
attributes the absence of
objective
alleged
appellant’s
more
measures of
mental retardation to
unavailability
testing
appellant’s
Concurring
at
school. See
and
653-54,
Dissenting
(declaring
318, 122 opportunity took the 2242 This Court S.Ct. if a capital to determine criteria appropriate to establish Atkins, Consistently with mentally retarded. defendant is therein, one of included as referenced we and the definitions age eighteen. before three factors onset focuses, perhaps Dissenting Opinion Concurring The sole basis alleged as the IQ testing on the lack of sharply, too failed to appellant that the trial court’s determination trial court did not eighteen. prior age establish onset objective IQ testing occur- hold, suggest, that and we do mental retarda- prove is age eighteen required before ring Concurring here. The factors involved tion. Other were the trial court’s more exten- marginalizes Dissenting Opinion that school findings appellant’s included factfinding, sive which mental- notations that he was considered records contained no classes, education retarded; special his placement ly, mental retar- objective of childhood proof he offered as which factors such as dation, been related to other could have' attendance; that the poor issues or his school behavioral factors had could objective medical risk number of (a impairment point mental relevant contribute to his current as proof were offered impairments current because short, the trial court’s decision lifelong impairment). predicated upon perverting was not we affirm objective IQ only requiring into one standard Atkins/Miller evidence, lack childhood, all of the or but rather on testing thereof, prior from mental retardation suffered the trial court was well aware eighteen. Finally, age requirement impor- of onset why age of the reasons for mental retardation: part tant test of onset” element is “age for the purposes One of the forms of brain retardation from those distinguish mental impair- in life as mental occur later such damage may trauma, or other dementia injury ment caused head similar conditions. is of later life injury occurring
The issue of brain case. The Defendant’s concern the instant principle [sic] Bernstein, suffered that Defendant has testified expert, *25 from several head traumas acknowledged this affects the Defendant’s reasoning and deliberation. He also diagnosed Defendant mild with dementia and vascular disease of the brain. Mr. Sedlock testified that the Defen- dant has suffered brain as a injury result head trauma. The Commonwealth’s Dr. expert, Wright[,] also made note injuries Defendant’s various head occurring after the of 18 age diagnosed possible Defendant with demen- tia, disease, cerebral vascular and alcohol and substance abuse. to Dr. According Wright all these conditions led to a decline in cognitive capacity of the Defendant.
A second rationale for the “age requirement onset” to ensure that defendants feign cannot mental retardation after being charged a capital crime. Here the issue of malingering is also of concern. Wright Dr. testified that he was concerned about the Defendant’s deceitfulness since he Further, lied several times to him. Wright testified the Defendant was uncooperative gave a poor effort on tests administered. 1/24/07, (citations
Trial Ct. Op., 12-14 and footnotes omit- ted).
The record fully conclusions, supports trial court’s careful, were reached after a thorough hearing. trial court’s considered analysis presented by appel- lant and the Commonwealth is evident in the court’s detailed opinion denying appellant’s petition to bar the death penalty. We find no error in the trial analysis court’s or conclusions on this issue.
VII. Trial Testimony Court’s Refusal to Allow Expert Mental Retardation
Appellant next argues that the trial court erred in refusing appoint expert mental retardation who could have testified at the Atkins hearing. Such an expert, appel lant alleges, could have spoken issues raised Com monwealth, such that appellant as had a commercial driver’s license and lived independently. According appellant, purpose of such an expert would have been to the line “draw may is not be able to do what who retarded person
between mentally is mildly to a who retarded.” compared person *26 that, without the Brief at 39. maintains Appellant’s court had no for testimony expert, of such an trial basis adaptive whether abilities were consis- evaluating mildly mentally persons. those of retarded tent with response The that the argues Commonwealth an refusing appoint expert did not err to such because court testimony been cumulative of the would have According by Bernstein. to provided Sedlock Commonwealth, testified concern appellant’s experts both behaviors or lack thereof detail. As ing appellant’s adaptive 671, 586 Pa. 896 Serge, this stated in Commonwealth v. Court denied, 920, 275, (2006), 549 127 S.Ct. 166 A.2d 1170 cert. U.S. (2006): 211 L.Ed.2d expert decision is within the appoint to witness the trial court not be disturbed
sound discretion of
and will
ex
a clear abuse of
discretion. United States
except for
(E.D.Pa.1970),
v.
