*1 482 (2014) J., 267, (Sаylor, concurring and 104 A.3d practice “such is the concern that
dissenting) (expressing plain govern- terms with fundamentally inconsistent scheme, designed permit punish- ing statutory moral rendering reasoned only upon of death ment same lawless terms made judgments, decisions committed”). are which murders
130A.3d Pennsylvania, Appellee COMMONWEALTH v. VANDIVNER, Appellant.
James Pennsylvania. Supreme Court Feb. Submitted Dec. Decided *3 Brent Eric Peck, Uniontown, Esq., Peck Law Offices L.L.C., for James W. Vandivner.
Katharine R. Boyce, Esq., for Organization National on Fetal Syndrome, Alcohol Amicus Curiae. Heneks,
Jack Rayden Esq., Fayette County District Attor- ney’s Office, Amy Zapp, Esq., PA of Attorney General, Office Anthony Iannamorelli, Jr., S. Esq., Commonwealth Pennsylvania.
SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.
OPINION TODD. Justice case, appeals the Appellant
In this James VanDivner capital denying County Court of Common Pleas Fayette order Act the Post Conviction Relief for relief under petition (“PCRA”), §§ 9541-9546. For reasons Pa.C.S. of the PCRA court and remand follow,we vacate the order opinion opinion. consistent with this supplemental a Background
I. fiancée, fatally shot his Michelle July Appellant surrounding the murder We summarized facts Cable. appeal: on direct opinion Appellant’s our her mother Michelle Cable lived at Jessica Cable and Street, Grindstone, July On Fayette County. East Second neighbor’s at a home. babysitting Jessica was p.m., [Ajppellant driving 9:00 Jessica saw Betwеen 8:30 and ran home. immediately in the direction of her home and arrived, get out of his vehicle [Ajppellant she she saw When of her home. As Jessica porch to the and walk back the home followed, through entered back [Ajppellant and, home, walking through the encountered door while Newman, friend, living Appellant in the room. family Larry was, Larry pointed where Michelle to the Larry asked opened front door. then the door and walked porch. onto the sun outside, to the sun from the steps leading porch
On the son, As Billy and her [Ajppellant met Michelle Cable. “Dude, him, porch, Billy onto the told [Ajppellant walked (“N.T.”), Testimony off Notes of get my property.” Michelle, at pointed gun then attempt an wrestle point, Billy pounced [Ajppellant managed keep gun from his gun hand. relative, pointed Larry Larry’s it at Newman’s head. Newman, gun [Ajppellant, Kenneth then rushed and the gun, quickly still had the Appellant, fired. who walked kill going grabbed her he was her. He Michelle and told head, and, hair, in the as she fell to the her shot her
487 stated, ground, “There, bitch, I I you was to going said kill you.” Appellant smiled away. and walked A motorist who was passing by saw [A]ppellant grab Michelle by the and shoot hair her in the head.
Meanwhile, after unsuccessfully attempting to take gun from [Ajppellant, had Billy gone inside-the to home look for a weapon protect his family. When he was unable to weapon, find a he left the home. As he off stepped the back porch, Billy [A]ppellant saw walking toward him with the gun in Appellant his hand. pointed gun who Billy, away. turned run shot Billy the neck and then left the scene. subsequently Police apprehended [A]p pellant in a field and recovered a Jennings handgun. J22 As [A]ppellant being taken into an interview room at Pennsylvania barracks, State Police out to he blurted Trooper Monkelis, James “This ais death penalty case and needle, I don’t want the life a life. Tell the IDA will guilty to life. I plead would have killed if I myself knew N.T., 2/8/07, Michelle was dead.” VanDivner, Commonwealth v. 617, 1170, 599 Pa. 962 A.2d (2009). 1173-74 trial,
Prior a motion preclude filed from Commonwealth seeking penalty, contending death intellectually is significant disabled1 and has limita- skills, and, thus, tions in adaptive imposition that of the death penalty would constitute cruel and unusual punishment under Virginia, Atkins v. 304, 2242, 536 U.S. 122 153 S.Ct. L.Ed.2d (2002) (holding 335 the Eighth Amendment to the United prohibits States Constitution imposition penalty the death criminals”). upon “mentally retarded The trial court conduct- a four-day hearing, ed it after which determined Appel- Previously, commonly the term "mental retardation" was utilized professional community addressing challenges. and courts in Atkins — However, Florida, U.S. -, 1986, 1990, in Hall v. 134 S.Ct. 188 (2014), high recognized L.Ed.2d preferred 1007 Court term disability.” Accordingly, opinion, "intellectual in this we will use the from, alia, disability,” term quoting "intellectual we unless are inter 75, testimony. Bracey, cases notes of See Commonwealth v. 632 Pa. (2015). 117 A.3d 271 1n. mani- that his intellectual disabilities failed to establish
lant required by as v. Commonwealth fested (2005) Miller, (explaining Pa. 888 A.2d *6 of three disability requires proof of intellectual determination functioning, significant adaptive limited elements: 18). limitations, onset Given this determina- and of tion, to make a whether the court determination declined set forth in Miller established. the first two elements were of for Appellant first-degree convicted murder the jury The Michelle; homi- criminal to commit criminal attempt of death of Billy; aggravated the respect and assault cide with of penalty hearing, At the conclusion the Larry Newman.2 (1) in circumstances: the jury aggravating the found two offenses, of created a Appellant knowingly commission the of to the person death another addition grave risk (2) victim;3 significant history felony a of Appellant and had of The involving jury the use threat violence.4 convictions char- mitigating Appellant’s found one circumstance related (the circumstances of his offense “catchall” acter and the out- aggravating concluded the circumstances mitigator),5 but circumstance, and weighed mitigating recоmmended 12, 2007, of the trial court February sentence death. On conviction, on the formally a death sentence murder imposed of 20 to 40 years imprisonment consecutive terms years imprisonment and 10 to 20 attempted homicide aggravated assault. on judgment Court affirmed sentence
This VanDivner, 23, supra. 2009. v. January Commonwealth sufficiency rejected Appellant’s challenges to the doing, so we evidence, several of the trial court’s eviden weight Appel and the trial court’s determination that tiary rulings, 20, 2010, intellectually July Appel On lant disabled. was represented appeal by trial Ritz direct Susan 2. penalty phase Harper, Esquire. Appellant represented was also Zerega, Esquire. Dianne of his trial 9711(d)(7). 42 Pa.C.S.§ 3. 9711(d)(9). §
4. 42 Pa.C.S. 9711(e)(8). 42 Pa.C.S.§ lant pro filed a se PCRA petition. Following appointment counsel, petitions amended were filed on May 17, 2012, October wherein raised numerous issues to, alia, relating weight evidence, inter prosecu conduct, tor’s the trial court’s evidentiary rulings, the trial jury instructions, court’s alleged ineffectiveness, counsel’s capacity. Following mental four days hearings,6 the PCRA court denied on January 17, relief This appeal followed. Analysis
II. In reviewing relief, denial we examine whether the PCRA court’s determination is “supported by the of legal record and free error.” Rainey, Commonwealth v. (2007). 593 Pa. 928 A.2d To qualify for relief PCRA, under the petitioner establish, must by a preponder evidence, ance that his conviction or sentence resulted *7 one or of from more the enumerated errors 42 Pa.C.S. 9543(a)(2); § his claims have previously litigated been waived; or and that the to litigate failure the to or issue during trial or on direct could not appeal have been the result rational, of any strategic, tactical by decision counsel. (a)(4). 9543(a)(3), § An issue is if previously litigated “the highest appellate petitioner] [the court could have had as a of right review matter has ruled on of the merits the 9544(a)(2). § issue.” Id.
