*1 is a housing authority issue whether Agency sovereign immunity. for the purpose
865A.2d 761 Pennsylvania, Appellee, COMMONWEALTH HUGHES, Appellant. Kevin Pennsylvania. Supreme Court of 22,May Submitted 2002. Decided Dec. 2004. Reargument Denied Feb. *14 Ñolas, for Esq. Philadelphia, Hughes. Horatio Kevin
Billy Burns, Philadelphia, for Hugh Esq., Amy Zapp, Esq., J. Pennsylvania. CASTILLE, NIGRO, NEWMAN, CAPPY, C.J., BEFORE: SAYLOR, BAER, EAKIN and JJ.
OPINION Justice SAYLOR. capital dismissing an in a case from an order appeal
This is relief. Appellant’s petition post-conviction victim, a.m., at 8:15 approximately On March Graham, off near her dropped Rochelle nine-year-old through play- the school walking school. As the victim was years, who was 16 ground, Appellant, she encountered months, old, and 24 days and whom she an through knew aunt. took the Appellant nearby victim to vacant house in Philadelphia, Olive Street where he forcibly removed her underwear, pants attempted intercourse, vaginal and en- in anal gaged intercourse. then choked the victim death, gathered room, flammable material from the placed her, it top on and with a cigarette lighter, set the material At on fire. some point, Appellant lighter also used the nickname, “Peanut,” begin burning his on the ceiling room, writing “PEA.”
At 10:30 a.m. that morning, police and fire personnel re- to a sponded Inside, fire at the Olive Street address. police found the partially body victim’s burned on the lying floor with her legs spread apart. investigating Detectives the scene *15 that the tom, observed victim’s underwear and pants were area, blood running with from her vaginal and noticed the letters burned into ceiling of the room. A medical exami- nation of the victim revealed and bruising tearing of her vaginal neck, and anal areas and soft braising tissue of her but no indication of smoke inhalation. The medical examiner concluded that the injuries victim’s were consistent with the attempted penetration of her vagina and the actual pen- rectum, etration of her and that she died from manual stran- gulation.
The murder went unsolved for ten approximately months. Then, on January Appellant a 13-year-old attacked M.O., girl, grabbing her from behind and her into forcing vacant house. Appellant ordered M.O. to undress and per- sex, which, form oral after he choked her until she was unconscious. M.O. awoke in a closet a few minutes later and reported the assault police, who presented her with a photographic array included a picture Appellant. M.O. identified Appellant, and an arrest warrant was issued. Upon executing home, the warrant at Appellant’s police noticed that the word “PEANUT” had been ceiling burned into the of his bedroom. arrest,
Following his Appellant was regarding interviewed the assault of he a juvenile, M.O. As was Appellant was uncles; he also advised of his of his was by two
accompanied to the assault of confessed rights. Appellant constitutional and, that assault and the similarities between noting M.O. matter,1 investigating the detectives who were present they would Appellant of Ms. Graham advised homicide informed of being death. After him about her question like to time, initially Appellant a second rights his constitutional Later in the death. Ms. Graham’s any denied involvement interview, however, sexually that he had Appellant admitted following day, Appel The and killed Ms. Graham. assaulted homicide; regarding Graham again lant interviewed was uncles, occasion, by one of his accompanied he was on this again confessed rights, of his constitutional apprised the crimes. arrest, in connection whether he after his with
Shortly M.O., involving for charges as an adult prosecuted should be appointed psychologist, a court evaluated Appellant was noted, Wilson, Dr. inter report, PhiD. In her Wilson Clare illiterate; alia, functionally compre that: Appellant deficient; his hension, reasoning were judgment, social intelli his full scale stereotypical; concrete and thinking was and mild brain average range; in the low quotient was gence Ultimately, conclusively ruled out.2 could not be damage court. transferred to the criminal M.O. were charges involving in the moved for decertification unsuccessfully also matter, seeking charges prosecuted to have the present court. juvenile *16 and, on incompetent found Appellant was