316
411
Pennsylvania,
F.Supp.
rel Dessus
(3rd
denied,
Cir.1971),
452
cert.
409
affirmed,
F.2d 557
U.S.
(1972);
853,
184,
L.Ed.2d 96
v.
93 S.Ct.
34
Commonwealth
(1984).
Gelormo,
219,
327
Id. at 1184-85. Our review record as to their length and Dr. Bernstein testified Sedlock in adaptive limitations skills. opinions regarding appellant’s Thus, any additional correctly argues, as the Commonwealth appellant’s adaptive skills expert testimony regarding would Further, it is apparent been cumulative. merely have court’s to by was not the trial refusal prejudiced controlling requested expert finding because appoint onset of failed to establish the trial court by unrelated is age eighteen, retardation mental trial court Accordingly, the his adult behaviors. adaptive to an additional refusing appoint did not abuse its discretion testimony. provide cumulative expert Penalty Imposition of the Death
VIII.
a Retarded Person
constitute cruel and
that it
Finally, appellant argues
would
subject
penalty
him to the death
punishment
unusual
testing
no
from
school
present
IQ
because he can
simply
limitations,
contends that his
wheth-
years. Appellant
present
render him
age eighteen,
should
they began prior
er or not
essence,
penalty.
argument,
for the death
His
ineligible
extent
mentally
deficient to
same
that murderer who is
retarded
mentally
a murderer
has been found to be
who
*27
from
The
exempt
capital punishment.
should be similarly
claim,
no national
rejected
finding
trial court
this
that there is
should be enti-
mentally
consensus that
deficient individuals
mentally
the
as those found to be
exemption
tled to
same
addition,
the Atkins
retarded.
In
the court noted that
Court
claim to be mentally
made it clear that not all defendants who
range mentally
retarded fall
retarded offenders
within
a
against capital
about whom there exists
national consensus
Atkins,
Initially, appellant we note Pennsylva it is a of the United “whether violation States on an impose penalty nia Constitutions to death individual degree person is deficient to the same as a who mentally who Brief been labeled retarded.” mentally Appellant’s has added). (emphasis only authority upon appellant claim, however, Supreme is the U.S. forwarding relies this Indeed, only reference appellant’s decision Atkins. Court’s in his statement of the Pennsylvania Constitution is Therefore, appellant is to the extent issue. this issue waived Pennsylvania to raise it under the Constitution. purports Eighth raises this issue under the appellant To the extent Amendment, inclined, not be in the absence of we would direction, beyond to extend Atkins its
legislative express a national rule all of the imposed upon command. Atkins States, the death removing authority impose penalty however, Notably, class of defendants. upon capital narrow did not establish a national standard for High Court (and retardation, recognizing implicitly approving) mental thus flexibility a certain amount of under the Atkins rule. This fact, believe, against judicial a unilateral weighs heavily we where, scenarios, extending action Atkins to other particularly here, offers no of a national consensus evidence mentally the execution of those are defi- prohibiting who mentally cient but do not meet the definition of retarded. who instance, exists, as it applying presently this law testimony, including trial court heard four extensive days experts lay from defense and several witnesses two on behalf. At the conclusion of that appellant’s who testified the trial court exam- lengthy hearing, carefully thoroughly ined and concluded that analyzed presented did not meet his burden of that he is proving such that bars mentally imposition retarded Atkins currently death As there is no penalty. prohibition impos- ing penalty mentally the death on a defendant who is deficient retarded, claim mentally but not this must fail. Statutory
IX. Review claims, all of conclude that Having reviewed we relief this must affirm Accordingly, warranted. Court determine that it the sentence death unless we *28 any or other factor. product passion, prejudice, arbitrary 9711(h)(3)(i). § 42 After careful of the trial Pa.C.S. review record, conclude that the sentence of not a we death was factor, any arbitrary or other product passion, prejudice, Further, but based admitted at trial. upon 9711(c)(l)(iv), 42 complies § this sentence Pa.C.S. jury mandates a sentence of death finds one or more when cir- aggravating outweigh any mitigating circumstances that 9711(h)(3)(ii), § to 42 Lastly, pursuant cumstances. Pa.C.S. support aggra- we find that evidence was sufficient to vating jury circumstances found a sentence of imposing death. affirm the
Accordingly, we verdicts and the sentence of death.10
Justice SAYLOR and EAKIN and Justice TODD and join the opinion. GREENSPAN
Justice BAER a concurring files dissenting opinion joins. which Justice McCAFFERY BAER, concurring
Justice
and dissenting.
