*1
Decided Dec. *6 Wiseman, Moreno, Michael for Ter- Philadelphia, James Williams, appellant. rance Burns, PA, Philadelphia, appellee. J. for the Com. of
Hugh C.J., CASTILLE, NIGRO, NEWMAN, CAPPY, Before: *7 SAYLOR, BAER, EAKIN and JJ.
OPINION Justice EAKIN.1 denying
Terrance from the order appeals peti- Williams (PCRA), Act tion for relief under the Post Conviction Relief §§ 9541-9546. Pa.C.S. 11, 1984, appellant Draper and Marc lost their
On June on a street corner. left to money gambling Appellant get victim, Norwood, from the Amos and returned money with Later, up Appellant drove to the two. told Norwood $10. Norwood, to take from Draper they going money were some the three men left in car. directed Appellant and Norwood’s Draper Norwood to a secluded area where he and forced car, him, out of the then took gagged Norwood bound and and iron, money Appellant, and other items from him. with a tire wrench, a Draper, and beat Norwood to death and fled. night, appellant body. Later that returned and burned the 3, 1986, February jury On a convicted of first appellant murder, robbery, and After a degree conspiracy. penalty (1) hearing, aggravating found two circumstances: reassigned 1. This case was to this author. felony;2 a killing perpetrating while committed
appellant
(2)
history
felony
a
convictions
significant
had
appellant
and
The
person.3
or threat of violence to
involving the use
presented,4
evidence
considering
mitigating
after
jury,
circumstances, and sentenced
appellant
found no mitigating
9711(c)(iv).
§
death.
42 Pa.C.S.
See
motions,
sentence
includ-
assigned
post
counsel filed
Newly
trial counsel’s
The motions were
ing claims of
ineffectiveness.
appeal
filed a direct
this
hearing; appellant
denied after a
Court,
of sentence. Common-
judgment
affirmed
which
(1990).
Williams,
524 Pa.
Appellant pro petition filed PCRA new filed an amended 1996. After appointed petition record, the a careful hearings, argument, and review counsel was appellant’s petition. court denied New PCRA appeal and this followed. appointed raises 23 issues his brief which have been of discussion:5
reordered for ease failing investigate trial counsel 1. Was ineffective incompetency? indicia of present significant appellant’s in a peremptory use its strikes 2. Did Commonwealth manner, of his racially discriminatory depriving appellant thus Sixth, and Fourteenth Amendments Eighth, under the rights I, 1, 9, 13, §§ to the Constitution and Article & United States Pennsylvania 26 of the Constitution? Was denied *8 9711(d)(6). § 2. 42 Pa.C.S. Id., 9711(d)(9). §
3. mitigating age presented appellant’s evidence of 4. Defense counsel crime, id., 9711(e)(4), appellant's § the time of the character and record, id., 9711(e)(8). § when 5. This Court is aware of the felt need to leave no stone unturned However, appeal. quality presents capital a we note that the of counsel representation by the number of issues raised. It not is not measured is necessary patently unavailing in to raise matters order to ward off fears ineffectiveness; attorney disguise finding good will of a later of a flurry good points by camouflaging of and thus weaken them makeweight clearly which have no merit. issues prior to his claim? Were all opportunity litigate full and fair claim? failing litigate counsel for to this ineffective the during guilt use false evidence prosecutor 3. Did ineffective for prior of the trial? Were all counsel phase to this claim? failing litigate plea agree- fail to disclose prosecution portions
4. Did the counsel prior Were all prosecution ments with two witnesses? claim? failing litigate ineffective for to this for trial err it failed to a motion grant 5. Did the court when provide failed to dis- mistrial made after Commonwealth an identification of the victim’s covery concerning failing litigate all for to prior wife? Were counsel ineffective claim? this to to incarcera- appellant’s
6. Were references cocaine and allegedly by appellant improp- tion contained letters written trial? counsel for erly prior admitted at Were all ineffective claim? failing litigate to this motion
7. Did the trial court err when it denied mistrial efforts to upon repeated present based Commonwealth’s at the time intent to deceive testimony concerning appellant’s counsel prior he all provided handwriting exemplars? Were litigate ineffective for this claim? failing trial err a motion for mistrial 8. Did the court when denied made in upon prosecutor’s prejudicial based statement failing all jury? prior front Were counsel ineffective this claim? litigate prosecutor improper prejudicial 9. Did the make an to call trial? reference to failure witnesses appellant’s failing litigate all counsel ineffective for this prior Were claim? all prior failing litigate
10. Were counsel ineffective for per- her impropriety prosecutor’s summation which credibility opinion expressed concerning sonal appellant’s testimony? instructions, im- accomplice Did the trial court’s which in the of the offense
plied appellant involved commission *9 alibi, when the defense asserted was appellant’s violate right to due process? Were all prior counsel ineffective for failing litigate to this claim?
12. trial Was counsel capital ineffective at sentencing? Were prior counsel ineffective under the same standards for failing to litigate trial counsel’s ineffectiveness?
13. Did the application of the “D6” aggravating circumstance to appellant, who the jury may have found guilty as an accomplice, the plain violate meaning of the death penalty statute, and result in the arbitrary and capricious imposition of a death sentence? Were all prior counsel for ineffective to failing litigate this claim?
14. Pennsylvania’s Is “significant history” violent felony convictions aggravating circumstance unconstitutionally vague on its face and as applied to appellant? Were prior all counsel ineffective for failing litigate this claim?
15. Did the constitutional in appellant’s infirmities prior con- viction result an arbitrary and capricious finding of the “significant history” aggravating circumstance? Were all pri- or counsel ineffective for failing litigate this claim?
16. Did prosecutor knowingly use false evidence during the penalty phase? Were all prior counsel ineffective for failing to litigate this claim?
17. Did the prosecutor inject improperly personal her opinion regarding the propriety the death penalty? Were all prior counsel ineffective for failing to litigate this claim? Is appellant entitled to sentencing phase relief because
the trial court’s penalty phase jury instruction violated Mills v. Maryland? Were all prior counsel ineffective failing litigate this claim?
19. Did the trial court’s failure to instruct the jury that “life imprisonment” means life without possibility of parole violate appellant’s constitutional rights? Were all prior counsel inef- fective for failing litigate this claim?
20. Was appellant’s death sentence a product of improper racial discrimination in violation of the Pennsylvania capital Constitution, and the statute, Pennsylvania
sentencing all counsel ineffective prior Constitution? Were States United *10 litigate to this claim? failing for this by review” Court performed Did the “proportionality 21. meaningful appellate process deny appellant due violate to failing for liti- all counsel ineffective prior Were review? claim? this gate litigate ineffective to failing all counsel prior
22. Were in appeal? raised this claims to relief from his conviction and entitled
23. Is of the errors de- because the cumulative effect sentence of herein? scribed PCRA, appellant under the must
To be entitled to relief claim, error has not show, allegation to each of as waived, 9543(a)(3), § or 42 Pa.C.S. litigated previously been to or prior during “the issue litigate and that failure not trial, or on direct could have during appeal review unitary rational, tactical decision strategic result of or any been the Id., 9543(a)(4). if litigated § An issue previously is counsel.” in could have appellate petitioner court which the highest “the of a has on the merits right as matter of ruled had review ” Id., 9544(a)(2).6 § issue.... penalty phase that the court’s Appellant’s claim trial 367, Mills v. 486 U.S. 108 jury Maryland, instruction violated (1988), 1860, previously litigat 100 384 has been Ct. L.Ed.2d S. requires Mills a death' sentence be appeal. on direct ed trial there court’s probability if is a substantial vacated to conclude jurors have led reasonable jury instruction could they those factors which only mitigating could consider they Id., 384, 108 1860. to exist. S.Ct. On unanimously found Frey, this relied on 520 Commonwealth appeal, direct Court (1989), which held instructions Pa. 27 where impose is death necessary a unanimous verdict stated 3, 4, post in motions and decided 6 and 17 were raised trial Issues However, adversely appellant. highest court which since the right has not ruled on appellant was to review as matter of entitled issues, litigated. they not 42 previously are See the merits these 9544(a)(2). § Pa.C.S. fact regarding required is sentence, further instruction no unanimously, since found need not be factors mitigating require not unanim does statute penalty death Pennsylvania’s Williams, at 82. circumstances. mitigating establishing ity claim, and he is Mills rejected appellant’s Accordingly, we .v Commonwealth the PCRA.7 See it under entitled to revive (2001) (appellant n. 2 A.2d Pa. Bracey, litigat claims previously relief of conviction post cannot obtain counsel of prior ineffectiveness by alleging appeal ed on direct relief). theories presenting new factor the aggravating claim that felony) 9711(d)(6) perpetration during committed (killing § accomplice an him because he was improperly applied this appeal, direct litigated. On been previously has also *11 aggravating that this argument appellant’s Court addressed no proof there was to him “because apply did not circumstance co-brutalizer, Drap than his rather appellant, presented Williams, 83. This Court er, the fatal blow.” landed of the in the context raised argument, “This when concluded: speciousness; the level of not even reach stage, does penalty claim, the same not address ludicrous.” Id. We will simply is relief, setting.8 in the collateral theory of cloaked in a different Furthermore, recently held Mills Supreme Court the United States 7. 406, Banks, 542 U.S. 124 retroactively. Beard v. apply See does not 2504, (2004). appellant's occurred trial 494 Since S.Ct. 159 L.Ed.2d Mills, 1986, apply to his in Mills does not years prior to the rule two case. 586, Lassiter, Pa. 722 A.2d v. 554 Appellant contends Commonwealth (1998) Lassi- his death sentence. (plurality), mandates reversal of 657 9711(d)(6) accomplice may applied an who does not be held “[§ ] ter bringing completion or killing it to in the sense of not ‘commit’ However, Id., the fact aside from Lassiter finishing it.” at 662. final, jury appellant's judgment of sentence became after decided felony history convic- significant of violent appellant had a also found existed, circumstance, 9711(d)(9), Thus, § aggravating tions. another found; penalty would still mitigating were no circumstances and 490, Christy, Pa. A.2d 511 515 death. See Commonwealth have been 832, (1986) (since aggravating and no circumstance found one 842 circumstances, though upheld even another mitigating death sentence invalid) (citing Commonwealth v. is held aggravating circumstance 730, (1984)); 485, 42 Pa.C.S. see also Beasley, Pa. 475 A.2d 738 504 l(c)(l)(iv). § 971
All except appellant’s two remaining issues assert trial counsel’s ineffectiveness during guilt penalty phases, and as well as appellate counsel’s ineffectiveness for failing raise these issues on direct appeal. Any alleged error during guilt and penalty phases has been waived because of trial it; however, counsel’s failure to raise still may obtain relief for trial counsel’s ineffectiveness if he is able to demonstrate counsel appellate was ineffective for failing Rush, pursue claims. See Commonwealth v. 576 Pa. (2003) McGill, 838 A.2d (citing Commonwealth v. (2003) (when Pa. court is faced with claim, “layered” only ineffectiveness viable ineffectiveness claim counsel, is that related to most recent coun- appellate sel)).