Subsequently, unit of the to the forensic was transferred May psychiatric the initial Although Philadelphia Hospital. State from that he did not suffer indicated Appellant evaluations illness,3 a prescribed he conservative major mental was a crimes, execution of the to the similar manner of 1. addition a general proximity and within committed in the same assaults were Appellant's minute walk of home. five report, Appellant made incrimi- Although in Dr. Wilson’s not reflected 2. during the evaluation. nating regarding the case Graham statements a suffering neurosis Appellant described as from severe was and/or personality disorder. schizoid Thorazine, antipsychotic amount of an medication. Some later, Appellant’s improved, months condition and he was trial following competency hearing. found fit to stand Thereafter, suppress and his Appellant moved evidence matter, hearing statements. Prior to the on that counsel for examination, Appellant orally requested competency a further granted. Appellant by which was was evaluated Edwin Cam- iel, M.D., a psychiatrist employed Psychiatric with Unit Department the Probation of the Philadelphia Court Com- Pleas, mon the ensuing competency hearing who testified at Appellant psychiatric abnormality that showed no and ap- peared to have a rational and factual understanding noted, however, Dr. Camiel that ex- proceedings. Appellant hibited some of concrete he thinking, evidence and that had reported voices him to commit Dr. hearing telling suicide. concluded, nevertheless, that not Appellant Camiel was so psychologically impaired proceed that he could not to trial. The court then permitted Appellant counsel have examined by a retained psychiatrist by Appellant, Blumberg, Robert B. Following D.O. review of records and an inter- him, Blumberg opined view of Dr. that Appellant was trial, competent to stand as he from persistent suffered delu- sion, disturbed, profoundly reality. was and was detached from In light Blumberg’s of Dr. the common court testimony, pleas an court-appointed directed examination Richard expert, Saul, M.D., B. a clinical psychiatrist. Upon evaluating Appel- lant, records, which included a of mental review his health Dr. time, opined Saul oriented as to person, was could place, and communicate with his attorney proceedings. understand the Dr. Saul acknowledged Appellant reported hearing voices in his cell and observed psychotic he suffered from a illness (schizophrenia). Dr. Saul concluded, nevertheless, that Appellant’s schizophrenia remission, Thorazine, noted that he treated being with that such medication should opined through continue and, trial. The Appellant competent court found in response request to a from the ordered the prosecutor, prison officials to continue his medication. The trial proceeded court then *17 motion, fol- it denied which suppression Appellant’s
address lowing hearing. 17, 1981,4 with February on trial commenced
Appellant’s confessions centering upon Appellant’s case Commonwealth’s involvement, specifi his indicating and circumstantial evidence of the crime ceiling into the that: the letters burned cally, nickname and those Appellant’s consistent with scene were was bedroom; involving M.O. the assault appearing matter and tended present to that in the substantially similar Appel perpetrator; Appellant to establish that was to have opportunity him with an provided route to school lant’s contest by The defense countered the offenses.5 committed statements, surrounding Appellant’s the circumstances ing to read and unable write Appellant was particularly, the details of the articulated intellectually unable have statements; the defense also in the they appeared crimes day on the at school Appellant emphasized uncle, Morris from his testimony Appellant presented crime. Hawthorne, who, Appellant’s about testifying in addition to and his statements, Appellant seen noted that he had never ca had the intellectual and that together, Appellant mother in his testified own old. two-year pacity detectives, and defense, admissions to challenging his assault and murder sexually that he did not maintaining victim. concerning, rebuttal evidence presented
The Commonwealth addition, alia, In the Common- confessions. inter that Ap- statements incriminating to introduce sought wealth evalua- during psychological her made to Dr. Wilson pellant disappear- prosecution coincided with Appellant's crimes and his Atlanta, Georgia, children in the of African-American ance of a number State, 312 S.E.2d generally 251 Ga. See Williams area. result, Appel- spectators and certain members As a some support wearing green sign jury ribbons as were lant’s counsel, the trial court request Appellant's missing children. At the ribbons, similarly jurors and the spectators to remove the ordered the addition, questioned the court as to jurors were agreed. impartiality. their demonstration affected whether such concerning Appellant's unusual presented evidence 5. There was also family following the crime. conduct around the victim's *18 tion, in an namely, that he had set fire abandoned house on killed, the date of the crimes and had and set the victim raped, objection In response Appellant’s on fire. to to these state ments, court a hearing, argument the conducted received concerning proof, such and ruled the Commonwealth could not introduce admission to and Appellant’s raping killing victim, it to permitted Appellant’s the but would be elicit setting admission to a fire in a vacant house on March 1979. Wilson, the did not then call Dr. Although Commonwealth from her his limited Appellant presented testimony concerning the indication capacity functioning, including intellectual for damage.6 Appellant of mild brain Counsel also elicited the subpoenaed by that Dr. Wilson had been Commonwealth. cross-examination, to the prosecutor sought explain On objec reason Dr. had been subpoenaed, revealing, Wilson over tion, statement of set a fire in Appellant’s incriminating having an abandoned house on the date of the offenses. and, in