In to order obtain on relief under PCRA a the based of counsel, claim a petitioner ineffectiveness must satisfy performance prejudice the test set forth Strick 668, Washington, 2052, land 466 U.S. 104 v. 80 L.Ed.2d S.Ct. (1984). 674 we have Pennsylvania, applied the Strickland (1) by to requiring petitioner test establish the under that: (2) merit; lying claim arguable has no reasonable existed basis act; (3) action or to petitioner counsel’s failure the prejudice error, suffered as a prejudice result counsel’s with 2012; 24, 16, 2012; Hearings were on October conducted November 30, 2013; 28, January February 2013. The Honorable Gerald R. presided Solomon proceedings. over trial and his PCRA 490 probability is a there reasonable
measured whеther Com have been different. would proceeding result (2001). 208, Pierce, 186, 213 Pa. 786 A.2d v. 567 monwealth assistance, to have rendered effective presumed Counsel any element of the required fails under and, if a claim may the claim on that basis. test, court dismiss Strickland (2010). Ali, 282, Pa. 10 291 v. 608 A.3d Commonwealth that trial counsel was ineffective on a prevail To claim witness, that: petitioner prove must to failing present (2) existed; of or (1) counsel was either aware the witness existence; (3) aware witness’s have been should on willing cooperate and able behalf witness was (4) defendant; necessary proposed Tharp, Commonwealth v. petitioner. prejudice avoid (2014). 673, 101 Pa. A.3d pertaining pre- raises claims In this appeal, However, we be- trial, proceedings. guilt, penalty-phase eligible claim that is not for the death he gin with because our resolution of this Atkins and Miller penalty under Appellant’s remaining whether we review claim will dictate claims.7 Atkins, above, Supreme the United States
As noted to the United States Eighth that the Amendment Court held penalty upon of the death prohibits imposition Constitution 536 U.S. individuals with intellectual disabilities. However, the Atkins Court “left the determina- S.Ct. mentally apply tion of how to the ban the execution crimes the individ- capital retarded defendants convicted Miller, ual 888 A.2d states.” *8 of in the definition intellectual disabil-
We considered Miller of Mental Retardation American Association ity by used eligible penalty A is not for death determination that being Appellant's in and would result sentence under Atkins Miller jurisdiction non-capital Superi As cases are within the vacated. Court, Gibson, 925 A.2d 171 or (2007), see v. 592 Pa. Commonwealth penalty- Appellant's guilt-phase and we review of will defer Appellant's phase pending PCRA court's determination claims eligibility penalty for under the death Atkins/Miller.
491 (“AAMR”), the American now Association on Intellectual and Developmental (“AAIDD”), Difficulties Psy- and the American (“APA”) chiatric Association standard forth in the Diag- set (4th nostic and Statistical Manual Mental ed. Disorders 1992) (“DSM-IV”). The AAMR disability defines intellectual as a “disability by significant characterized limitations both in. in functioning intellectual and adaptive behavior expressed as social, in conceptual, practical adaptive skills.” Id. at 629-30 Mental (quoting Definition, Classification, Retardation: (10th 1 Systems ed.2002)). of Supports The APA’s defini- tion, DSM-IV, as set forth defines “mental retardation” as “significantly subaverage (an intellectual functioning IQ below) approximately with 70 onset before age years 18 concurrent or impairments deficits in adaptive functioning.” Miller, 37). 888 (quoting A.2d DSM-IV
We noted Miller that the above definitions share three concepts: limited intellectual functioning, significant аdaptive limitations, and onset 18. Regarding concept of limited intellectual we functioning, explained: subaverage
Limited or intellectual capability repre- is best scores, sented by IQ which are approximately two standard (or (100). points) deviations below the mean concept The should also take into consideration the error of standard (hereinafter “SEM”) measurement for specific assess- ment instruments used. The SEM has estimated to been be three to five points well-standardized measures general Thus, functioning. example, a sub- average intellectual capability commonly ascribed to those who test on the below 65-76 Wechsler scales. (citations omitted).
Recognizing pursuant both AAMR and DSM- IV, IQ not, itself, a low support score is sufficient to disabled, classification of intellectually we considered the prong-the factors relevant the second existence limita- tions in adaptive behavior:
Adaptive social, conceptual, behavior is the collection of practical skills that have learned people been order *9 adaptive on lives, and limitations everyday in their
function adjusting ordinary by are reflected difficulties behavior daily The AAMR recommends life. demands made of through use be established such should limitations measures, “On these standardized measures. standardized operationally are adaptive limitations significant behavior is devia- at least two standard performance defined as (a) following three of either one tions the mean below social, or practical, conceptual, behavior: types adaptive (b) of concep- score a standardized measure an overall social, tual, practical and skills.” omitted). (citations footnote Under and Id. 630-31 con- language money and AAMR, include conceptual skills ability and the responsibility include cepts; social skills rules; preparation skills include meal practical follow Id. at 630 n. 8.8 money management. Miller the length not discuss third
This Court did explore no need to onset—stating, see concept—age “[w]e further, this is requirement of onset since concept age require the AAMR self and both DSM-IV explanatory n. age 18.” Id. that the be before onset sum, we stated: AAMR is that and the [the from the clear above What diagnosis similar and under very are definitions DSM-IV] takes into account like consid- of classification system either Therefore, petitioner may a PCRA hold that erations. we either classifi- retardation under his or her mental establish holding, assuming this system and consistent with cation either expert party presented an proper qualification, retardation under either classifica- testify to mental may as of these classi- Moreover, consistent both system. tion with score adopt IQ do not a cutoff systems, fication we since it is Pennsylvania, retardation in determining mental functioning the interaction between limited significant requires limitation in at least two Similarly, the DSM-IV areas; communication, self-care, living, following home social/in- self-direction, resources, skills, community functional terpersonal use leisure, skills, health, work, safety. academic deficiencies skills that adaptive establish mental retarda- tion.
Id. at 631.