We set forth the standard for preserving “lay such ered” ineffectiveness claims and Rush: McGill
In preserve ineffectiveness, order to a claim of petitioner a must “plead, his PCRA petition,” appellate counsel for failing was ineffective to raise all prior counsel’s ineffec- tiveness. Additionally, petitioner must “present argument on, i.e. develop each prong appellate Pierce test” as to “Then, then, counsel’s deficient representation. only petitioner has the preserved layered claim of ineffective- review; then, then, ness for the court to can only court proceed to determine whether the petitioner has proved layered claim.” (citations
Rush, omitted); McGill, at 656 and footnote see also *12 at 1021-23.
The “Pierce test” requires appellant
prove,
to
with
(1)
to
respect
appellate counsel’s performance, that:
the un
claim
derlying
of trial counsel’s ineffectiveness has arguable
(2)
merit;9
appellate counsel had no reasonable basis for
prong
9. An
requires appellant
assessment of this
to establish each Pierce
prong
respect
performance;
with
to trial counsel’s
failure to establish
any
prongs concerning
one of the
trial counsel will defeat the entire
Basemore,
258,
717,
claim. Commonwealth v.
560 Pa.
744 A.2d
738 n.
(2000)
Rollins,
435,
(citing
23
Commonwealth v.
Pa.
738 A.2d
(1999)).
prong
containing
This "merit”
has been referred to as
(3)
claim;
failing
pursue
but for appellate counsel’s
ineffectiveness, the
on
result
direct appeal would have dif-
McGill,
fered. See
at 1022-23. This “performance
preju-
dice” test was first
enunciated
Strickland v. Washington,
(1984),
466 U.S.
104 S.Ct.
tution. Failure to satisfy any prong test will defeat an Basemore, ineffectiveness claim. Rollins, at 738 n. 23 (citing 441) (ordinarily, post conviction claim of ineffective assis- tance of counsel may be denied showing petitioner’s evi- dence claim). fails to meet single one of prongs three
Appellant has met the pleading requirement with re spect issues, to his remaining as he alleges the ineffectiveness of both trial and appellate counsel. In his statement of questions presented, appellant inserts boilerplate ineffective issues, ness claims into many of his all asserting prior counsel were ineffective for failing to litigate the issue. Appellant also general includes a boilerplate assertion of “all prior counsel’s” ineffectiveness as a separate issue. He presents argument concerning underlying claims of trial counsel’s ineffective ness, thus satisfying the first prong Pierce respect appellate However, counsel. he fails to develop the remaining two prongs concerning appellate thus, counsel’s stewardship; he has failed preserve his claims of appellate counsel’s ineffectiveness as required by McGill.
Where the has established the arguable mer it of his claim underlying of trial ineffectiveness, counsel’s may remand be warranted for the opportunity to correct his deficient pleading of the remaining two prongs regarding appellate Rush, counsel’s ineffectiveness. at 657.
Nevertheless, there is simply no need to remand PCRA petition when the petitioner has not earned his Pierce burden relation to the underlying claim of trial counsel’s ineffectiveness, since even if the petitioner were able to argument—trial "nested” performance counsel’s be must addressed in order to determine appellate whether counsel failing was ineffective for argue Rush, trial counsel’s ineffectiveness. See at 656. *13 claim, in of his support argument layered a perfectly
craft relief. entitle him to not claim would petitioner’s has not Thus, appellant if Id., need not remand we at 657-58. of trial claims underlying his of proving his burden met ineffectiveness. counsel’s his below, not demonstrated has appellant
As discussed claims. Since underlying these any of to relief on entitlement counsel’s ineffec- claims of trial underlying appellant’s all of ineffectiveness fail, counsel’s appellate claims of his tiveness Therefore, McGill, at 1023. as well. necessarily defeated are remaining develop him to in order for not remand need we counsel. See appellate to respect Pierce with prongs two McGill, Rush, 657-58; at 1025. failing ineffective for trial counsel was claims first Although trial. stand competency the issue of his
to raise held, the issue was hearing was competency separate no with conjunction hearing, PCRA appellant’s addressed miti- psychiatric presented should have claim that counsel his following court reviewed The PCRA evidence. gating evaluation, for an psychiatric presentence a 1985 evidence: for the to trial offense, prior 10 months conducted unrelated pro- competent offense, appellant stated was which instant there testimony that expert’s a defense sentencing; ceed to report presentence information enough not been” im- “may have appellant but competency, determine counsel; expert’s defense another ability to assist his paired but chronically psychotic, was not appellant that testimony his attorney past about talk his ability to that his disorder; defense two traumatic stress post impaired by substantial or- no appellant suffered testimony experts’ although testimony defense counsel’s ganic impairment; bargain and plea to enter a the opportunity had sentence, guilty he was appellant insisted a life receive trial; trial record. and the entire togo wanted before it and all the evidence weighed court The PCRA relevant, itas was most evaluation presentence concluded the trial; the current appellant’s in time to closest was conducted mental concerning appellant’s experts the defense opinions *14 were, less afforded ago appropriately, 12 years at trial state retained for Furthermore, had been experts these weight. trial claim that counsel evaluating appellant’s purpose the of evidence, not to mitigating presented psychiatric should have signifi- trial. Most to stand appellant’s competency evaluate the trial record of counsel and testimony defense cantly, troubled at the have been appellant may revealed while trial, any from mental suffering he not time of his was him unable to under- have rendered impairment which would See 50 Pa.C.S. proceedings. in the participate stand or 7402(a) trial he is to stand when (person incompetent § is object of pro- to understand nature or substantially unable defense). in his participate him or to own ceedings against of the PCRA court’s discretion no abuse perceive We determination; is not enti- accordingly, appellant making this tled relief. her peremp- next claims the exercised
Appellant prosecutor manner, in viola- racially discriminatory in a tory challenges 106 90 Kentucky, of Batson v. 476 U.S. S.Ct. tion (1986). claims he should have been L.Ed.2d 69 also dire, from voir *15 Draper, him. To establish Robinson’s bias the against with officer, father, to a prosecutor attempted Draper’s police show had in an led to Robinson’s participated investigation which this, prosecutor pre- convictions. When Robinson denied from Robin- testimony prosecutor sented the rebuttal trial, provided attorney son’s stated he had Robinson’s who Draper’s the name of father. false; he Appellant testimony contends this rebuttal was father never listed as a argues Draper’s Commonwealth However, argument; the record belies appellant’s witness. witness, father called as a so his name was Draper’s was never list, given not on the but rather was Commonwealth’s witness conversation, an informal during identifying to defense counsel Trial, 1/31/86, him as one of the officers. N.T. investigating Accordingly, appellant’s 1522-24. claim is meritless. Appellant prosecutor’s asserts the notes were essential to him at the hearing, during prosecutor PCRA them her because referred to testimony prepare testimony, they and used them to her and because were relevant to the issue of whether she exercised racial bias However, selecting jury. permitted appellant the PCRA court testified; notes, summary inspect prosecutor’s from which she why appellant explain summary an aid in does not insufficient prosecutor, excep- his cross-examination of the and fails to demonstrate required production tional circumstances existed which of the actual 9545(d)(2) (“No discovery, any stage proceed- § notes. Pa.C.S. ings subchapter, permitted except upon under shall be leave of this circumstances.”). showing exceptional court with a next prosecutor claims the failed to disclose to jury, or to the the full terms of co-defendant Marc appellant, and the criminal Draper’s plea agreement complete history of Renee Rucker. Draper Commonwealth witness received life in exchange pleading guilty degree sentence for to second murder and agreeing testify against appellant. Appellant there other charges against Draper arising contends were from a he previous robbery had committed with agreed to nolle pros exchange which Commonwealth meritless; testimony. This contention is other than his assertion, appellant own no for this provides support allega- tion. The record Draper’s reveals full plea agreement was record, the trial Draper read into acknowledged was the Trial, 1/22/86, full extent of his N.T. agreement. at 661-63. Appellant’s allegation uncorroborated does not entitle him to relief. Renee
Appellant contends Rucker was not cross- concerning examined her prior crimen convictions under falsi a different name. Appellant points the fact there were two listings for “Renee Rucker” in Philadelphia County’s data base, listing and one also had an alias and included four theft However, convictions. appellant acknowledges these list two numbers, ings photo have different identification and he fails they Thus, are actually person. show same appellant’s claim fails. next issue focuses on his identification by the *16 wife, trial,