Appellant guilty penalty phase, was found aggravating Commonwealth offered as circumstances that the during perpetration murder was committed of a felony, Appellant knowingly and that had created a risk of grave danger person to another in addition to the victim when he (7). 9711(d)(6), § committed the offense. See Pa.C.S. With former, to the respect incorporated Commonwealth of the medical testimony Appellant’s examiner and statement. In grave of the risk support aggravator, presented testimony along other homes Olive Street were In occupied. mitigation, Appellant initially sought invoke convictions, that he had no significant history prior criminal 9711(e)(1); however, § see 42 Pa.C.S. the trial court ruled that concerning evidence his lack of a criminal significant history any evidence of character good open would the door for and/or proof the Commonwealth to rebut such with evidence juvenile, had been involved in a sexual assault as a Although capac- Dr. Wilson mental testified diminished ity, capacity fully she also stated that true normal.” With ”[h]is respect damage, to the indication of mild brain Dr. noted that Wilson diagnosis require neurological testing, confirmation of such would which did she not administer. for adjudicated delinquent he had not been such although result, Appellant opted forego offense. As a counsel mitigating of the circumstance under Section submission 9711(e)(1), any good Appel- as well as evidence of character. mitigating age lant thus offered as circumstances his record, character, his and the mitigator concerning catch-all 9711(e)(4), § circumstances of the offense. See Pa.C.S. latter, Appellant present any did not testi- support presented during instead evidence mony, relying upon Wilson, Dr. that he had by namely, his uncle and guilt phase mother, mental been abandoned had diminished may damage. suffer from mild brain capacity, death, jury finding The returned with a verdict of one *19 (that in circumstance the murder was committed aggravating no circumstances. felony) mitigating of a and On perpetration appeal, Appellant repre- motions and direct was post-verdict propriety trial counsel and raised as issues: of sented determination; the voluntariness of his con- competency fessions; members of the spectators the fact that several and ribbons to of jury wearing green symbolize plight were Atlanta, in their suggested African-American children which trial; him a fair and trial court and denied predisposition to introduce other crimes allowing error evidence, The specifically, involving the sexual assault M.O. relief, affirmed trial court denied and this Court post-verdict appeal. Hughes, on See Commonwealth A.2d 1264 1995, Appellant requested granted
In November of and was execution, appointed pursue post- of and counsel was stay 12, 1996, Appellant relief. filed an conviction On June to the Relief “Amended Petition Pursuant Post-Conviction (the “PCRA”). §§ 9541-9546 generally Act.” See Pa.C.S. However, of counsel from the former Center October entered Advocacy Education and Defense Assistance Legal for and, on behalf on November appearance their Petition for Habeas 315-page Corpus filed a “Amended I, Pennsylvania Relief Article Section Consti- Under Relief under the tution and for Post-Conviction Post-Convic- tion Relief Act and Consolidated Memorandum Law.” On 2, 1998, again September Appellant on filed May for relief. The supplemental petitions post-conviction various supplemental petitions separate amended and contained Relief,” certain of the claims multi- involving “Claims with error in connection ple allegations legal with ineffective counsel, that: not com- including Appellant assistance was trial, motions, post-verdict appeal; and on direct petent during adult; he an should not have been tried as his statements involuntary, and the of his constitution- police were waiver rights knowingly, intelligently voluntarily giv- al was not en; he entitled to have the selection jury proceedings was transcribed and to reinstatement of his direct appeal rights issues; to all selection he tried respect jury with while involuntarily drugged; investigate, develop counsel failed to defenses; mental health counsel present did seek cautionary surrounding instruction admission of improper evidence; other testimony psychologist, crimes from the Dr. .Wilson, Appellant had admitted a fire in an old setting admitted; on day house of the offense was improperly numerous errors occurred connection with the guilt-phase instructions; jury improperly precluded from introducing mitigating signifi- evidence that