A. Age Constitutionality Requirement Onset of of first
We address contention that pre-18 age of requirement Eighth onset violates the and Fourteenth to Amendments the United States Constitution. Specifically, Appellant argues: Atkins, justifications
Under for the death penalty— two capital retribution and of deterrence future crimes—are not met execution of individuals [intellectual with disabil- Executing someone with limited ities]. intellectual function- ing significant functioning, adaptive but without of proof pre-18 onset does not further policies. Requiring these [Appellant] prove his [intellectual existed disabilities] age rights before violates constitutional under the Eighth and Fourteenth Amendments.
[Intellectually cogni- disabled] individuals suffer the same tive, emotive, shortfalls, adaptive irresрective impairment. not age-of-onset [Appellant] their should face simply death because courts concluded he not could or show his limitations existed these because limitations he or developed when was 18 older. age-of-onset requirement Equal
The also violates the Protection Clause of the This Fourteenth Amendment. means two defendants with identical intellectual disabilities crimes, ages who commit identical but who have different onset, get solely could different sentences because differing date onset.
Appellant’s Brief at 43-46. matter,
As a we not preliminary note does couch issue in an claim. this terms of ineffectiveness counsel Further, Appellant where this identify does he raised Finally, petitions. claim his amended PCRA as the rejected observed, this Court court considered stating: appeal, claim Amendment direct Eighth cruel and unusu that it would constitute [Ajppellant argues simply him to subject penalty the death punishment al years. from his school IQ testing can no present he because limitations, present that his whether contends him should render began prior age eighteen, not they essence, argument, His penalty. for the death ineligible to the mentally deficient same is that murderer who mentally found to as a murderer who has been extent be punish from similarly exempt capital should bе retarded claim, rejected this that there finding ment. The trial court deficient individuals mentally is no national consensus exemption to the same as those found should be entitled addition, that the the court noted mentally be retarded. it that not all defendants who Atkins Court made clear fall range claim to retarded within mentally be *11 offenders whom there exists mentally retarded about Atkins, 536 against capital punishment. national consensus 317, 122 2242. S.Ct. U.S.
To raises this issue under the [Ajppellant the extent inclined, Amendment, not be in the Eighth we would ab- Atkins direction, beyond its legislative of to sence extend command. Atkins upon a national rule all express imposed States, impose death removing authority to capital Notably, a narrow class of defendants. penalty upon however, Court did not establish national stan- High (and retardation, implicitly thus recognizing for mental dard Atkins flexibility a certain amount of under approving) fact, believe, heavily against a unilat- weighs rule. This we Atkins scenarios, judicial extending action other eral where, here, as offers no evidence particularly [Ajppellant execution of those prohibiting a national consensus not meet the defini- mentally who are deficient but who do tion mentally retarded.
VanDivner, Accordingly, Appellant’s as A.2d Amendment Eighth previ- claim under the was agе-of-onset and, further, on ously litigated direct as appeal, age-of-onset failed to raise his claim under the Eighth and in his Fourteenth Amendments amended PCRA we petitions, hold that the court did err in him on denying relief 9544(a)(2).9 § this See claim. Pa.C.S.
B. Age Appellant’s Onset Disability Intellectual Appellant next contends the PCRA court erred in denying him relief on his claim based that trial counsel was failing ineffective for to present that would have evidence established that his intellectual disabilities manifested required by as Miller. claim,
In analyzing Appellant’s initially we consider the Appellant presented evidence that his pretrial hearing support his claim he intellectually Appel- disabled. lant first presented of Dr. Lawson Frederick Bernstein, Jr., a clinical and forensic neuropsychiatrist, who performed a neuropsychiatric Appellant, evaluation which MRI that, included an EEG. Bernstein testified addition to the results of the tests administered determine below, functioning, are discussed he considered “functional capacity,” and observed: many [Appellant’s]
there are
areas of
life where he has
always
subnormal,
in a very poor, really
range;
functioned
and I
note that people
mentally
should
who are mildly
job
work,
can hold a
so
referring
retarded
and can
I’m not
that,
se,
per
poor memory,
very poor
he has a
he
but
has
has filed a Petition to Allow Post-Submission Communica
tion,
18, 2015,
noting
Supreme
Court
June
United States
—Cain,
U.S. -,
issued a decision in
135 S.Ct.
v.
*12
Brumfield
(2015),
high
require
Based alia, retardation, dementia, with, “mild mental due inter of and cerebral vascular disease moder- head trauma mild disabilities,” history of childhood severity, learning [and] ate deficits, that “IQ-related opined id. diagnoses, present of his were aspect the mental retardation birthday.” to his 18th Id. 13.10 well presented psychologist also of 1, 2006, testified on September Adam Sedlock. Sedlock (3rd Intelligence Adult he administered Wechsler Scale ed.) range scored within the Appellant, test who borderline of IQ; mentally range of verbal within deficient 66-76 performance IQ; mildly within the retarded 60-70 IQ. for full-scale Id. at 68. Sedlock further range 61-71 Range he administered the Wide testified that Achievement sight/reading and that obtained a Appellant, Test to level; grade spelling grade rating at the second grade rating level; rating and an arithmetic at the grade grade at the first Memory level. Id. at 71. grade second Wechsler Sedlock, Appellant scored within Scales test administered auditory range impairment in the area immedi- the mild range impairment in the moderate the area memory, ate memory, immediate either the mild moder- visual that, "separate apart from his mental testified Dr. Bernstein retardation,” the MRI revealed thаt also had suffered a series strokes. small
497 ate of in Id. at range impairment other areas. 73-74. Sed- lock testified that he administered the Bender-Gestalt test to determine whether there are organic features affecting Appel- brain, lant’s and he “organic concluded that issues are result- in Id. at ing his mental retardation.” 75. Sedlock indicated that he Test, Stroop administered the Word Color result the of which has Appellant revealed that “significant deficit in the frontal lobe area of the brain.” Id. On 76. the Vineland Adaptive test, Behavior Scales an measures individual’s or ability adapt adjust to situations within or her his environment, Appellant scored within the mild of range mental Id. impairment. opined that Appellant Sedlock was capable scheduling own appointments, keeping checkbook, managing a reading a newspaper, or finding a name a telephone directory, although Appellant would be capable of writing “simple sentence” reading and possibly “simple directions.” Id. at 77-82. Ultimately, Sedlock con- cluded that Appellant was mentally Id. at 84. retarded.