victim’s Mamie Norwood. At Mrs. Norwood testi- fied she had seen on her appellant porch night front the of the that, trial, murder. Appellant prior contends to there was no him; however, indication this identify witness could during trial preparation, prosecutor the was informed witness recognized appellant as the man on porch, her after seeing his in picture three or four newspapers weeks before trial and then him at the seeing preliminary hearing. Appellant argues the trial court granted should have a mistrial because the defense not of the was notified witness’s to ability identify appellant, thereby and was deprived opportunity to file suppression motion. discovery relief from seeking [a]
“A defendant in to be entitled to prejudice order must demonstrate violation Jones, 542 Pa. trial.” a new Commonwealth omitted). (1995) (citation It from sidebar appears ability that the to concerning this issue witness’s discussion until not known to the Commonwealth identify appellant was trial, Mrs. Norwood mentioned one month before when prosecutor being by in the interviewed paper while photos Trial, 1/14/86, at 191-94. for trial. See N.T. in preparation reveals she never asked testimony trial The witness’s and she did not come forward porch, the man on her identify until after newspaper photo recognition appellant’s with her Id., at 129-30. There is no indica hearing. the preliminary deliberately by the Com tion this information was withheld monwealth, prejudiced demonstrated he was appellant nor has suppression testimony. able to move for of this being by the conclusion this identifica in the record warrants Nothing any or other means by suggestive obtained means tion was therefore, a rights; constitutional appellant’s violation trial Finally, have been futile. suppress motion to would concerning cross-examined Mrs. Norwood vigorously counsel her porch, under she saw the man on her the conditions which him, subsequent and her identifica inability identify initial id., 117-132, 141-16. person. as that See tion of he is entitled to has not demonstrated Accordingly, appellant relief. allegedly focus on letters he next two issues effort to prison, an convince Draper to Marc while
wrote letters Appellant argues at trial. these were to lie Draper they into at trial because con- admitted evidence improperly drug activity appellant’s references to and to tained prejudicial argues He further the trial court should have incarceration. questions upon prosecutor’s a mistrial based granted having identified the letters as handwriting expert who by appellant. been written that the letters con- argument respect appellant’s
With acts, made prior references to bad prejudicial tained to drug activity that the references were clear to the *17 to in order “story” by appellant concocted merely part murder; testified Draper from the Marc himself disassociate Trial, 1/22/86, 732, 739, fiction. N.T. story clearly this was not redact- number and address were Appellant’s prison letters, no but the trial court ruled there was ed from the on the this information appellant by leaving to prejudice that the letters, [appel- indicates testimony clearly since “the time; being the inference that he at the prison was lant] ” Id., Appellant’s at 756-57. trial on this case.... awaiting prison he was state that the address revealed argument jail, serving prior time for a county instead of and thus was murder, presented no con- is baseless. There was evidence conviction, on the and the address appellant’s prior cerning facility or indicate it was letters did not name the correctional therefore, jury contention that the prison; appellant’s a state inference is meritless. drew this the to the argues prosecutor’s questions him he had tried expert prejudiced by suggesting
handwriting he to the handwriting provided samples to his when disguise to response The were asked expert. prosecutor’s questions to attempts he is able to detect expert’s description the how prosecutor the disguise handwriting; alter or one’s when if could had expert asked ascertain whether objected defense counsel attempted disguise writing, The objection. expert the trial court sustained the never and the was later prosecutor’s questions, answered not constitute evidence. questions instructed counsel’s do LaCava, 2/3/86, 1790. See Commonwealth Trial, N.T. (1995) (it 542 Pa. is well established evidence; juries and statements are not attorney’s questions instructions). According trial court’s presumed are follow prejudice appellant. no ly, perceive we challenge propri next three issues guilt ety prosecutor during of statements made to a trial on the basis of is entitled new phase. Appellant misconduct the unavoidable effect of prosecutorial only where jurors, comments form- prosecutor’s prejudice *18 in their ing hostility appellant, minds fixed bias and toward objec- that they incapable weighing such were the evidence Id., at tively rendering prosecu- and true verdict. 281. The isolation, tor’s comments cannot be in but must be viewed in in they considered the context which were made. Common- (1992). wealth v. 538 Pa. Carpenter, 617 A.2d redirect examination of defense counsel appellant, On fall, college asked whether he to return to eligible if planning prosecutor, and he had been to return. The to knowing questioning open this line of would the door evidence, character her to rebut this permit which would convictions, testimony stat appellant’s prior with evidence ed, know, “Objection, your may you honor. You if see at we sidebar, he, indeed, I think an area that opening up counsel is Trial, 1/30/86, N.T. regret.” Appellant argues will prejudiced jurors this remark him because the could have inferred there other him damaging against evidence which court, however, not trial they were allowed to consider. The objection admonishing after and overruling prosecutor’s her not to “characterize is anything about what the defense id., doing,” immediately jurors reminded the the remarks counsel and them to disregard were evidence instructed Id., the remark. at 1397. presumed Since the is have instructions, LaCava, 231, appel followed the trial court’s lant has not demonstrated counsel’s remark him. prejudiced next prosecutor impermissibly claims During commented on his failure to call certain witnesses. stated: closing, prosecutor
Now, ladies and this is not a case of gentlemen, case [trial Bear in mind that the against Commonwealth. counsel] rely defendant’s resources do not on his attor- exclusively case, and ney. The case is the defendant’s defendant’s event, whatever the has or about this and knows defendant truthful, opportunity, through it were he has his his if witnesses, witnesses, attorney, bring subpoena in do examination to out bring needs to be done on cross what truth. added). Trial, 2/3/86, (emphasis N.T. at 1660-61 arguments A to defense prosecutor may respond logical vigor. free to her case with force and present is Koehler, 558 Pa. Commonwealth statements, (1999). The viewed the context prosecutor’s made, response were to defense they proper which were that the closing argument counsel’s assertion defense the “tremendous resources” the prosecution does not have does:
Generally, you say I would come before what Terrence *19 has in his defense is The Common- [trial counsel]. Williams wealth, burden, amount of as is their has tremendous it in they resources that have available to order to build that I case. Terrence Williams does not have access. do not have access to those resource[s]---- Id., prosecutor’s at 1627-28. The comments fair re- were and claim fails. sponse, appellant’s next the prosecutor, during closing, claims her the
impermissibly expressed personal opinion concerning credibility testimony: of his deal, were, Draper’s as it is not one of the happiest
Mar[c] don’t, moments of a prosecutor. generally Prosecutors murderers; however, like to make I speaking, deals with think that a distinction can be made persons between two act, commit the same one who atrocious of whom does can, act, he after the everything committing right he can’t the to life wrong. Obviously, bring victim back but he necessary bring responsible can do what is all justice in this case. Compare person with who atrocious, murderous, commits malicious acts and then the of his spends days lying, covering up, suborning rest to make as I perjury, trying things they’re seem not. think a distinction can be made in such a case. added).
Id., context, at 1695 in these (emphasis Viewed not an opinion concerning appellant’s statements were credi- 80 the
bility; prosecutor contrasting the evidence witness, Draper, appellant. Marc that of Commonwealth’s trial, and defense coun- Throughout during closing argument, therefore, Draper’s credibility; prosecu- sel had attacked fair v. response. tor’s comments were See Commonwealth (2002) (as Miller, 623, 504, long Pa. 516 as 572 com- personal opinions, may does not assert she prosecutor credibility, especially ment on witness’s when witness’s credi- defense). Further, bility previously has been attacked actions after the mur- prosecutor summarizing appellant’s der; appellant’s attempts escape responsibility evidence had been at trial. The use of the presented prosecutor’s think,” context, “I not transform her phrase viewed does comparison Draper personal opinion. into Therefore, is baseless. appellant’s argument
Finally, claims regarding guilt phase, appellant an jury regarding Draper’s liability instruction as accom due plice appellant’s process rights violated because did defense, incorporate appellant’s implying alibi thus he had reviewing allegation admitted the murder. In an complicity instruction, an charge incorrect must be viewed as Saranchak, v. A.2d a whole. Commonwealth 544 Pa. (1996). if Jury upheld they instructions will be adequately accurately reflect the and are sufficient to law guide jury properly its deliberations. Commonwealth (1996). Here, 543 Pa. Thompson, A.2d *20 trial court the jury: instructed so in the Commonwealth witness was involved
[W]hen crime that he an has charged accomplice, testimony was to be certain judged by precautionary rules.