I join the Majority’s resolution of Appellant’s guilt phase
dissent, however,
claims.
I
rejection
from the Majority’s
Appellant’s penalty phase argument
that he
ineligible
penalty
death
because he is mentally retarded.
In Atkins
304,
v. Virginia,
2242,
U.S.
S.Ct.
(3)
functioning impacting
the limited intellectual
that
eighteenth
to his
prior
functioning
apparent
adaptive
case, the
Miller,
In this capital
Prior from pursuing preclude to seeking petition he had substantial intellectual alleging that penalty, the death daily adaptive impacted impairment that such impairment; prior existence disability and that this functioning; detail, during describes Majority As the eighteen. age premis- these attempted prove four-day hearing, Appellant test, aby Miller es, directly three-prong from the derived ele- regard to the first of the evidence. preponderance administered an ment, Adam Sedlock psychologist defense Appellant that scored and determined test intelligence 61-71, indicating Appellant (IQ) of intelligence quotient of mental retardation. With range the mild functioning within element, produced evidence Appellant to the second regard Finally, regarding skills are deficient. adaptive that his Miller, age eighteen, that onset was before element of third special that he education offered evidence grade. school in the tenth out of dropped classes until Jr., Bernstein, Frederick Further, Dr. Lawson expert defense IQ testified that does neuropsychiatrist, forensic a clinical and testimo- Based on Bernstein’s a lifetime. change over records, score, school Appellant’s present IQ ny, Appellant’s sister, expert defense Sedlock Appellant’s and interviews with retardation mental Appellant’s the onset of concluded prior age eighteen. occurred Commonwealth, addressing rather than In response, case, testing on the lack of focused Appellant’s substance noted birthday, eighteenth prior Appellant’s performed proposition placed self-evident children can be education classes for other than mental special many reasons *30 retardation. Dr. Bruce Wright buttressed Common- argument by testifying wealth’s that the of only means defini- tively of establishing impairment functioning prior mental to age eighteen objective is through testing Appellant as 12/8/2006, a child was never N.T. provided.1 274. hearing,
After the the trial court analyzed the third element of assertions, Miller. Accepting Commonwealth’s the trial court found that Appellant IQ testing because failed to offer prior age eighteen, conducted to the trial court believed onset, the best age evidence of he did not meet his Further, burden. the trial court noted that Appellant failed to produce school or psychological records men- proving that his tal retardation age eighteen. manifested itself before Accord- ingly, rejected Court Appellant’s premised claim on the alone, third element of Miller and declined to determine Appellant whether had established the first elements of two Miller. This Majority Court’s the trial accepts court’s ratio- nale and determination.
Respectfully, I dissent. I believe that the Majority, through its court, affirmance of the trial imposes an impossible stan- dard on certain defendants for there is objective whom no evidence originating prior age eighteen. Where, here, as IQ there was no testing conducted before age eighteen and no school records identifying Appellant retarded, as mentally due to the lack of a program structured designed identify those retardation,2 students with mental the Majority’s requirement acknowledge I1. argued that the Commonwealth also that in accord criteria, Appellant Miller's first two did not have limited intellectu- However, functioning maladaptive al or behavior. the trial court’s Majority Opinion decision and this solely Court’s Appel- both turn alleged prove lant’s prong objective failure to testing third Miller diagnosis prior age eighteen. and Peters, Ann supervisor special education for the Frazier School 2. District, Appellant's reviewed school files and testified that at the time school, Appellant attended the there was no formalized evaluation procedure placing special for students education classes. Placement informal, in such classes was and was not based on routine standard- 56-57, testing. ized N.T. Nov. 2006 at 61-62. objective age eighteen precludes before originating their burden meeting from ever
defendants such retardation, lead to the may well mental showing of At- mentally retarded defendants violation execution of Miller, fortunate to attend a kins they enough if were not IQ maladaptive behavior. school that tested and/or nor Miller IQ objective or Atkins requires testing Neither eighteenth before one’s impairment evidence of behavioral require To tests from birthday age onset. such prove redefines the third criteria Appellant’s substantively childhood objec- of Miller to mandate of childhood tests for production execution, functioning, or to face adaptive intelligence tive say troubling To this is of current realities. regardless defendants, were Many Appellant, such as understatement. tests, attention, IQ or specialized expert afforded *31 records, required memorialized school adaptive assessments claim to their of mental retarda- by Majority the corroborate (cid:127) tion.3 possible age a to show Majority that it is for defendant