In addition to the above into testimony, Appellant offered a “permanent evidence student from record” the Frazier District report School and a card from Mary Fuller Frazier High Memorial 1964-1965, Schоol for the school year when 10th grade. To authenticate the docu- ments, Appellant presented Peters, testimony Ann supervisor current the Fayette County Special Education Program, who testified that was a in the student Frazier School 1964 and 1965. Id. at 53. Peters District report noted card being identifies in 10th Appellant as grade “Special,” and indicates that he only attended school. Id. required days further noted She permanent student record for Appellant only lists information for the 1964-1965 Id. at 60. When year. school how a placed asked student would be Special in the Education “[tjhere Program, Peters stated was no formalized evaluation procedure placement special students ed. class in ’64 ’65,” and asserted who student demonstrated “a lack of academically” success might be referred to the usually within the same “which was education class
special building, maybe down the hall.” lay of several Finally, presented VanDivner, ex-wife, testified Loura witnesses. *14 year for a and a half from Appellant that was married she that, time, did not during Appellant that in telephone, up a look a number work, to dial and was unable meal, shop, use laundry, a book, prepare do telephone tools, repairs, newspaper, home read simple simple make 11/29/06, Hearing, Pretrial or N.T. manage money pay bills. write, not that “could but Appellant at 102-10. She testified Id. at 104. sentence, anything.” no or Lisanti, sister, Appellant Alice testified that Appellant’s id. school,” in at and that in classes special education “was write, read, he couldn’t add. He had couldn’t he couldn’t “[h]e Id. at She doing the schoolwork.” testified problems id., pronounce properly,” words Appellant that “couldn’t school, in other “made fun that, children Appellant while abilities,” him called names. learning him of his because aunt, Cronin, similarly Id. Trillis testi- Appellant’s 128-29. at write, math, read, spell. or that could do Appellant fied Id. at 164-66. intellectually assertion he was Appellant’s
To rebut Appel- evidence that disabled, the Commonwealth introduced and, a passed as a truck driver lant had worked test” order to obtain a Commercial Driver’s “recertification (“CDL”). Jr., Id. at 173. Beatty, Ronald a License W. of Driver Pennsylvania with the Bureau regional manager written and consist- Licensing, testified that the CDL test was Id. multiple questions. of 70 choice ed Dr. presented The Commonwealth also that, while Wright, Wright Dr. testified Bryan psychiatrist. write, read, perform or him he could not Appellant told to tell him how tasks, many was able mathematical a touchdown is many points are a dollar and how quarters 12/8/06, Dr. Hearing, Wright at 216. worth. N.T. Pretrial sentence, up when asked to make and write noted Dr. initially Wright so; told he was unable to do however, repeated requests, Appellant after “I wrote love you.” Id. at 234. Dr. Wright testified correct- ly spelled the “food” “money,” word misspelled but “truck” and “beer.” 242-43. Dr. also Wright testified that Appellant him told that he was able work outside clearing snow. Id. at 247.
Additionally, Wright testified that Appellant had told him that he had failed the CDL times, test several but eventually passed it it taking over the phone, and regular route was a route Pittsburgh between Jersey. Hearing, New N.T. Pretrial 12/8/06, 214. Howev- er, sister, Patton, Mildred testified that Appellant alone, never made truck trips and that one of Appel- lant’s girlfriends always accompanied brothers him. N.T. Pretrial Hearing,
Dr. Wright explained with, that he diagnosed Appellant *15 alia, inter history strokes, of small prior trauma, head disease, dementia, cerebrovascular possible cognitive impair- ment, antisocial personality disorder, and a possible learning 12/8/06, 217, 237, disorder. Pretrial Hearing, N.T. 245. Dr. Wright opined, however, that Appellant “does not have a Id. diagnosis of mental retardation.” of support conclusion, his Dr. Wright cited his belief that did not perform tests; to his on potential full that opinion his write, his ability understated read and fact that an individual who is not completely illiterate is retarded; necessarily multiple that risk factors has for development cognitive life; of in impairment later that, “in retardation, a diagnosis order make of mental somebody has to have of cognitive impairment evidence as aby tool, tested on an psychologist approved trained examina- tool, tion prior years age,” to 18 of not did exist Id. at 250-53. Appellant.
Based on presented hearings, the evidence at the the trial court determined that Appellant failed demonstrate that his of prior age intellectual disabilities existed to the 18. The trial court of IQ testing noted documented results are “the of ‘age existence onset’ to establish the evidence
best evidence, as that other such types prong,” recognized but records, rec- psychological service records, social school that an intellectual ords, prove be introduced to also could Opinion Trial Court disability manifested However, to the Motion, regard at 9-10. with Pretrial the trial court con- by Appellant, introduced school records cluded: identify [Appellant] not as mental- ... do
the school records Further, [Appellant] is no indicia that there ly retarded. for mental retardation. special education placed was Ann Supervisor Special Education Frazier School District time hearings at the pre-trial Peters testifiеd at no school, proce- formalized there was [Appellant] was Moreover, in special education. placement dure Patton, functioning [Appellant], Mildred who sister into education placed normally, special testified she was problems, mental with her because behavioral brother Thus, [Appellant] is no there evidence retardation. mentally education he was special because placed special [Appellant] may placed have been retarded. reasons, attend- including poor education for number Similarly, [Appellant’s] poor problems. ance or behavior any attendance rather than grades may poor reflect learning [Appellant] or disabilities. impairments mental records, social services present any other school failed that his records, prove records to psychological other originated age 18. mental before retardation to the respect With 10-11. Cronin, that Alice, aunt, Appel- Trillis sister *16 child, write, he read, or do math when was could not lant special no that those witnesses “have trial court observed or learning to identify diagnose or skill training disabilities Id. at 12. mental retardation.” alia, the trial Appellant challenged, inter On direct appeal, all three he to establish that failed determination court’s age of onset of his regard to the With prongs Miller. disabilities, emphasized “Sedlock ... opined that the onset of appellant’s supposed mental retardation prior age eighteen, occurred upon based his school showing records he was in special classes, education testimony appellant’s sister, and Dr. testimony Bernstein’s VanDivner, IQ does change over a lifetime.” rejected A.2d We Appellant’s arguments, and af- firmed the trial findings, stating: court’s no
We see error the trial finding court’s that [Ajppellant present failed to sufficient evidence establish that onset of his alleged mental prior retardation occurred to age eighteen. The court properly noted that there no IQ were from tests [Ajppellant’s produced; childhood and his school records do not establish that placed special he was education classes as a Indeed, result of mental retardation. the evidence demonstrated that a placement such could result from problems behavioral rather than from mental retardation. trial The court also recognized [Ajppel- lant’s excessive from very absences school could well have been the cause of his poor Thus, performance. academic [Ajppellant simply failed to that the onset of his establish alleged mental prior age eighteen. retardation occurred And, noted, as the trial court failure to [Ajppellant’s estab- lish necessary rejection this element requires of his claim of death penalty ineligibility due to mental retardation. 1186.