he did not have a convictions; cant history prior jury failed to consider from impeded considering Appellant’s age and was as a miti- circumstance; gating the death sentence was unconstitutional- *20 ly imposed, jurors as green ribbons their symbolizing wore sympathy for families of African-American children murdered Atlanta, in and the court to question jurors failed the as to the decision; effect of the Atlanta killings upon sentencing prosecutor’s penalty phase unconstitutional; argument was the penalty phase jury instructions indicat- unconstitutionally ed that the jury unanimously had to find a mitigating circum- effect; stance before it giving the penalty phase jury instruc- tions erroneously implied that a life sentence carried it a with possibility parole; jury was unconstitutionally instruct- during penalty phase ed that capital punishment is “the way”; American and counsel to adequately investigate failed develop mitigating evidence. dismiss, asserting, filed a motion
The Commonwealth waived, alia, either: Appellant’s allegations inter were in delay filing untimely by of the previously litigated, virtue Robert The late Honorable or meritless. petition, PCRA however, issues; on four of the argument A. Latrone heard case, The matter was away. he disposing passed before Jones, II, granted who to the Honorable C. Darnell reassigned and the Following appeal motion. an the Commonwealth’s of on complained appeal, a statement of matters filing of a factor delay an opinion, noting PCRA court issued that an concluding petition, the merits of evaluating claims unnecessary, evidentiary hearing was or merit. litigated either without previously were Court, raises the same issues Appellant Before this the eligibility court. with presented to the PCRA Consistent PCRA, claims as frames his requirements Appellant Pennsylvania or a violation of United States involving States, the denial of or of the United Constitutions laws counsel, in a tribunal or a proceeding effective assistance viii). 9543(a)(2)(i,ii, To § jurisdiction. See Pa.C.S. without must dem allegations, Appellant on ineffectiveness prevail merit; claim is of underlying arguable onstrate that the act or existed for counsel’s strategic no reasonable basis omission; prejudice, that counsel’s error resulted that the out namely, probability that there is reasonable See Com come of the would have been different. proceeding Kimball, 299, 312, 724 A.2d monwealth v. addition, that his claims must establish Appellant See Pa.C.S. previously litigated not been or waived. have 9543(a)(3). if the litigated highest An is previously § issue as a could have had review court which appellate merits of the issue. See matter of ruled right 9544(a)(2). if An be deemed waived § issue will Pa.C.S. trial, it, so before have raised but failed do Appellant could 9544(b). noted, trial, § As or Pa.C.S. appeal. on See trial and on counsel at represented by the same Appellant thus, oppor- his first proceeding the PCRA appeal; direct *21 tunity to challenge the stewardship prior counsel.7 For this reason, Appellant’s ineffectiveness claims are not waived. See Lambert, 346, 363, Commonwealth v. 568 Pa. 797 A.2d (2001) Court). (Opinion Announcing Judgment the Delay
Preliminarily, the Commonwealth that Appel contends lant’s petition PCRA was properly dismissed on timeliness 9543(b) grounds pursuant Section of the PCRA. See 9543(b).8 § Pa.C.S. appeal direct to this Court decided on March judgment and his became final at the expiration of the time for seeking review the United Court, States Supreme specifically, June 1989. See 9545(b)(3) § Pa.C.S. (defining judgment when a becomes fi nal). Appellant filed his amended petition PCRA seven years later, on June 1996. The Commonwealth maintains that it suffered prejudice from Appellant’s unexplained delay, partic ularly since the trial judge has passed away, thereby depriving parties the and the courts of any insights analysis or he could provided. have responds that any delay resulted from illness, his serious mental and the Commonwealth has not identified it how has been prejudiced. respect, Appellant's In this circumstance is distinct from that where new appointed during counsel was appeal. direct In the context of the PCRA, paradigm the latter layered would entail a claim of ineffective- ness, petitioner required which a prove is to frame and allegation upon based appellate acts or omissions of counsel. See Common- McGill, 574, 586-89, (2003) wealth v. 1021-23 (addressing pleading proof requirements layered for a claim of ineffectiveness). provisions provides:
8. This (b) Exception.—Even petitioner if the requirements has met the (a), petition subsection that, appears any shall be dismissed if it time delay filing petition, because of the Commonwealth has prejudiced been ability respond either in petition its to or in its ability re-try petitioner. petition may A be dismissed due to delay filing by petitioner only in the hearing after a a motion to dismiss. This apply petitioner subsection does not if the shows petition that the grounds petitioner based on of which the could not have discovered diligence exercise of reasonable before the delay prejudicial became to the Commonwealth. 9543(b). § 42 Pa.C.S. *22 be considered delay may noted that the court PCRA