* * * In criminal Draper’s view of the evidence of Marc involve- ment, must him as an in the crimes you regard accomplice testimony. and rules to his These charged apply special testimony: are the rules that special apply accomplice First, testimony should of an you accomplice view with it from a corrupt polluted disfavor because comes and source.... Trial, 2/3/86, at entirety,
N.T. 1773-74. Viewed its adequately accurately conveyed jury instruction and to the it Draper’s testimony coming corrupt should view as from a contends, source; not, imply as that because appellant did Draper appellant. considered an so was Fur- accomplice, thermore, just had been instructed regarding appel- lant’s alibi defense: “The defendant’s evidence that he evidence, either itself or other present, together may guilt your be sufficient to raise a reasonable doubt of his Id., at claim Accordingly, appellant’s mind.” is merit- less. respect penalty phase, appellant
With to the first argues trial counsel failing investigate was ineffective present psychiatric evidence. mitigating Specifically, ap pellant only upon contends counsel relied unstable appellant’s witnesses, mother to suggest potential mitigation and counsel never investigated appellant’s records for mental health miti claims, gation evidence. Appellant had trial counsel properly investigated, he would have lay discovered numerous wit nesses would have testified concerning appellant’s who abusive upbringing dysfunctional he family history; further claims counsel should have utilized the 1985 presentence psychiatric Camiel, evaluation of Dr. Edwin health appellant’s prison records, and from transcripts appellant’s previous murder sources, contends, trial. Based on these trial coun sel “[a]ppellant’s would have learned adult mental {e.g., illness delusions, his psychosis, anxiety, paranoia and schizophrenic condition) all resulted from his [post traumatic stress disor der], which itself resulted from upbringing.” Ap his abusive Brief, pellant’s at 29. Court has declined to find counsel
“[T]his ineffective for failing proffer from a mental health testimony professional to establish a mitigating circumstance where there is no that such ... showing testimony would have been beneficial in of altering terms the outcome of the penalty phase hearing.” Howard, Commonwealth v. 553 Pa.
(1998). Appellant heavy has not met this burden. *21 three mental presented hearing, appellant
At the PCRA that, had seen Dr. Camiel’s they health testified experts who evaluation, investiga- further would have conducted they unclear, It how- mental health. is concerning appellant’s tion im- ever, mental concerning any beneficial information what surfaced, given at the time of the murder would have pairment past appellant any statement “denied the evaluation’s Camiel, M.D., P. history.” Report Edwin psychiatric 2/27/85, very apparent acknowledging appellant’s at 2. While a concern that was expressing appellant mental and agitation treatment, the necessitating disorder developing psychotic notes, psychi- the first evaluation is evidence clearly “[t]his Id., Thus, at 3. based on atric illness in this Defendant....” evaluation, mental alleged appellant’s the information the incarceration; gives the no surfaced after his evaluation illness mur- at the time of the any impairment indication of mental failing ineffective for trial counsel was not Accordingly, der. rely on this report. that, at the health also testified experts The three mental murder, extreme acting under appellant time of the was criminal- capacity appreciate mental disturbance and conform it to the ity requirements of his conduct or to Hearing, N.T. PCRA substantially impaired. See law 4/9/98, 375, 425; 4/13/98, 4/8/98, 106; at 560. How- court, ever, in context of weighing testimony this PCRA the record evidence before proceeding, along the entire it, same outweighed by testimony from these concluded was people “directed his hurt onto other experts in a respond that he to stressful situations likely consequences.” manner to the PCRA Court regard without 1/13/99, noted the at 14. The PCRA court further Opinion, the killing, and carried out appellant planned manner which murder up by to cover subsequent attempts as well as his Id., no at 15. body. Accordingly, perceive we burning by weighing the PCRA court abuse of discretion evidence, determination. not disturb court’s we will Abu-Jamal, Pa. A.2d See Commonwealth (1998) (this credibility 93-94 is bound PCRA court’s Court *22 record for those deter- support there is determinations where minations). the also hearing, appellant presented
At the PCRA concerning members family of friends and testimony several childhood, should have called claiming counsel his abusive It does phase. appear the during penalty these witnesses that the three penalty proceedings record of the from the compelling;11 were not presented counsel mitigation witnesses his however, hearing it was counsel testified at the PCRA first appellant’s utilized mitigation witnesses impression this, as at willing cooperate trial not witnesses murder were 4/17/98, 767, 771-72. Hearing, N.T. PCRA his second. See testified, re presentence had he reviewed Counsel also trials, not consid he would have appellant’s prior from ports rather, his tactic family dysfunction; ered the issues athlete, and a a well-liked promising as present appellant man, charges were an extreme for whom these outgoing young Id., that to further testified aberration. 765. Counsel concerned he became guilt phase, the end of wards I cooperation “I Mr. for [sic] because had asked Williams Id., testimony, this upon it.” at 791. Based getting wasn’t not met his burden appellant court concluded had the PCRA during evidence presented had counsel such demonstrating, appel probability there was a reasonable penalty phase, a life sentence. We will disturb lant would have received determination, no abuse and find credibility the PCRA court’s Accordingly, the court in this instance. by of discretion relief on this claim.12 is not entitled appellant mother, concerning appellant's testified The were: who 11. witnesses accomplishments only appellant's appellant's athletic and mentioned briefly during by prosecutor; upbringing abusive cross-examination good girlfriend, appellant a father to their appellant's who testified sweet, cousin, person; appellant’s daughter honest infant references, narrative, rambling peppered gave with Biblical who being getting into pressured his teammates and about fights. brief, Taylor, reply appellant points to Williams v. 529 U.S. In his (2000), L.Ed.2d 389 in which the United 120 S.Ct. 146 failing Supreme to conduct States Court found counsel ineffective mitigating Appel- investigation potential circumstances. sufficient 84 jury’s
The next three issues concern the finding ap history had a of violent felonies.” pellant “significant 9711(d)(9). § this cir Appellant argues aggravating Pa.C.S. face; its he unconstitutionally vague cumstance is on further prior contends the convictions on which was based infirm, constitutionally prosecutor case were and that of one of concerning false evidence facts these presented convictions. rejected the repeatedly argument
This Court has
9711(d)(9)
vague. See Commonwealth
unconstitutionally
§
is
Hill,
v.
(1995);
v.
Commonwealth
Pa.
Rivers,
(1994);
Commonwealth
Pa.
The
this
prior
support
aggravating
convictions used
for
appellant’s
robbery
circumstance were
1982 conviction
and
and his 1984 murder conviction.
burglary,
Appellant now
preparation
lant
in that case was more
contends counsel's
extensive
counsel,
appellant's
high
than that of
and the
Court still found counsel’s
However,
performance
prejudicial.
mitigating
and
the
evi-
deficient
nightmarish
signifi-
dence of the defendant's
childhood in Williams was
case;
cantly
appellant’s
neglect
different than that in
the
and abuse in
require
parents’
extensive
Williams
so
as
incarceration.
Furthermore,
concluded, appel-
as the PCRA court and this Court have
demonstrating
lant has not met his burden of
there was reasonable
probability
presentation
of this evidence would have resulted in a
penalty. Appellant
significant
life sentence instead of the death
had a
convictions;
history
felony
of violent
this was not his first murder
Therefore,
reject appellant's attempt
analogize
we
conviction.
Williams,
(mitigation
v.
Williams. See Commonwealth
J-204-2002
evi-
probability
changing
dence would not have had reasonable
outcome
proceedings,
replete
appel-
where
were
records
indications of
aggressive history).
lant’s violent and
Florida,
242,
distinguish
Appellant attempts
v.
428 U.S.
Proffitt
relied;
(1976),
S.Ct.
Furthermore, support there is no claim that appellant’s prosecutor testimony concerning introduced false the un circumstances of the 1982 and derlying robbery burglary. claims Specifically, appellant testimony concerning holding a rifle to the neck of one firing victim and over the head of the other victim was false because his demurrer to the weapon possession However, in that case charge was sustained. claim; appellant’s record belies the Superior opinion Court’s appeal on direct reveals appellant brandished the rifle and Id., fired it to intimidate the 3. Accordingly, victims. claim appellant’s is baseless.14 next claims prosecutor in improperly
jected personal opinion her regarding propriety penalty death into her closing argument during penalty terrorized, robbed, blundered, killed, phase: “He he he he kill, and he continued to I tell you, gentlemen, ladies and Williams, penalty the death doesn’t to Terrance I apply *24 if Trial, 2/3/86, don’t know apply who it would to.” N.T. at 1876 added). (emphasis case, the
“During sentencing phase of a a capital prosecutor must be afforded reasonable latitude in arguing to the position jury may oratorical flair employ [her] [she] in in arguing favor of the death penalty.” Commonwealth v. Stokes, 299, 226, (2003) (internal 576 Pa. 839 A.2d 231-32 omitted). Furthermore, citations the the penalty phase, “[a]t (cid:127) prosecutor has more latitude in presenting argument since the Further, aggravating applicable 14. even if this circumstance was not circumstance, appellant, jury aggravating the found another existed, 9711(d)(6), found; mitigating § and no circumstances were 8, penalty supra. would still have been death. See n.
86 applicable.” no Common longer of innocence is presumption (1998). 786, Pa. 790 Rompilla, wealth statement, the under- of the entire in the context Viewed nothing more complains was lined comment of which flair; summarized evidence prosecutor than oratorical evidence, from that argued, criminal acts and appellant’s Accordingly, a death sentence. jury impose should claim is meritless. this jury he was entitled to have argues next
Appellant
“life
because
parole,”
that “life” means
without
instructed
prison
impression
left the
with the
Draper’s testimony
parole.15
be
for
eligible
a life sentence would
serving
er
plead guilty
he first
agreed
testified that when
Draper
sentence,
he
impression
he
under the
for a life
exchange
appel
if
against
he testified
eligible
parole
later be
would
1/23/86,
contends
Trial,
at
lant. N.T.