Thereafter, present and the focus of the in his appeal, petition, Appellant alleged amended PCRA that trial counsel alia, for, inter discover, was ineffective “failing develop, present ... conclusive evidence of mental retardation” which Petition, manifested Amended PCRA To support allegations of counsel’s ineffectiveness in this regard, at his PCRA hearing, Appellant presented, alia, inter Sheetz, of Dr. Alvin who served as Supervisor Assistant of the Fayette County Special Education Program from 1954 through Supervisor of Special from Program through Education 1970. In Dr. Sheetz of Special became the Director Interme Education Unit, capacity diate in that serving until his retirement *17 502 Dr. was positions, responsi- of his three Sheetz each
1993. Special the Education Pro- developing overseeing ble Fayette County. in gram a in process placing the student describe
When asked “First, explained: Dr. Special Program, the Education Sheetz too well. And the doing student academically [the wasn’t] principal. of it it to the reported teacher became aware I reported it to me. And examined The then principal [sic] an on the Stanford Benet They IQ child. had have Hearing, N.T. PCRA 50 and 75.” between regulations to state pursuant testified Dr. Sheetz in special a placed took effect in students could be IQan test which they given class unless were education Id. at 76.11 Dr. resulted in a score between and 75. Sheetz in IQ placed that no with an above 75 was ever child indicated Program Fayette County during his Special Education Id. at 78-79. When questioned accuracy about the tenure. testimony Appellant’s pretrial hearing Dr. Peters’ no for student procedure there was formalized evaluation Program in 1964 and Special Education placement might in 10th that students be grade, was when Pennsylvania copy of the De- introduced into evidence a (renamed Pennsylvania Department partment of Public Instruction 1969) Special Pupil Services Standards for of Education in Bureau (hereinafter Organization Special and Administration of Classes Regulations”) Pennsylvania The State "State from the State Archives. elementary Regulations provided, respect special classes for with students, inter alia: mentally retarded Classes shall include сhildren with Constitution: I.Q. elementary range chronological from 50 to 75 at approximately only age range. mentally Such classes shall contain defective proper groups be who declared after examination to educable are constituting of the size the classes. only by psychological or after full examination examiner Admission public psychologist, upon his recommendation. school Instruction, Regulations, Special Pupil Dep’t of Public Bureau of State Services, Additionally, regard secondary with November 1945. school), high Regulations (junior provid- and senior State students ed: chronological age up, or Constitution: Children 13 mental I.Q. range approximately approximately from 50 to This class problems for shall not include children who are behavior reasons other than mental retardation. Special placed Program Education due behavior problems, issues attendance Sheetz that her indicated “totally was incorrect.” Id. 81. Based evi- dence that placed established in the Spe- *18 cial Program 1958, Education beginning in when he was 9 years old, infra, Dr. see testified Appellant’s IQ Sheetz “definitely” was 75 below in 1958-1959. Id. presented Purcell, also
Appellant the of John the Solicitor the for Frazier School District for 20 past years. the that, initially, Mr. Purcell confirmed the only school record for could be Appellant’s report located was card for year, the 1964-1965 school 15 Appellant was and in when the 10th grade, which in the Special indicated he was Program. However, that, Education Mr. explained Purcell conducting after a family search for records on the based particular name for a time period, and additional records were in a basement in the subsequently storage located area offices of school in high Perryopolis. administrative N.T. at 61-62. Mr. Hearing, Purcell indicated that it “a little bit difficult” to the records was more obtain because, during the period, elementary relevant time certain closing, at schools while others were Id. 63. opening. were that, explained Mr. District Purcell further while the School records, all tries to retain student some lost records had been flood, in a even that were copied some records damage. showed evidence moisture or water Id. described, The additional records Mr. Purcell and which included, into Hearing, were introduced evidence at the PCRA alia, Register inter a Jefferson School District for Attendance 7, 1956-1957, Appellant, the school year age when (PCRA 9), grade first at Madison School Hearing Exhibit for Jefferson District School Attendance Rеgister School 1957-1958, 8, repeated school year Appellant, age when grade, first and which recommended that not be but, rather, promoted grade, placed Special be in the second (PCRA Program following Education for school year 7). infra, As discussed school Hearing Appellant’s Exhibit 1963-1964, school 1958-1959 years through records for the 504 9, grades through were Appellant should have been in
when introduced into evidence. never also student permanent The additional included records siblings. permanent for The records several that he re- Harry for brother indicates record 1959, grade;12 May peated kindergarten and first both took Stanford Binet test scored age at he the Revised 72; Special Program in the placed and he was Education least year, 1959-1960 school where he remained Harry’s Pupil through Appellant, Perma- Relevant ages siblings nent Record listed each his their and/or age was listed as grades, including Appellant, whose Class.” “Special being as was identified into rec- permanent also introduced evidence the sister, Mildred’s indi- permanent record ord Mildred. she scored a on the cated Stanford test, Program in the in the Special Binet and was Education *19 during grade. 10th 11th The Frazier District School and Joseph record for brother indicates permanent that, 1968, 10, Jоseph at on the age scored Stanford 74 test, placed Special Program in the Education Binet and school beginning year. Finally, per- with the 1967-1968 that, Ruth manent record for sister indicates on at she a 74 the Stanford Binet test. scored Rich, of Dr. presented also Susan counseling, treating an in the of and expert diagnosing, field (“FASD”)13 Fetal Alco- Spectrum Fetal Alcohol Disorder and notwithstanding, testifying Appellant’s The when 12. school records having repeated any grades. Hearing, Harry PCRA denied N.T. Hearing, prenatal FASD is an term to refer to all alcohol- 13. umbrella used impairments, including Christopher Fanning, Defining induced FAS. Disability: Spectrum. Capital Fetal Alcohol Disorders and Intellectual Punishment, (2010-2011) Rutgers (citing Timothy Law Rec. 1 E. Green, (FASD): Melvyn Spectrum A Alcohol Moore & Fetal Disorder System, Need the Criminal Justice 19 Crimi- Closer Examination 2004)). experi- Reports (July may FASD nal ence, Individuals with coordination, alia, behavior, hyperactive poor and attention inter school, disabilities, memory problems, learning speech difficulties (“FAS”). hol Syndrome Dr. Rich testified that FAS is charac- terized by dysmorphic features, facial of dys- evidence brain function, prenatal postnatal growth deficiency in the of presence prenatal exposure. alcohol specific With regard to of dysfunction, effect FAS brain Rich Dr. explained that an with FAS individual
has a degree cognizant deficit that doesn’t have to tobe degree of mental retardation. could variety It be a neurodevelopmental problems which include damage, brain neurologic problems, neuropsychiatric problems, learning disabilities, problems, attention executive dysfunction, that sort of thing.
N.T. PCRA Hearing, 10/24/12,at 11-12.