While claims, there is no of Appellant’s the merits assessing in the claims were dismissed any that opinion in its indication petition PCRA important, Appellant’s More for this reason. 9543(b) specifi- and hearing, Section dismissed without was hearing. absent a upon delay a dismissal based precludes cally 629, Weinder, 608, Pa.Super. 395 v. Commonwealth Accord (1990) hearing to deter- 1364, (remanding for in its prejudiced has been the Commonwealth mine whether defendant). the Thus, cannot affirm we ability re-try to this basis. dismissal on PCRA court’s Pre-Trial9 to have that trial counsel moved acknowledging
While court, argues juvenile Appellant to transferred charges flawed, as fundamentally proceeding the transfer was that availability of secure the offense and focused court respecting factors facilities, mitigating opposed as juvenile childhood, his traumatic example, background, Appellant’s In illness, regard, Appellant this damage. and brain mental assistance rendered ineffective prior counsel asserts compe transfer motion after failing renew since, of the under the version tency-based hospitalization time, mental a defendant’s Act in effect at Juvenile to transfer a assessing in whether a consideration capacity 202, 28,1978, No. P.L. April Act of juvenile case to court. See child that, should determining in whether (providing § 30 alia, consider, whether transferred, must inter the court be mentally to an institution for committable the child is ill).10 addition, contends mentally or retarded transfer decision challenged the counsel should have prior declined to review The PCRA court direct appeal. on determining the truth issue, failing implicate it viewing guilt penalty pro- pre-trial, implicate Appellant's claims 9. As stages, have been re-or- the issues ceedings, post-verdict/appeal they which relate. stage proceedings to with the dered consistent governing trans- Although relates to the considerations the section court, relevant in have been deemed such criteria fers to criminal 613, 619-20, Pyle, 462 Pa. v. present context. See Commonwealth 104-05 A.2d requirements thereby falling eligibility outside process 9543(a)(2)(h) (limiting § relief of the PCRA. See Pa.C.S. affecting to those claims the context ineffectiveness determining process). truth
The criteria Section 9543 the PCRA include eligibility that the held a tribunal asserting proceeding claims 9543(a)(2)(viii). § The jurisdiction. 42 Pa.C.S. without See in the prosecuted should be propriety charges whether jurisdictional juvenile system implicates court or adult court 9,1976, P.L. No. generally July concerns. See Act of 2,§ B Act (Subchapter ch. 63 of the Juvenile entitled “Juris Potts, Custody”); Pa.Super. diction and *23 956, Zoller, 306, 311, (1996); 673 A.2d 958 Commonwealth v. 350, 355, 436, (1985); 42 Pa.Super. 345 498 A.2d 439 accord Therefore, facially § 6321-6322. claim is Appellant’s Pa.C.S. cognizable under the PCRA.11
Concerning Appellant’s
request,
charge
transfer
jurisdiction
murder
of the criminal
automatically
within
1978,
28,
202,
53, § 22
April
court. See Act of
P.L.
No.
murder);
(defining delinquent
including
act as not
the crime of
Kocher,
306,
303,
see
v.
also Commonwealth
529 Pa.
602 A.2d
1308,
(1992);
§
1310
accord 42
Consequently,
Pa.C.S.
6302.
jurisdiction in the trial court
presumptively proper.
was
See
622-23,
Nevertheless,
Pyle,
303 (1994). 460-61, 121, 123 Common 455, Relying upon A.2d 500, (2000), Miller, Appellant Pa. 746 A.2d wealth v. been previously current issues have not maintains that the solely upon previously litigated not rest they as do litigated, that regard, Appellant emphasizes In this evidence. or certain counsel’s ineffectiveness not consider Court did in incompetence, for evidencing Appellant’s facts additional members, stance, history the familial testimony family illness, illness in the and indications of mental of mental examined health who professionals of the mental reports review, however, raised multi Appellant direct Appellant. On determination, contending competency to the ple challenges flawed, as the did not psychiatrists the decision was incompe was early reports concluding possess tent; Blumberg’s credited Dr. the court should have hearing; that he was testimony during competency the second taking; that he as a result of the medication incompetent diagnosis Dr. Saul’s incompetent given and that he was 436-37, Pa. at 555 A.2d at Hughes, 521 schizophrenia. See 1270-71.
Moreover,
misplaced.
reliance
Miller is
Miller,
a claim that
rejected
the Court
appeal
On direct
of one of the victims should have
pregnancy
evidence
excluded,
its
probative
outweighed by
as its
value was
been
Miller,
531,
effect.