784-86.
prose
information was never corrected
incorrect
“[t]his
Brief,
...,”
at
cutor,
counsel or the court
defense
however,
this claim.
the same
76;
During
the record belies
misconcep
former
Draper’s
line of
revealed
questioning which
“But it
queried,
defense counsel
agreement,
tion about his plea
part
your agree
that that’s not
understanding
is
now
your
1/23/86,
Trial,
“Yes.” N.T.
Draper responded,
ment?” and
closing, while
during
counsel also stated
786-87. Defense
sentence,
that appellant
of a life
imposition
for the
arguing
father, because he will
being
the fruits of
enjoy
would “never
Trial, 2/3/86, at 1880.
jail.”
N.T.
entire life
spend his
that he
Furthermore,
Draper’s testimony
clear from
it was
testimony
because of his
paroled
he
later be
might
believed
no similar
cooperation
there was
against appellant;
where the defen-
Although
is mandated
cases
such instruction
requests
dangerousness
and defense counsel
future
is
issue
dant's
Carolina,
instruction,
U.S.
Simmons v. South
such
see
(1994);
Christy, 540 Pa.
Commonwealth v.
S.Ct.
129 L.Ed.2d
(1995),
years after
was decided four
Appellant
discrimination,
a
citing
study
racial
conducted
improper
Baldus and
which
by
George
Professors David
Woodworth
of an African-American
being
concluded
odds
defendant
to death in
are more than four times
Philadelphia
sentenced
Baldus,
than for other defendants.
et
greater
See David C.
al.,
Penalty
Racial Discrimination and the Death
in the
Overview,
Era: An
Empirical
Legal
Post-Furman
ivith
Findings
Philadelphia,
Recent
83 Cornell L. Rev. 1638
from
(1998).
also relies on the “McMahon
a
Appellant
tape,”
in
a
videotape
Philadelphia
attorney,
which
assistant district
McMahon,
of racial
in
policy
Jack
revealed
discrimination
of that
jury
by
selection members
office. See Commonwealth
Wharton,
(2002).
85,
v.
571 Pa.
This repeatedly rejected arguments Court has similar on the basis that the mere existence of the does not tape Rollins, prejudice particular demonstrate case. at 443 n. 10; Marshall, 545, see also Commonwealth v. 570 Pa. 810 A.2d 1211, (2002); Lark, 1228-29 Commonwealth 560 Pa. (2000). 746 A.2d 588-89 Similarly, rejected we have speculative arguments based the study. on See Common Morris, (2003) wealth v. 573 Pa. (citing Marshall, Lark, supra; supra). Although appellant discusses study the Baldus and the McMahon tape length, he fails to demonstrate how these alleged discriminatory trends affected selection his case. He attempts provide statisti cal of the prosecutor’s practice evidence routine of striking but, jury panels, given African-Americans from the actual jury African-American, composition this case was 41.6% he fails to show discrimination prosecutor. As does a link provide between the and the facts and study/tape- case, particular circumstances of his his claim does not war relief. rant next challenges this Court’s re- proportionality
view of his sentence on direct appeal, essentially claiming *26 Pennsylvania the Administrative Office of compiled by
data A argument is unreliable and flawed. similar Courts Gribble, 62, in Pa. A.2d addressed v. 550 703 Commonwealth (1997) 426, or in (finding nothing arbitrary capricious 440-41 scheme), rejected; appellant pres- proportionality review for this issue. Fur- compelling ents no reason us revisit thermore, to demonstrate error appellant any specific fails case. application from this Court’s of the data to his resulting claim is meritless. Accordingly, this all Finally, claims the cumulative effect of However, him to as this alleged the errors entitles relief. stated, repeatedly may has “no number claims Court failed they individually.” attain merit if could not do so collectively Williams, 716, v. 532 Pa. 722 Commonwealth (1992) in we affirm the (emphasis original). Accordingly, relief; Prothonotary court’s denial of of the Su PCRA directed to transmit record of preme complete Court is 9711(i). Governor, § pursuant this case to the to 42 Pa.C.S. relinquished. affirmed. Jurisdiction Order BAER files a concurring opinion. Justice files a dissenting opinion. Justice NIGRO dissenting flies a opinion. Justice SAYLOR BAER concurring. Justice separately only my jury
I to note view that instruc write here, tions, given language such'as those which mirror the 9711(c)(l)(iv) Pennsylvania Penalty of the Death Stat Section ute, 9711(c)(l)(iv), impermissibly require § 42 infer a Pa.C.S. unani any mitigating ment that circumstance must be found Mills v. mously by Maryland, violation of U.S. (1988).1 108 S.Ct. 100 L.Ed.2d (c)( )(iv) provides: 1. Section 9711 jury unanimously verdict must be a sentence of death if the [T]he (d) aggravating specified finds at least one circumstance in subsection mitigating jury unanimously circumstance or if the finds one no aggravating outweigh any mitigating or more circumstances which
Nevertheless,
respects
in all
join
majority opinion
I
First,
disposes
majority properly
reasons.
several
claim
that such
theory, noting
on a waiver
assertion
Second,
majority
appeal.
on direct
litigated
previously
ruling
recent
Court’s
Supreme
notes the United States
406, 124
2504, 159
Banks,
02-1608,
No.
542 U.S.
S.Ct.
Beard v.
(2004),
not apply
makes it clear that Mills does
L.Ed.2d 494
this,
cases,
prior
decided
retroactively to
such as
were
that, on
*27
denied,
1038,
1500,
27,
(1989),
110
A.2d
31
cert.
494 U.S.
S.Ct.
(1990),
that the
of the death
holding
language
Justice NIGRO
dissent,
Saylor
Appellant
I
as I
has
agree with Justice
failing
that his trial-counsel
ineffective for
demonstrated
mitigation,
adequately investigate
present
to
evidence
Appellant’s
evidence of
mental health and abusive
including
however,
childhood,
penalty phase hearing. Appellant,
at his
only
boilerplate
appellate
presented
allegation
has
failing
counsel
ineffective for
to raise trial counsel’s
Thus,
notes,
majority
in this
as the
regard.
ineffectiveness
an
claim
preserved
arising
has not
ineffectiveness
deficient
and such a
appellate
performance
from
counsel’s
Op.
claim the
one on
relief
be
See
only
may
granted.
is
which
circumstances, would,
68-70,
I
First,
majority’s assignment
Appel
I
disagree with
of a
racial discrimination in
selection
lant’s claim of
established in Common
deficiency,
requirements
based on the
(1993),
A.2d 1176
which
wealth v.
534 Pa.
Spence,
of a
under
to assertion
violation
interposes
prerequisite
as
90 L.Ed.2d
Kentucky,
Batson v.
476 U.S.
S.Ct.
(1986),
identifying
a record
obligation
present
Commonwealth,
by
race of the
stricken
venirepersons
to the
jurors acceptable
race of
Commonwealth
prospective
defense,
composition
but stricken
and the racial
246-47,
at 1182.1
selected.
id. at
jury finally
See
criminal
have
seeking
those
relief from
convictions
Although
perhaps
these
frequently
difficulty meeting
requirements,
had
*28
thorough
on the
preservation
frequently dependent
because
is
counsel,
court
trial
in this
case the trial
particular
ness of
own,
each of
independent
concerning
maintained its
record
factors,
the post-
it read into the record of
these
which
Therefore,
that
assertion
proceedings.2
conviction
observed,
recently
Court of
1. As the Court has
the United States
Spence requirements
Appeals
the Third
deemed the
to be
Circuit has
law,
application
applied in some
an
of federal
at least as
unreasonable
Uderra,
492, 508-12,
580 Pa.
862
circumstances. See Commonwealth v.
74, 84-86,
2363725,
(2004)
Holloway
(citing
v.
2004 WL
at *6-7
A.2d
Horn,
707,
(3d Cir.2004),
Horn, Holloway
cert.
v.
355 F.3d
728-29
410,
denied, - U.S. -,
(2004)).
125 S.Ct.
91 14 to peremptory challenges used of 16 the Commonwealth one, majority Americans is not a bald as the strike African 515, indicates, 73-75, at but Majority Opinion, at 863 A.2d see in the developed an matter of record case as undisputed is reason, judge. For the same by determined PCRA/trial information is before the required squarely all of the other supra See note Court. contemporaneous challenge
At least in the context of an
my
it is
that
in-progress jury
proceeding,
position
an
selection
(or
14
peremptory challenges
a
direction of
of 16
prosecutor’s
of the total
Afri-
percent
employed)
almost 90
strikes
toward
venirepersons,
jury pool comprised
can American
out of a
heritage,
than 40
such racial
percent persons having
less
case
prima
should be deemed sufficient to make out
facie
Batson,
race-
implicating
under
thus
an
explanation
(if
for the
from the
challenges
any)
prosecutor.
neutral bases
Batson,
96,
106
at 1723
generally
See
U.S.
S.Ct.
a criminal
(explaining
rely upon
defendant is entitled
the fact that
constitute a
selec-
“peremptory challenges
are of a
practice
permits
tion
‘those
discriminate who
”);
(observ-
97,
mind to discriminate.’
id.
venirepersons April African and three Americans. See at 643. event, prosecutor provided explanations the race-neutral the to the that her proceedings degree memory permitted, PCRA categorical perni- as her denial of in the engagement as well N.T., 16, 1998, April cious of discrimination. See practice it would have been for the Although preferable 648-732. specific findings court to render more factual PCRA claim, particularly given conclusions of law on the Batson the strikes, out of the it is that the pattern emerging apparent court acted in its as fact finder to capacity accept prosecu- testimony concerning tor’s on issue her motiva- ultiipate tions.