Dr. Rich that testified she physical, conducted neurological, psychiatric examinations Appellant, diagnosed him with partial FAS. Id. 32-33. With regard to Appellant’s facial features, Rich Dr. noted that several of Appellant’s FAS, features were characteristic including his wide set eyes, nose, short upturned thin upper lip, flattened nasal bridge, and ears are tilted back low set. at 17- Id. Dr. Rich further many observed while individuals experience a “lessening softening they features as older, get because the face continues to develop,” Appellant “still nearly every carried one [facial] features” are consistent -with 16. Dr. Rich also FAS. testified MRI of Appellant’s significant reveals damage brain brain only by heavy would be caused prenatal exposure to alcohol: “You don’t degree often, see this malformation that because it means he heavy exposure.” had alcohol Id. at Rich suggested Appellant’s mother а binger” “had be who “drank *20 say pretty four to drinks frequently five throughout pregnancy.” Id. at 31.
Finally, explained diagnosed Dr. Rich that Appellant she FAS, only “partial” FAS, with as full opposed to because she did not information as have sufficient to Appellant’s growth development a as child. She stressed that “partial” the term IQ, language delays, disability poor and low and reason-
ing judgment http://www.cdc.gov/ncbddd/fasd/facts.html. and skills. See damage, and degree Appellant’s of brain did describe shorter, .4 if centimeters further that she stated records, “guaran- she could growth she his childhood or if had to of he is meet damage, going brain you degree with [his] tee criteria for full FAS.” Id. 33.14 Rich, Appellant present- testimony Dr. In addition diagnos- in Jacquin, expert of Dr. Kristine an ed that she Jacquin Dr. testified ing intellectual disabilities. -two full evaluating Appellant, which included spent 84 hours conducting person; days three days evaluating Appellant people Appellant; who knew conduct- in-person interviews Appellant; who knew people interviews ing telephone 11/16/12, Hearing, PCRA at 29-30. reviewing records. N.T. she inter- Appellant, addition Jacquin Dr. indicated wives; Harry, and their siblings, Albert and Appellant’s viewed aunts, Smith, and anoth- Trillis Cronin Cecilia Smith; aunt; cousin, Appellant’s ex- Raymond er VanDivner; Jamie; Appel- wife, Appellant’s daughter, Loura Alice; Dr. Id. аt 32. sisters, Mildred Sheetz. lant’s IQ that the test administered Jacquin opined previously Dr. IQ has an revealed that Appellant by Sedlock to the correlation regard 66 and 66. Id. at 58. With between an IQ of an adult test individual’s the results between Jacquin testified: diagnosis,” “pre-eighteen strongly. It is IQ actually very correlates adult test [A]n you IQ that an adult test thought to the case when have be person’s can that that level you score that assume is to their functioning IQ equivalent that adult test on, functioning have functioning what their would been an that time appropriate IQ childhood with test if inter- exception there some childhood. With concluded, Rich’s unrebutted testimo- The PCRAcourt based on Dr. partial from ny, established that he suffers fetal "has syndrome.” Opinion, Court at 46. Notwith- alcohol Pennsylvania standing diagnosis, determined that this the PCRA court exception recognize partial syndrome as an law "does not fetal alcohol and, further, imposition penalty,” this Court death imposition exception to the of the death “has and the construed Atkins only diagnosed with mental retarda- penalty include a defendant VanDivner, 1189). (citing 962 A.2d Id. at tion.” *21 vening you event would lead conclude on based something research that interfered with their intellectual functioning. a really So severe injury head that dramatical- ly impacts functioning their somеthing could be that would you make think that the adult IQ test was an overestimate or an underestimate depending the nature of change. However, at 43-44. Dr. Id. Jacquin explained: further if [E]ven you have kind intervening that makes event you uncertain that IQ the adult is equivalent to what child IQ been, would have there are really strong, robust meas- ures, what we call pre-morbid intelligence, and the word pre-morbid this context refers to pre-eighteen pre- injuries any that might have occurred. And those indicators have been shown be solid and despite robust head injuries, despite passage of time. at 44. Jacquin that,
Id. Dr. acknowledged instances, in rare disease or injury severe impact “could intellectual function- ing,” that, but reiterated generally, “IQ is stable over time.” Id. 58-59. asked if thought When she Appellant’s head injuries were enough however, severe to have IQ, affected his Dr. Jacquin replied that she did not. Id.
Dr. that, further Jacquin explained from upon learning that his during aunts mother drank heavily time she was pregnant, spoke she with Dr. Rich. Dr. Jacquin opined had several characteristics that are generally FAS, associated with function- including “executive deficit, ing problem solving,” difficulties with facial features, that, prenatally, as FAS occurs resulting impairment necessarily occurs Id. at 66. Ultimately, alia, Jacquin on, testified based inter score, IQ adult “the related to being evidence special education meant, and what that that you had to have an IQ range,” mental retardation level and other factors, she is “strongly convinced that [Appellant] meets the criteria for pre-eighteen onset of disability, intellectual intellectual, significantly subaverage functioning.” 74-75. Mary Christy, presented also Exam License Island Driver’s
who at the Neville worked took his recertification test when Center take a non- that individuals could Christy a CDL. testified *22 the test-taker test, whereby computer a asked written CDL only the hook-up, and test-taker through telephone a questions true, to and another to press one button answer to needed Id. at 6. This testing place method of took a answer false. the written test administered. room from where was separate indicating Appellant had Id. paper a Christy was shown on February CDL version the test passed the non-written signature on the was 5,1992, paper confirmed that the and she Id. 7-8. hers. ex-wife, DiJoseph, Judith Ann testified
Finally, Appellant’s and, to to from 1988 that she was married to a to time, Appellant had take test during point one that, his CDL license. Id. DiJoseph at 126. testified obtain not be she concerned would able because was him own, quizzed approximately on for the test his she pass Appellant had day period over a of two months. hours manual, DiJoseph read of the CDL and would copy obtained answer, repeating the give Appellant each and then question, question. the until able to answer each process Appellant was once further testified 127-28. She test, trucking trips him on his accompanied the she passed difficulty logs” the were “keeping up he had with because tolls money him the and required; she also handed Id. at 130.15 maps. read rejected claim that
Ultimately, court PCRA discover, failing develop, trial counsel ineffective disabilities, and, more intellectual present evidence intellectual disabilities evidence that specifically, hearings: presented five witnesses at the 15. The Commonwealth Monkelis, Zerega Trooper one of Attorneys Harper; James officers; Thomas, arresting who that he testified saw Matthew occurred; shooting Trooper Pierre Wil before the shortly victim son, shooting, number of the witnesses who interviewed a including Chrissy Cheree Parill. None these witnesses Newman and relating Appellant’s disabilities. testimony offered so, existed 18. In doing the PCRA court first opined that “the assumptions by Jacquin made Dr. cannot be nor substantiated sustained.” PCRA Court Opinion, regard With to Dr. Jacquiris opinion that Appellant’s injuries head did not his IQ, affect the PCRA court noted her testimony was inconsistent with trial testimony Bernstein, opined injuries who that Appellant’s head did im- pact his functioning:
Disregarding record, this evidence Dr. Jacquin, who is a psychologist doctor, not a medical made her own medi- diagnosis cal and concluded that the three known head injuries by [Appellant] suffered have no impact had [Appellant’s] functioning. Such a conclusion cannot be ac- cepted in light and must fail expert medical witness called at trial. It [Appellant] also causes question this Court to the credibility agenda of Dr. Jacquin.