Commonwealth v.
prejudicial
See
1310,
The
in Miller had
appellant
to establish a common
the use of the evidence
challenged
deny killing
stipu-
scheme because he did not
victim
id. at
That
Appellant’s constitutional claim involving
proof
evaluating
competency,
burden
used
his
al
determination,
prior
related to the
though
competency
does
rather,
not concern the nature of the proof, but
the standard
such,
such
employed
evaluating
evidence. As
the claim
issue,
implicates
different
the merits of which were not
waiver,
appeal.
addressed on direct
Regarding
although this
issue could have been raised at the prior competency hearings
contends,
alia,
or on direct appeal, Appellant
inter
that com
alternative,
issues cannot be
In
petency
waived.
Appel
lant casts the issue
terms of ineffective assistance of counsel
argues
any
waiver is overcome. While the Court is
closely divided on the
question
competency
whether a
claim
waived,
may
be
see Commonwealth v. Santiago, 579 Pa.
63-64,
(2004)
855 A.2d
(Opinion Announcing the
Court)
alia,
Judgment inter
(stating,
competency
subject
rule),12
issues are not
to the PCRA’s waiver
need
we
presently,
not settle this issue
as
claim
Appellant’s
may be
analysis.13
resolved
a merits
Nelson,
491, 496-97,
12. Accord Commonwealth v.
(1980) (plurality opinion) (declining
competency
1000-01
find
issue
Act).
Hearing
waived under the Post-Conviction
Assuming
may only
that the claim is waived and
be reached via a
challenge
prior
stewardship,
arguable
prereq-
counsel's
as
merit
ais
ineffectiveness,
demonstrating
uisite to
a claim of
resolution of the
jurisprudence.
claim on this basis is not
inconsistent with our
See
McGill,
that,
generally
(explaining
Pa. at
805
trial,
incom
alleging
At
time of
a defendant
Appellant’s
the
by
fact
clear and
required to establish such
petence was
1976,
817,
9,
No.
convincing evidence. See
July
Act of
P.L.
Banks,
v.
403(a);
143, §
521
(1987).14
trial,
1,
after
and
years
A.2d
12
Fifteen
final on direct
years
appeal,
seven
after his conviction became
addressed the
Supreme
appropriate
the United States
Court
Oklahoma,
Cooper
v.
incompetence
for a
in
finding
standard
(1996). There,
348,
1373,
116 S.Ct.
it had
determined
(1992),
that a state could
Application
may
ap
be
er,
ruling
of
consideration whether
requires
involving substan
rulings
In
new
plied retroactively.
general,
review,
on collateral
retroactively
are applied
tive criminal law
2519,
Summerlin,
348, -,
124 S.Ct.
v.
542 U.S.
see Schriro
(2004),
rulings
2522,
procedural
442
new
159 L.Ed.2d
whereas
Lane,
v.
489
Teague
are not. See
of constitutional dimension
(1989)
1060, 1075,
334
288, 310,
103 L.Ed.2d
109 S.Ct.
U.S.
565,
Pa.
555
Blystone,
Commonwealth v.
(plurality opinion);
(1999).
1197,
retroactivity
of
1203
For purposes
inter
broadly
been
procedural
has
analysis,
definition
manner
only
“that
rulings
regulate
preted
encompass
Schriro, 542
culpability....”
the defendant’s
determining
-,
original). By
in
(emphasis
at
124
at 2523
U.S.
S.Ct.
“if it
contrast,
only
one of substance
rule is considered
new
that the law
persons
conduct or the class of
range
alters the
Oklahoma,
Connecticut,
Pennsylvania, and
15. The Court
identified
n. 16. Louisiana
at 360 n.
307
definitions,
Id.
punishes.”
Given these
the burden of proof to
support
finding
incompetence falls more
in
directly
category of
implicating
rules
the manner in which a defen
guilt
is, therefore,
dant’s
is determined and
procedural. Ac
at -,
2523-24;
cord id.
124
at
S.Ct.
In re Winship, 397
cf.
358, 362-63,
1068, 1071-72,
(1970)
U.S.
90 S.Ct.
The ruling must also be
which is defined as
one that “breaks
ground
new
or
imposes
obligation
new
on
Government,” or,
States or Federal
otherwise,
stated
where “the result was not dictated by precedent existing at
the time the defendant’s conviction became final.” Teague,
489
at
U.S.
S.Ct.
(emphasis
original).
determining
new,
whether a rule is
it is
examined
context of the legal setting existing at the time the conviction
became final “to determine whether a state court considering
claim ...