A
Appel
second area of difference involves the review of
9711(d)(6)
claim
aggravating
lant’s
that
factor
Section
penalty
(killing
during
perpe
the death
statute
committed
felony)
improperly applied
tration of a
to him because he
been
on the
of the trial court’s
may have
convicted
basis
accomplice liability
instruction as to
rather than as the actual
75-76,
Majority Opinion,
killer.
Moreover,
separately
has
majority
as the
Court
in-perpetration-of-a-felony
aggravator
that
determined
first-degree
to one
is
of
murder
apply
does not
who
convicted
Lassiter,
v.
See
554
Commonwealth
an
merely
accomplice.
as
(“[Section] 9711(d)(6)
(1998)
586, 595,
Pa.
662
accomplice
not be
to an
who did not ‘commit’
may
applied
bringing
completion
finishing
in the sense of
it to
or
killing
it.”).4
however,
a
deprived
of the benefit of
Appellant,
appeal by
in this
in his direct
this
regard
determination
of
cognize rudimentary aspects
Court’s failure to
of the law
in the
accomplice liability
potential
jurors’
and its
role
deter
mination of
of
murder.
In the
Appellant’s guilt
first-degree,
apparent,
face of
court error
that
is so
I have
appellate
difficulty
application
previous
substantial
with
bar of
as I
that such
is in tension
litigation,
application
believe
that
obligation
the courts’ constitutional
to assure
the writ
instruction).
(general accomplice liability
accomplice
The
1768-70
charge
liability
presumably was issued at the Commonwealth’s instance
precisely
possibility
jurors might
for the
or
to account
that one more
give
some credence to the defense evidence
the effect
that
company
left the
of the victim at a time when he was unharmed but
See,
N.T.,
by
Hopkins
Draper.
e.g.,
under
Michael
restraint
and Marc
27, 1986,
January
at 1182-84.
Although
plurality opinion,
agreed
a
Lassiter is
six Justices
that a
prosecution
liability
accomplice
support
for murder based on
will not
9711(d)(6).
aggravating
the use of
circumstance set forth in Section
Lassiter,
661;
599-600,
See
habeas remains corpus § 14.5 to counsel’s the ineffectiveness claim relative
Regarding
in the
adequate mitigation
failure to
and adduce
investigate
are
established.
penalty phase,
governing
standards
well
are
to conduct
capital
obliged
In
defense counsel
general,
or reach reasonable decisions
investigations
reasonable
Strickland
See
investigation unnecessary.
make a
particular
2052, 2066,
668, 691,
Washington,
U.S.
S.Ct.
Basemore,
Commonwealth v.
(1984);
Pa.
L.Ed.2d 674
*31
(2000).
717,
the penalty
744 A.2d
735
In the context of
case,
duty
thoroughly
of a
counsel has a
to
phase
capital
Taylor,
see Williams
investigate
background,
a defendant’s
1495, 1515,
362, 396,
389
529
120 S.Ct.
146 L.Ed.2d
U.S.
(2000),
reasonably
to “discover all
including
obligation
any aggra
to rebut
mitigating
available
evidence and evidence
”
prosecutor.’
be introduced
vating
may
evidence
Smith,
510, 525,
2527, 2537,
Wiggins v.
123
156
539 U.S.
S.Ct.
Appoint
(2003)
ABA
(quoting
L.Ed.2d 471
Guidelines
Penalty
Cases,
in Death
ment and Performance
of Counsel
(1989)).6
11.4.1(C),
The reasonableness of a
p.
particular
93
counsel,
as well
investigation
upon evidence known
depends
to conduct
attorney
as evidence that
cause a reasonable
would
2538;
see id. at
526-27,
at
a further
123 S.Ct.
investigation,
however,
of an inade
strategic decisions made on the basis
to the
only
can be deemed reasonable
quate investigation
professional
judgment
supported
extent
that reasonable
significant
my analysis
5.
more
than it is to the
This issue is also
below,
my
concerning
majority's, given
position, developed
counsel's
finding
mitigation.
stewardship
jury’s
no
in connection with the
Guidelines, realizing
6.
I make
reference herein
the ABA
substantial
adopted them
basis.
that this Court has not endorsed or
on wholesale
Court, however,
Supreme
referenced these
The United States
has
articulating prevailing
Guidelines in terms of
norms for effective coun-
524-25,
See,
In
e.g., Wiggins,
U.S. at
Here, fairly plainly record shows that counsel was remiss penalty-phase investigation and preparation. see N.T., his first Although capital penalty proceeding, 24,1987, at April apparently counsel failed to meet person See ally N.T., until one week to trial. prior 6, 1986, 25, 31-33; N.T., 16, 1998, January April 755.7 Furthermore, it is undeniable that competent counsel would have reviewed records from Appellant’s other criminal pro ceedings (particularly they since in issue in the were case terms of the significant- Commonwealth’s assertion of the general See history-of-violent-felony-convictions aggravator). ly ABA 1.1, commentary (stating that “if the Guidelines any prior defendant has criminal ... history, counsel [d]efense id. 10.7, must accordingly comprehensively investigate”); com (same). Thus, mentary counsel would have become aware prior, pre-sentence investigation criminal *32 primary regard 7. practice Counsel's excuse in this centered on his of See, N.T., 6, 1986, using e.g., January associates. at 22. There is little record, however, actual, suggest in the meaningful to that there was Moreover, pre-trial preparation by Appellant's undertaken associates. I difficulty proposition capital have with the expect that lead counsel can develop relationship to the kind of trust with his client that is essential representation meeting to effective substantially without his client in commentary advance of trial. The ABA explains: Guidelines' Establishing relationship a of trust with the client is essential both to disclosing per- overcome the client's natural resistance to the often painful necessary and present penalty phase sonal facts to an effective defense, and to ensure that the client will listen to counsel's advice on important testify advisability matters such as whether to and the of a plea. ongoing, Client contact must be and include sufficient time spent prison develop rapport at the attorney a between and client. An occasional hurried interview with the client will not reveal to trial____Even prepare counsel all the facts needed to for if counsel manages right questions, to ask the good a client will not—with lawyer only reason—trust a who visits a few times before trial.... 11.4.1(C), commentary. ABA Guidelines, episode that he had a recent and indicating psychotic
record See treatment. a evaluation and psychiatric candidate N.T., 8, see also 16, 1998, 763, C-2; N.T., April Ex. April This, turn, 1998, obligation an on trigger at 81. would investigation a further into his to undertake part counsel’s testimony adduced According expert client’s mental health. hearing specifically at the PCRA that was by Appellant (and sense), capital common rejected by the PCRA court episode had a absolute history having psychotic of defendant’s Instead, occurred is investigation.8 further what ly requires his inappropriately, upon and relied apparently, that counsel involving to discount a mental assessment own N.T., 1, 1987, Notably, at 60-61.9 as Jul. professional, health be well, immediately first observed Appellant since counsel trial, mental health evidence opportunity develop fore severely observations was constrained.10 upon his 8, 1998, N.T., (testimony psychiatrist that a April at 87-88 from 8. See “absolutely" required investiga- psychotic episode tion); would have further 1998, N.T., describing April (psychologist the event as a at 373 N.T., 13, 1998, signal”); April (psychia- flag" "alerting at 549 “red and “something grossly indicating report that [was] trist wrong”); that the showed Fears, Pa. 72-73 Commonwealth v. cf. (2003) arguable (finding claim had merit where that an ineffectiveness evidence). investigate potential psychiatric See failed to trial counsel 4.1, commentary (observing "mental generally ABA Guidelines ubiquitous capital representation provi- that the health issues are so 4.1, routine”); commentary area be id. of resources should sion (“In defending capital particular, experts are essential to mental health Neurological psychiatric impairment, combined with a and cases. abuse, among persons histoiy physical are common and sexual row.”); (observing that “the violent offenses on death id. convicted of history psychological and emotional and and social defendant's mental health are often of jury’s importance vital decision at the compile phase[;] ... must extensive historical punishment [c]ounsel data, neurological thbrough physical examina- well as obtain a as tion.”). Bell, (6th Cir.1997) (finding deficient 126 F.3d Austin Cf. investigate arising capital stewardship from trial counsel’s failure to mitigating penalty phase "because he did present evidence at the any good”); accord ABA 4.1 not think that it would do Guidelines, status, ("Counsel’s while neces- own of the client's mental observations array sary, hardly expected to detect the can be to be sufficient disorder, syndrome, (e.g., post-traumatic stress fetal alcohol conditions retardation) schizophrenia, pesticide poisoning, poisoning, mental lead omitted)). (footnote importance.” critical that could be of *33 psychiatric of did not seem to be versed in the use 10. Trial counsel also interchange following from mitigation, reflected in the evidence as as hearing; the PCRA hearing at Appellant’s post-conviction adduced Evidence that, investigation such an had counsel undertaken indicated and history having Appellant life by exploring Appellant’s field, health he from the mental expert examined a defense history physical a of emotional and uncovered would have in place illness as trauma, major psychiatric chronic and and developed offenses. The evidence of the time of (and any court did render if believed PCRA hearing, credibility grounds), it on revealed findings rejecting family, in a with severely dysfunctional reared