Id. at 24.
The PCRA court also Dr. Jacquiris criticized reliance on the information to provided regarding her Dr. Sheetz the state regulations prohibited that students with IQs above 75 from in being placed Special Program, stating: Education Dr. testify Sheetz could not as to definitively whether he special was the in only education evaluator acknowl- edging that he “was probably only doing but, one it” at point, some he “had to hire other people.” Speaking ... as to the duration of a student’s in placement special program, education Dr. that agreed Sheetz once a student education, requiring special was identified as that student remain in special would throughout education his school records, career. to regаrd With the retention of Dr. Sheetz testified that IQ testing occurred, he placed would have if in results the student’s perma- folder and that “school stay However, nent records in the school.” Dr. Sheetz testimony offered no or explanation why as to there no were records in [Appellant’s] indicating folder that he had been tested. omitted) (record original).16 (emphasis citations
Id. at 25-26 that, according Peters, to “a for- The PCRA court observed in special students procedure placing [for evaluation malized effect until 1975” and “there was did not take class] education any to whether evalua- folder indicate nothing [Appellant’s] placed to why [he] tools determine was were used tion special education.” Id. at 26. Wright’s that it found the PCRA court noted Dr.
Finally, Spe- to Appellant’s pretrial hearing be credible. testimony Dr. Wright’s PCRA court recounted cifically, the “no that school records contained reference 27; id. 18,” Appellant that prior age mental retardation “I read, phrase you,” wrote the love N.T. was able to 12/8/06, 234; Appellant multiple had Hearing, Pretrial life; later developing cognitive impairment risk factors education, you cannot [Appellant] special “because retarded”; mentally there he was assume that he was because try a lot оf to fool me.” “has reasons further Court at 28-29. The PCRA Opinion, PCRA opinion, in his Wright’s testimony cited “in retardation,” diagnosis “does not have a mental retardation, diagnosis mental there must order make eighteen.” to the Reiterat- testing prior be ing that the additional school records and his hearings at the PCRA “are siblings presented were tested,” identify being and “do not [Appellant] devoid retarded,” the PCRA court concluded: [Appellant] mentally as fact no exists to “the remains that credible evidence establish or mental retardation [Appellant’s] intelligence quotient of onset.” Court required pre-eighteen age 1/17/14,at Opinion, 30-31. *24 to response Appellant’s argument that the PCRA court present that to evidence determining
erred in failed to the prior age that disabilities existed his intellectual rejected properly that the PCRA court Commonwealth asserts Sheetz, Jacquin crediting of Drs. instead testimony the quoting opinion, PCRAcourt’s we have corrected the 16. When from the spelling of Dr. Sheetz’s name. I—1
Ol i-i. of Dr. testimony Wright, and that Appellant reiterates any failed to introduce evidence of IQ prior age to testing in Bracey, recognized we supra, As our of a review PCRA court’s determination as to petitioner whether a is Atkins and Miller involves intellectually disabled to pursuant question a mixed of lаw and fact:
A question involving whether a petitioner fits the definition disability] of [intellectual is fact it intensive as will primarily upon be testimony experts based multiple involve credibility determinations. Accordingly, our standard review is whether the factual findings by are supported substantial evidence and whether the conclusion legal drawn therefrom is clearly erroneous. highly We choose this deferential standard because the court that finds the facts will know them reviewing will, better than the court so application its of the law to likely the facts is to be more accurate.
PCRA court relied Peters’ for in the procedure placing students formalized evaluation 1975, Program prior Peters admitted Special Education employed by during not the school district that she was in equivocal she her period, relevant time and was in placed Special were Education to how students as cross examination Program. During the Commonwealth’s pretrial hearing, when asked to confirm Appellant’s Peters at made” special informally into education “was placement school, “In replied: in Peters during Appellant the time was there, I years ago, That 40 and but most cases. was wasn’t 11/27/06, Fur- Hearing, Pretrial 61-62. most cases.” N.T. ther, expressly suggestion stated that Peters’ Dr. Sheetz placed Special Program in the Education might a student be problems manifestly was due issues attendance behavior 10/24/12, Hearing, at 81.18 N.T. PCRA incorrect. cor- Appellant’s siblings records of further
The permanent explanation procedure by Dr. roborate Sheetz’s during placed Special Program students were Education Mildred, Joseph, Harry, the time school. Appellant attended IQ they years tests were 9 to given were when Ruth and, 75, age, receiving they after test scores below were Special Program. IQ in the Education The test scores placed on their Appellant’s siblings permanent were recorded records, registers attendance yearly but listed were Indeed, intro- permanent cards. records report or their contain Harry, Joseph, into and Ruth evidence duced IQ pre-eighteen of mental PCRA Court [Appellant] had a retardation.” contends that the PCRA court Opinion, 26. Jacquin relying misapplied preclude Dr. from on the Pa.R.E. 703 disability regulations Appellant’s to conclude intellectual manifest- state 38, 18, age prior Brief at and that the PCRA court ed evidence, report refusing Jacquin’s into admit Dr. erred discounting Jacquin’s opinion improperly on this basis. Id. at 40. regarding light of our conclusion onset disability, separately this we need not address claim. petition from to his PCRA affidavits three individ- attached being special classes with uals who attested to education Appellant never caused all of whom stated that between class, but, rather, during slept quiet and often class. trouble in Petition, Appellant’s Amended Exhibits information and grades years for the school both to their subsequent respective IQ tests in second or third grade. above,
As only discussed records the school district *26 produced pertaining specifically Appellant included Appel- lant’s report card the 1964-1965 school year, Appel- when lant was in 10th grade; Jefferson School District Registers Attendance years for the school 1956-1957 and 1957-1958; and a permanent Appellant, record for which contained information only pertaining to the 1964-1965 school year. Although both 1957-1958 register attendance Appellant’s grade report 10th identify card being as in Special Program, Education they do Appel- not indicate IQ score, lant’s repeatedly a emphasized by fact the PCRA Court. See PCRA 1/17/14, Opinion, Court (noting at 25-26 that that, Dr. Sheetz testified if he an IQ administered test to a student, the results in placed would have been the student’s that, folder and “school generally, permanent records in stay school,” that observing “Dr. no Sheetz offered testi- mony or explanation why as to there no were records tested”). [Appellant’s] indicating However, folder he had been Purcell, District, the Solicitor for explained the Frazier School that, although the School District to retain tries all student records, flood, some of its a records had been lost and even some of copied the records that were showed evidence Id. This uncontradicted evidence moisture or damage. water may account for the of a absence set records for complete Appellant, including permanent containing informa- record tion and, rate, for more than single year, any school undermines the PCRA court’s focus on as having Dr. Sheetz no explanation offered as to why there were no records indicating Appellant given IQ had been test. light an all above, there no we conclude basis for the PCRA court discount Dr. Sheetz’ that Appellant could not placed have Special Program been Education unless IQ he had an given been test in a which resulted of 75 score below.