[the]
would
felt compelled by
have
existing prece
dent
to conclude that
...
rule
required
by the
Parks,
Constitution.”
484, 488,
v.
494 U.S.
110 S.Ct.
Saffle
1257, 1260,
(1990).
108 L.Ed.2d
standard,
Under this
“gradual
developments
the law over which
ju
reasonable
rists may disagree” are
Smith,
treated as
Sawyer
new.
227, 234,
U.S.
S.Ct.
308 Sheley id. v. (citing Single muster. See
stand constitutional (11th Cir.1992); King, v. 1434, 1440 F.2d Holmes 709 955 tary, (5th Cir.1983)).16 965, Cooper As not 967 the issue had F.2d addressed, not holding and as the dictat previously been Teague, of constituted a for it new by precedent, purposes ed rule. nevertheless, to the provides exceptions two retro-
Teague,
a
places
The first
where a new “rule
activity
applies
bar.
of the State to
private
beyond
power
class of
conduct
guarante[e]
categorical
or addresses ‘a substantive
proscribe
Constitution,’
‘prohibiting
such as a rule
a
accorded
for
of
category
a class
defendants
punishment
certain
of
”
494,
at
Saffle,
of their status or offense.’
494 U.S.
because
(citations omitted).17
exception
110
at 1263
This
does
S.Ct.
here,
either the
ruling
Cooper
did not involve
apply
see,
conduct,
e.g.,
a class of
Griswold v.
decriminalization of
Connecticut,
479,
1678, 14 L.Ed.2d
381
85 S.Ct.
510
U.S.
(1965),
of
class of
prohibition against
punishment
or
See,
as,
mentally
e.g.,
such
retarded.
Atkins v.
persons,
2242,
(2002).
335
122
153 L.Ed.2d
Virginia,
U.S.
S.Ct.
concerns
rules of criminal
The second
“watershed
exception
495,110
1264, and
Saffle, 494
at
to be
U.S.
S.Ct.
procedure,”
rule
‘seriously
of the
must
diminish
implicated, “[(Infringement
conviction,’
an accurate
and the
obtaining
the likelihood
rule
understanding
procedural
‘alter our
of the
ele-
must
bedrock
’
Tyler
fairness of a
v.
proceeding.”
ments
essential to the
employment
convincing
competency
The
a clear and
standard for
402(b)
may
provision
from
in Section
determinations
have resulted
Act,
7402(b), permitting
§
Mental
Procedures
P.S.
Health
involuntarily
incompe-
found
court to
commit
treatment a defendant
trial,
involuntary
fact that
treatment
tent to stand
and the
court-ordered
7304(1).
§
subject
convincing
to a clear and
standard. See 50 P.S.
is
commitment,
convincing
involuntary
clear and
In the context
an
Texas,
constitutionally appropriate.
Addington
standard
See
309
2478, 2484,
Cain,
310 not to
cordingly, Cooper retroactively applicable Appellant’s is case.20 claim, remaining Appellant argues
In his
pre-trial
confessions
and that he did
involuntary,
his
were
rights.
appeal, Ap
his constitutional
On direct
validly waive
of his confes
pellant specifically challenged the voluntariness
knowingly
intelligently
sions and
that he did not
and
argued
Guilt involuntarily asserts that he was tried while
Appellant
in
of his
drugged
right
with
medication
violation
psychotropic
Nevada, 504
process
upon Riggins
to due
of law. Based
v.
(1992),
127,
1810,
Appellant
112
that, in
of his
support
insanity defense he had a
show
right
mental
jury
Riggins,
“true
state.”
504 U.S.
See
*31
112
hearing,
S.Ct. at 1812.
the court
the
Following
denied
trial,
motion and the defendant
to
he
proceeded
pre-
where
insanity
sented an
defense
testified in
his own behalf.
The
that
Supreme
United States
Court
the
acknowledged
Fourteenth Amendment’s
protects
Due Process Clause
against
involuntary
the
administration of antipsychotic drugs.