Appellant was abandonm relationships by neglect, characterized members’ vicious,12 ent,11 often and routine violence that was Q: you paranoid have a delusional Do know what means to system? definition, Uhm, today give you working I can't no. A: Q: psychosis you what is? Do know case, Today A: vis-á-vis this no. Q: sorry. I’m A: No. # & & Q: impulsivity post- you know the interaction between Do traumatic stress disorder? Objection. [PROSECUTOR]: Q: (continued) any. If enough. going That’s THE COURT: I'm to sustain it. That’s enough. is, position reading report, Your basic without [THE COURT]: are, things your strategy knowing what all the it was then not to proceed psychiatric testimony; correct? is that absolutely That's correct. A: Q: your strategy any today? be different Would No, A: not at all. you any But don’t know what of this means? [PCRAcounsel]: argue can You that. [THE COURT]: 13, 1998, N.T., April at 801-02. N.T., 8, 1998, See, (testimony Appellant's e.g., April of 11. at 269-70 that, observing stepfa- and a in interactions between brother ther, there”). stepfather [Appellant] "acted like wasn’t See, N.T., 8, 1998, (testimony e.g., April Appellant's mother at 195 of wall, against "picked up him and him beat his head threw she Ali”); flight steps id. at 196 and I beat him like Muhammad down ("I ....”); (descrip- [Appellant] very 197-200 would beat often id. at violence, blackjacking by Ap- interspousal including witnessed tion of (testimony concerning uncon- pellant); at 216 of a school teacher id. rages part Appellant's "huge explosions” on the mother and trolled (testimony stepfather); Appellant's her and id. at 256 between *34 9, 1998, N.T., The April sometimes at 497-98. public. See his mother Appellant’s by evidence also enlistment depicted 9, 1998, N.T., at 302-03 April into the of abuse. See pattern in sister incidents which (testimony Appellant’s describing of mother to tie the by and his brother were told Appellant Furthermore, bed, beating). sister to the in for a preparation subject multiple there evidence that was childhood, his (including sodomy) during sexual victimizations and youth placement facility, in the local and a neighborhood developed Additionally, at the hands of a teacher.13 child, of self-abuse and engaged that as a acts Appellant, See, N.T., mutilation, e.g., of in distress. people characteristic 204, 8-9,1998, at 332. April from testimony expert was also adduced
Post-conviction of develop from the mental health field to the effects witnesses a trauma described in the evidence on child’s sort of development, impact mental and emotional terms of its humiliation, shame, of feelings and generating depression, a development as as of sense helplessness, impeding well 327, self-worth, see, N.T., 8-9, 1998, 48, 325, at e.g., April of 333-34; N.T., 13, 1998, 534; of re- fostering at April see, 66, 97, 349, id. at facilitation pressed anger, e.g., and overt 49; behavior, see, e.g., of as a id. at and aggressiveness disassociative, impulsive the sorts of and yielding repressive, abused prevalent among and behaviors are responses See, N.T., 9, 1998, 388; N.T., e.g., April April children. at N.T., 13, 1998, at 543 generally April at 532. See belt, "a Appellant's older brother that the mother beat the children with board, stick, brick, switch, ....”); got in her hand a a whatever she (testimony concerning having id. at of the brother his assumed 255-56 respect younger children in the house- the role of abuser with to the hold); N.T., (testimony Appellant's April at 298 of sister shoes, brooms, sticks, belts, knives, beatings pots pans, “with chairs”); (describing scalding Appellant’s id. at 298 the intentional of mother); concerning (testimony sister id. at 492-95 of a friend describing “raging” Appellant's stepfather, the violence behavior of N.T., 13, 1998, ritual”); (testimony “family April of a as a at 620-32 neighborhood family concerning family history friend resident violence). of See, N.T., 8, 1998, (testimony Appellant’s e.g., April at of mother sodomization). describing his Kauffman, M.D., describing (testimony Ralph “whole these kind of relationships power fabric of abusive have abuser/abused”). The evidence also indi dynamics expert diagnosis the role of the abuse in as suffer cated major from mental health disorders as of the commission ing See, N.T., killing underlying e.g., his death sentence. 42-43, Kessel, 8, 1998, inter April (testimony Dr. alia, major depres chronic stress disorder and post-traumatic N.T., 9, 1998, sion, I diagnoses); April (testimony Axis *35 Dr. Patricia a clinical in Fleming, psychologist experienced of children); N.T., 13,1998, 520-21, April abused working with (Dr. Kauffman).14 my position mitigation presented It is that the evidence on substantially better case post-conviction represented review in of a life death than imposition against favor of sentence and on the solely athletie-achievement-and-community reliance that the attributes to trial participation approach majority so, view, particularly my given counsel. This is trial sub-standard, single-paragraph argument jury counsel’s to the Moreover, jurors on this latter score.15 extent that the might on their own have been inclined to the athletic- view Notably, presented contrary testimony 14. the Commonwealth no from expert examining Appellant purposes rebutting an witness for mitigation. psychiatric Compare Lopez, case of Commonwealth v. 545, 557-58, J„ (2004) (Saylor, concurring) Pa. (concurring post-conviction in the denial of relief in a in which case presented testimony expert psychiatrist, Commonwealth anof credited court, by the PCRA to the effect that the suffered from no deficits). mental health Oddly, put jury, majority to the this was not for the reasons that the (to rather, suggests Appellant), show some other side to but as follows: [Appellant’s] ability, ability physical athletic his will now work to his book, Beast, you Belly detriment. If ever heard of a The of the it vividly prison impediment, describes life. There is no because of his stature, evils, detriments, physical living all all of the all of prison the brutalities that are associated with He will have life. them to the fullest. N.T., 3, 1986, February penalty-phase closing at 1880-81. The entire argument only pages transcript. for the defense consists of four See 1877-81; (9th Woodford, Douglas id. at Cir.2003) 316 F.3d 1087-89 cf. ineffective, alia, (finding failing adequate- counsel inter ly present jury sufficiently the material that he did have "to the ain manner’’). sympathetic detailed and evidence as
achievement-and-community-participation mitigat readily could have been response the Commonwealth’s ing, of the fuller by presentation and blunted anticipated,16 that trial concerning Appellant’s life counsel never perspective uncovered. approach rejecting
I that the PCRA court’s also believe out of counsel’s failure to arising the ineffectiveness claims and mental-health present life-history investigate is a flawed one. The court offered two mitigation evidence first, that life-history mitigation: rejecting reasons for Appellant of the abuse of at the hands of some evidence at the actually put penalty before the stepfather was trial, second, cooper- failed to phase of his the court is correct that obtaining Although ate witnesses. describing in fact adduced at trial abuse testimony briefly trial developed by the evidence was not by stepfather, Rather, it purposes. for defense was adduced counsel its cross-examina- purposes during for its own Commonwealth 1856-57; mother, N.T., 3, 1986, at see Feb. tion moreover, argue trial counsel did not should be consid- in his mitigating exceptionally penalty-phase ered to be brief *36 3, 1986, N.T., Additionally, See Feb. 1877-81. summation. (and to obviously unprepared trial had not offered was counsel offer) professional from a mental health to expert testimony concerning why a concrete framework the evidence establish be considered mitigating. that was heard should argued: attorney 16. The district Now, gentlemen everyone say, and ... that was shocked I dare ladies hero, star, dismayed quarterback, and that their their their athletic presents guilty horrible crime ... the defendant an was of such a advantages. person a image person a who had all kinds of Such of essentially possible make the best life for himself would be able to him.... had people and that have loved him and cared for He supportive girlfriend child and friends and teachers and a and a gifted. suggest you up him he was people who I to looked to because gift ability permitted an athletic that would have him to He had the opportunity with life. He had the to not do whatever he wanted go college. only high but to on to He could have made finish school of his life but what did he do instead? whatever he wanted out
N.T.. Feb. 3. 1986. at 1874-76. failed Appellant court’s indication that the PCRA Regarding witnesses, trial counsel’s cooperate production to times, merely Most counsel testimony highly equivocal. was that counsel would defend Appellant’s expectation highlighted a recol having specific and denied guilt-phase vigorously,17 Moreover, concerning mitigation.18 lection discussions non-coopera his assertions of substantially qualified counsel part, tion on as follows: Appellant’s in any way prevent you Did Mr. Williams or his mother
Q: mitigation or other interviewing from either those witnesses witnesses? the guilt the extent that he had me focus on Only
A: a amount of time. Remem- you and that have certain phase to, I had he you, negotiated ber I said to had where what it, had a life sentence. wanted he could have consecutive try not he He the case. That’s what wanted. wanted Okay?