cn t—* Dr. to the PCRA court s determination respect
With head regarding Appellant’s the effect Jacquin’s testimony functioning was inconsistent with injuries on his Bernstein, we note that testimony of Dr. expert medical records medical Jacquin initially testified from “no effect the head lasting that he suffered indicated records, safe “[felt] on those she injuries” and based injuries impacted his func- that those head hadn’t concluding However, Dr. Hearing, tioning.” N.T. Appellant, own evaluation of adminis- conducted her Jacquin measuring pre-morbid tests additional directed tering three head functions, suggested Appellant’s results Id. 59, 60. IQ. his injuries had affected injuries at trial that head Dr. Bernstein testified dementia, his аbility in mild affected may have resulted but, distinguished Jacquin, Ap- like Dr. impulses, his control [Appellant] “I IQ: from his believe pellant’s dementia per mental retardation objective mild meets criteria *27 has I would term a testing. He also what neuropsychological to trauma and mild due both head cerebrovascu- dimensia [sic] added). Trial, 2/12/07, 124 (emphasis lar N.T. disease.” explained: Dr. Bernstein further you IQ If take an long memory. term IQ predicated is school, grade test, you lot of it is about stuff learned a to it school, etc., spit have to be able recall high you on in preserved early to dimensia IQ it out. So tends be [sic]. Thus, testimony Appellant’s that Jacquin’s Dr. IQhis consistent with the injuries not affect
head did of Dr. Bernstein.19 testimony medical expert reasons, to For all of we are constrained hold the above to finding court’s factual failed the PCRA manifested that his intellectual disabilities establish trial, Moreover, Appellant's by the time Dr. Bernstein testified rejected Appellant’s pretrial petition to bar death trial court had Thus, Appellant’s option penally best under Atkins Miller. testimony present avoiding capital Bernstein's a sentence was injuries impacted ability to control his opining that head impulses. age 18 not supported by substantial evidence. Consequent- ly, we find that claim trial counsel was ineffeсtive for failing present this evidence his pretrial hearing arguable has merit.
However, as supra, noted order to prevail on a claim of ineffectiveness under PCRA, a petitioner must also establish that no reasonable basis existed for counsel’s action act, failure and that petitioner suffered prejudice error, as of counsel’s result with prejudice meas ured whether there is a reasonable probability that the result of the proceeding Pierce, would have been different. 786 A.2d at court, 213. The PCRA having Appel concluded claim arguable merit, lant’s did not have did not address these two prongs additional the ineffectiveness analysis.
Accordingly, we vacate the PCRA court’s order and remand this matter to the PCRA court for preparation of a supple- mental opinion addressing any whether reasonable basis exist- ed for trial counsel’s failure to investigate the state regulations pertaining to special-education placement which existed when student; was a failure seek additional school records for Appellant siblings and his initially after receiving only Appellant’s attendance record for the 1964-1965 school year; and to present Sheetz, failure of Dr. responsible special individual placement education at the time Aрpellant was a student.
Additionally, petitioner seeking because relief under the PCRA must prejudice by demonstrate is a showing there probability reasonable that the result of proceeding would different, have been court the PCRA must also consider whether, by demonstrating that his intellectual disabilities *28 prior 18, existed to age Appellant’s petition preclude imposi- tion of penalty the death pursuant Atkins and Miller would have granted. determination, been this making the PCRA Miller, court must prongs and, address the first and second specifically, consider address should claim that trial failing counsel was ineffective for to introduce evidence intellectually an non- pass disabled individual could
516 as this claim is study, extended CDL test after written in adaptive prong to the Miller—limitations relevant second behavior. remanded. Jurisdiction retained. case
Order vacated the decision this participate EAKIN Justice did case. BAER and Justices and STEVENS Justice SAYLOR
Chief join opinion. concurring opinion. files a
Chief Justice SAYLOR SAYLOR, concurring. Justice Chief following subject to the observa- majority opinion, I join tion. majority’s I remand a determination support the
While
necessary
prove
intellectual
other two factors
disabil
Miller,
144,
Pa.
888
624
v.
585
A.2d
ity under Commonwealth
(2005),1
directing
I
the remand
circumspect
am
about
through an inef
necessarily should
channeled
proceedings
be
514-16, 130
Majоrity Opinion,
See
A.3d
overlay.
fectiveness
trial counsel had a
(remanding to determine whether
at 695-96
evidence
failing
discover additional
reasonable basis
disability,
intellectual
indicating
and whether
The United
Court has held that
prejudiced).
Supreme
States
intellectually
the execution of an
disabled offender is excessive
Amendment;
thus,
Eighth
the federal Constitution
under the
upon
government’s pow
a “substantive
places
restriction”
Virginia,
er to take the life
such an offender. Atkins v.
536
(2002);
304, 321,
2242,
122
S.Ct.
Richard Andrew Supreme Pennsylvania. Court of
Argued April 9, 2014. 29,
Decided Dec. course, post-conviction 2. Of ordinary proceedings centered on the counsel, stewardship may it not be essential for the court to make a merits; rather, every full assessment underlying facet of the as a rule, general only proceed point determining the court need to the However, "arguable setting, merit” of claims. in the discrete Atkins established, "arguable prejudice and where merit” and are it would grossly seem assessing to be inefficient refrain from the full merits of (since prisoner actually whether the suffers from disability intellectual considering this alternative would entail relief in terms of whether a awarded, proceeding new step Atkins should be as an intermediate determining whether the death-sentence should be vacated and a life Indeed, imposed). sentence review cases where an Atkins collateral pursued claim overlay, has been without the ineffectiveness contemporaneously courts have made the ultimate determination of disability intellectual and vacated the sentence of death. See Common- 75, 77-80, (2015); Bracey, v. wealth 632 Pa. 117 A.3d 272-73 Hackett, 567, 571, (2014); Commonwealth v. Pa. 99 A.3d DeJesus, 70, 73, (2012). Commonwealth v. 619 Pa. 58 A.3d 64-65 Moreover, above, point as indicated at the at which disabili- established, ty highly problematic denying it seems to consider relief Thus, grounds. on reasonable-strategy adjustments some to the con- approach post-conviction may ventional claims be in order for this unique species of claim.