3. observes objective testing eighteen in of from that of onset the absence before records, records, psychological by offering or time school social service age eigh- before prove records that mental retardation manifested to however, Here, according Majority, trial the teen. court and proof nobody Appellant meet his of labeled failed to burden because records, placed might have been mentally him retarded in his school absences, and special classes of excessive his education because something impairments may result of other than current mental be the mental retardation. by prove age preponderance of Appellant’s to of onset is the burden evidence, is, greater by weight Common- "that evidence.” Here, (2007). Appel- Rainey, 593 Pa. 928 A.2d wealth objective attempted lant to meet his burden and overcome the lack testing mental retardation in his school or the characterization of by opinions, eighteenth birthday offering expert records his before family adaptive well as members about his limitations the that, experts considering opined his school rec- while school. His IQ IQ-related scores, contemporary deficiencies were ords his and family age eighteen. corroborated present Appellant's members before conclusion, testifying adaptive present limitations were this that his evidence, rejecting eighteenth birthday. Appellant's the before his IQ introduce an test administered trial court focused on failure to school, service, illuminating age eighteen any to social before or offer records, which, Appellant's again, prior psychological or were extant eighteenth birthday, Majority the affirms Notwith- and this decision. The third of Miller component was intended differentiate mental retardation and between intellectual deficits devel- op age eighteen, typically injuries after due to brain or brain It diseases such as dementia.4 intended to be the never draconian standard established by Majority to eliminate for legitimately mentally benefit Atkins retarded indi- Contrary to the trial court or the I Majority, viduals. believe put that whatever evidence is should by Appellant forward Here, be considered the barrier of a without talismanic test. Appellant’s expert Sedlock interviewed Appellant, Appellant’s records, and family, Appellant’s reviewed school and conclud- ed, evidence, based on this that the of onset of mental age court, eighteen. retardation was before The trial and Majority, accepted has position Commonwealth’s objective of its that absent expert origination evidence of of mental symptoms retardation prior age eighteen, meet Appellant Conversely, could not his burden. I believe this case should be remanded to the trial court to assess criteria, in the absence of preclusive, objective whether weighing all of the evidence put foiward and the Commonwealth, Appellant mental I established retardation. further believe that the trial court analyze should two remaining elements Miller so that the next upon appeal, this Court is in a position determine whether credible record evidence establishes mental retardation. joins
Justice McCAFFERY this concurring dissenting opinion.
standing Majority’s protests contrary, I believe that the trial Majority court and have erected an insurmountable wall for defendants structured, through such as who were not tested or labeled procedure. formal school Majority, 4. As noted unlike the circumstance of mental retarda- tion, a regarding propriety national consensus has not been found imposition penalty against of the death individuals whose intel- develop age eighteen. lectual deficits after Appellant notes that the United States Supreme in Court Atkins v. Virginia, supra, overturned prior law and held that the execution of mentally persons retarded now violates the Eighth Amendment’s prohibition against cruel 640 sets forth this punishment. Appellant accurately unusual Miller, 585 Pa. holding Court’s (2005), definition of establishing A.2d as current that, He notes mental retardation for Atkins. purposes Miller, that determined mental retardation is es- this Court (1) he that: pos- tablished a defendant demonstrates where that functioning, meaning IQ intellectual his sesses limited (or points) deviations score is two standard approximately (100) a standard error of measurement of below mean set in the Association of three to forth American points five (“AAMR”) Mental Mental Retardation’s Retardation: Defini- (10th 2002) tion, Classification, Systems of ed. Supports (“Mental (2) Retardation”); adaptive behavior (conceptual, skills) (3) social, limited; and significantly is practical Id. age before at 631. age eighteen. of onset was three met all elements of Miller. Appellant claims he Adam psychologist defense administered Specifically, Sedlock Edition to Intelligence appel- the Wechsler Adult Scale—3rd lant, intelligence quotient (“IQ”) who scored verbal scale 66-76, a of 60-70 and a full scale performance IQ IQ scale 61-71, functioning he claims indicates within mild mental adds that he range retardation. until he out of school special dropped education classes grade. school when tenth during year 1964-65 performed a According appellant, psychological Sedlock organic had an brain evaluation and determined trauma, neither al- although and closed head had syndrome of Dr. tered his also claims IQ. Appellant Bernstein, Jr., a clinical and forensic neuro- Lawson Frederick