N.T., 17, 1998, at 768. the evidence indicates that April Since affirmatively impede investigation did not counsel’s I fail that counsel’s or regard, inability the relevant to see record, Contrary frequent suggestions the PCRA a 17. to counsel’s on defending against capital insistence on conviction is not an defendant's N.T., penalty-phase preparations. Compare April to omit excuse (trial ”[u]hm, testimony just I at 760 counsel’s would urge you [Appellant’s] continue to to what I—that focus was that he was uhm, in”); guilty, general went and that was the direction we being guilty. ("[Appellant] very found not id. at 779 interested ...."); ("See, very That his—that was the focus id. at 771 I'm a ("I’m say busy person.”); going this one more time. I id. at 760 negotiated plea have this man’s life. We had to where he could saved sentence.”), ("Coun- gotten a life ABA Guidelines 10.7 could have -with every stage obligation thorough indepen- sel at have an to conduct and relating guilt investigations penalty.”). both dent to the issues of trial, Notably, expressions by trial in the face of such counsel at right court reminded counsel of constitutional to be tried continuing obligations adequately prepare jury, and the of counsel N.T., 6, 1986, January perform. 25. See N.T., 17, 1998, ("I specific April at 752 don't have a recollection of having independent thought process guilt penalty.”); an relative to or *37 ("if you question ask me a relative to when we discussed id. at 756 recollection”); things, mitigation really I don't have a id. at 766 and (“No, you [my thought process], I I asked me if have a recollection of don’t.”). necessary develop commit the time unwillingness be capital accepted as to all of a case should aspects defense Similarly, Appel an excuse for his lack of preparation.19 as see, own, identify strategy lant’s failure to and raise the on (trial N.T., 17, 1998, testimony, counsel’s e.g., April “not of abuse some indicating Appellant’s history me”),20 be hardly accept he raised with can thing particularly of See avoiding finding ed as a means of ineffectiveness. 425, 460-61, Pa. Malloy, Commonwealth v. following perspective Notably, the ABA Guidelines also add concerning representation afforded here: the sort of that was Often, lawyer- consequence "difficult clients" are the of bad so-called ing—either past present. in the or initially they executed—as Some clients will insist that want to be they they spend punishment would rather die than or because believe prison; their of their lives in some clients will want to contest rest guilt present mitigation. but not It is ineffective assistance wishes, simply acquiesce usually reflect the to such which counsel distorting overwhelming feelings guilt dispair effects of rather in favor of a suicide. than a rational decision state-assisted 10.5, 10.7A(2)("The commentary; ABA ABA Guidelines Guidelines cf. regardless any investigation regarding penalty should be conducted bearing upon penalty is not to be statement the client that evidence id., ("Counsel commentary responsi- presented."); collected or cannot action, bly of different courses of advise a client about merits decisions, cannot be sure of client cannot make informed and counsel decisions, competency counsel has first the client's to make such unless investigation thorough respect phases with to both conducted a (11th case.”); Singletary, 943 F.2d 1501-02 accord Blanco Cir.1991) (finding decision trial counsel ineffective where "the ultimate mitigation] reached not to call witnesses was not a result of [in that was evaluation, investigation primarily a result of but was instead he eagerness to latch onto defendant’s statements that did not counsels' called”). any want witnesses following interchange post-conviction and trial counsel 20. The between representative: is also Q: you explore investigate any question of Did or whether there was family background regards or in Mr. Williams' to childhood abuse dysfunction? never, anything ever like that me. A: He discussed Q: you Did ask? A: Did I ask? Q: you Did ask? recall, discussion, honestly A: I don't but I’m sure I would have had you bring anything want me to out? is there N.T., 13, 1998, April at 761-62.
108 (2004) (“The a criminal defendant to upon onus is not 788 and may require of evidence be relevant identify types what such duty and Counsel’s is to discover development pursuit. efforts, including question- through pointed his own evidence client.”). of his ing not the import court’s also does diffuse opinion
The PCRA In this mitigation regard, of the mental health evidence. identification of a few dis- analysis primarily court’s entailed expert testimony, in facets of but crete weaknesses confront the overall of the testi- squarely purport failed criticizing failing For one mony. example, expert while an ultimate concerning Appellant’s ability render conclusion of requirements conform his conduct to the the law at the time offense, merely court the exten- disregarded of his PCRA witness, expert a foren- testimony Appellant’s primary sive that psychiatrist, sic the effect suffered from extreme mental or emotional disturbance at the time of his See, N.T., 8, 1998, at e.g., April generally offense. 106. See 9711(e)(2) (indicating mitigating § 42 that circum- Pa.C.S. stances shall include that “the defendant was under the influ- disturbance”). Indeed, ence of extreme mental or emotional court made no mention in opinion PCRA its Kessel, testimony psychiatrist, of the forensic Dr. Beth Julie or her conclusion circumstance at implicating mitigating 9711(e)(2), presented Section which was never to Appellant’s capital sentencing jury. position
The PCRA court’s mental health concerning mitiga- punctuated by categorical tion is its statement that evidence that tends to and impulsiveness show anti-social behavior will See, jurors not be regarded by mitigating. e.g., as PCRA at 14 Opinion, slip op. (stating Court the fact “that judgment [may Petitioner’s have and impaired that his been] response to social judgment questions indicated that he would respond impulsively in stressful situations in a manner without regard consequences for the of his actions and their impact on ... others cannot be characterized as beneficial to petition- er”). view, my This sort of reasoning, does constitute finding case, fact tied to the individual circumstances of the
104 rather, philosophical position contrary is represents but that have Supreme to decisions of the United States Court miti life-history and mental-health recognized potency see, sentencing, e.g., Wiggins, in terms of gation capital 2527; Williams, at at U.S. U.S. S.Ct. 1495,21 Guidelines, the ABA experience S.Ct. other Philadelphia legal Defender Association of service recognize in the arena which the Guidelines’ providers capital approach. *39 the connotation of position concerning
The PCRA court’s out of the evidence impulsivity arising or anti-social behavior also in that it fails to take into account highly superficial, is that, in reality any capital guilt the in trial which has been established, jurors already the are well aware that the defen aberrant, engaged impulsive, dant has in anti-social and/or Indeed, perpetrated the defendant has at least once behavior. i.e., kind, unjustified killing the ultimate act of this the of case, intent and malice. In this being specific human with moreover, put the had before the legitimately Commonwealth murder, the only Appellant’s present not conviction for but also a extensive series of other serious violent fairly felonies. there seems to me to have been little Accordingly, to for danger attempt in an establish some broader context in mitigation, precise behavior terms of which was regard, life-history trial counsel’s role. In this the role of ly evidence, available, it mitigation and mental-health where is is (which any not to to that be try excuse behavior event will (and subject punishment),22 only) to severe but rather to majority distinguishes Supreme 21. The the United States Court's deci- present in Williams on the basis that the familial abuse in Williams sion substantially parents greater based on the fact that the had been Majority Opinion incarcerated for it. See at 97 n. however, reasonably disputed, type n. 12. It cannot be that of equally deserving pun- conduct described in the evidence here was of (and/or requisite culpability part ishment treatment if the on the of the Moreover, perpetrators present), was not had intervention occurred. presence governmental does seem to me that or absence of controlling. detection intervention should be deemed and/or 10.11, ("None commentary ABA of this evidence Accord Guidelines crime, counterweight gravity should be offered as a to the but factor or factor that convey there is some attempt extin power of against governmental militates the exercise As Particularly life.23 as the General guish the defendant’s emo major of mental or recognized presence has sembly category mitigation, of see infirmity specific tional as a 9711(e)(2), pressed § of law should be hard Pa.C.S. courts effectively categorically rule them out instances which counsel.24 they have been overlooked that of the PCRA majority’s reasoning overlaps The addition, and, reason, court, fails to me. In persuade counsel of his failure to conduct further majority absolves associ- episode into a documented investigation psychotic treatment, based on the psychiatric ated recommendation psychiatric history. an indication of a See previous absence of 80-83, view, my A.2d at 519-20. In Majority Opinion however, any report- or self-recognition neither absence person a flawed but
ralher to show that the
who committed the crime is
evildoer[.]”).
generic
individual rather than a
real
Luebbers,
Cir.2002)
(8th
Simmons v.
299 F.3d
938-39
23. Accord
case,
jury’s perception
("By
the state
finished with its
the time
unpleasant. Mitigating evidence
of Simmons could not have been more
explanation
provide
for Simmons’s abhor
was essential
some sort
evidence, however,
availability
Despite
of such
none
rent behavior.
*40
ineffective.”),
presented.
attorneys’ representation was
Simmons's
denied,
1582,
923,
(2003);
538 U.S.
123 S.Ct.
ing
part
on the
of a
a
record of intervention
diagnosis
prior
health
and/or
has or
obligations
of counsel who
treatment controls
involvement, particu-
psychiatric
should have become aware of
frequently
from mental
illness
larly
suffering
since those
recognizable
psychiatrically
untreated and unaware of
remain
State,
8;
Averhart v.
note
accord
supra
illnesses. See
(Ind.1993)
924,
defense counsel
(finding capital
N.E.2d
alia,
on
ineffective,
naively placing
emphasis
for
undue
inter
produc-
of the
report
a
terms
pre-sentence
the contents of
mitigation).
tion of his
case for
own
fairly
stark
paints
In
I believe that the record
summary,
counsel, as it re-
ineffectiveness of
picture
penalty-phase
strategic
making
an
inadequate investigation
flects
an uninformed basis.
recommendations on
decisions and
Moreover,
juror
one
I am unable to conclude that at least
as
that should have been
mitigation
not have credited the
might
weight
life
and found its
presented
imprisonment
favor of
death,
I
to the
case
would
equal
least
Commonwealth’s
or,
minimum, remand for
at a
penalty hearing,
award
new
McGill,
Pa.
consistent with Commonwealth
proceedings
574,
(2003),
necessary
Finally,
availability
on the issue of
Carolina,
114 S.Ct.
under
v. South
U.S.
Simmons
(1994),
majority
I
agree
Notes
notes direct Finally, majority its issuance.2 issue, Court, in the instruction at relied upholding this appeal, 520 Pa. Frey, on our decision Commonwealth