See id. at
Assuming the ruling Riggins is retroactively applicable,22there is no in Appellant’s indication peti PCRA tion or brief that the psychotropic medication that he was receiving Rather, was administered involuntarily. Appellant that, relies upon the fact following second concern- hearing previously The PCRA treated litigated, explaining court this issue as Appellant argued that appeal taking had on direct that his of Thorazine related, competency. and Elavil Although demonstrated his lack of competency issue of based impairments asserted mental health involving distinct Appellant involuntarily from that whether medi- Therefore, competent cated so as to be to stand trial. has issue not litigated. previously been supra pp. Op. 22. See 780-81. Appellant that competency, prosecutor requested his
ing testimony request The on his followed remain medication. inappropriate be to medically that it would indicating Dr. Saul the stressful cir during medication Appellant’s discontinue had trial. been surrounding Notably, Appellant cumstances Thorazine, medication, for a number of antipsychotic taking an he hearing; to had prior competency months the second he felt such medi taking his that better physicians advised not cation; that the did affect Dr. Camiel testified medication eval ability during psychiatric to communicate Appellant’s uation; Appellant at no does record indicate point Moreover, be medication discontinued. requested such that he counsel of a desire does not assert advised Appellant and, Riggins, the medication unlike taking discontinue at trial. infirmity did not a mental defense present emphasized Appellant argues prosecutor Although for the death jury arguing calm to the affect does contend that medication interfered he not penalty,23 Absent an offer ability communicate with counsel. with of his why maintenance medi Appellant explaining from that counsel involuntary, we will assume cation was object. See Commonwealth O’Don failing ineffective (1999).24 nell, Pa. *32 respecting actually a were prosecutor's The remarks calm demeanor age Appellant's maturity. mitigation to evidence of addressed “nullify regard does not the PCRA's waiver 24. Our decision in this indicates, Concurring Mr. and Dissent- provision” as Justice Castille see 817, Appellant’s Opinion, op. being is not on ing at since relief afforded Rather, merely denied the claim on a different basis claim. we have opinion namely, holding a responsive prefer, which would from that analysis. retroactively applied Teague Riggins is not to be under that however, general regard, with the approach in is consistent Our resolve in precept that the Court will not debatable constitutional issues see, grounds, may 592, 600, of that be resolved on alternative the context claims Fiori, 905, (1996) (citing e.g., In Pa. 673 A.2d 909 re 543 549, 1409, Court, 568-69, Army U.S. S.Ct. v. 331 67 1419- Rescue Mun. Dillworth, 479, 20, (1947)); Pa. 1666 v. 431 91 L.Ed. 859, 483, (1968), alignment practice in 246 A.2d and is with 861 retroactivity many Teague-based that courts have been confronted with Parke, See, 96-1245, 413510, e.g., WL questions. v. No. 1997 Wallace (7th 15, 1997) (declining application retroactive *2 Cir. Jul. consider 39, 328, Louisiana, 111 112 L.Ed.2d Cage v. 498 U.S. S.Ct. 339 merits); (1990), petitioner’s failed on the because the habeas claim
313
inef
counsel was
Next,
prior
contends that
Appellant
dire pro
of the voir
transcription
to seek
failing
for
fective
he
appeal,
direct
to which
motions and
ceedings
post-trial
result,
entitled,
appeal rights
his direct
with
and as a
is
nunc
issues should be reinstated
jury
to all
selection
respect
that,
to the
maintains
Alternatively, Appellant
tunc.
pro
and cannot be
longer
no
exist
transcripts
that
extent
re-created, he is entitled to a new trial.25
adequately
transcript
request,
PCRA
Responding
1923,
Rule
Appellate
court
accordance with
proceeded
a statement of the evidence
party
prepare
permits
which
means,
including
from the best available
proceedings
or
recollection,
Pa.R.A.P.
transcript
is unavailable. See
where
statement
court
directed that such
1923. The PCRA
also
Commonwealth,
any
and after
upon
be served
should
amendments,
be filed
it was to
with
objections
proposed
or
however,
cautioned,
The PCRA court
approval.
court for
result in a
to file such a statement would
waiver
the failure
of the tran-
portions
the unavailable
issues based
any
and, instead,
file a statement
timely
did not
script. Appellant
be
that a statement could not
explaining
a response,
submitted
recollection
independent
trial
had no
because
counsel
prepared
mental
suffers from severe
the proceedings,
440,
(4th Cir.1992)
Pavlico,
(declining to
F.2d
448
United States v.
961
957,
Michigan,
retroactivity analysis
v.
501 U.S.
engage in
of Harmelin
2680,
(1991),
on the
Appellant premises
Shields,
(1978),
Pa.
A.2d 844
wherein
Court
that, to
explained
adequately
right
appeal,
assure
or
provided
complete transcript
defendant must be
with a
“other
trial
Id.
equivalent picture
proceedings.”
some
at
5, 10 Appellant additionally prior claims counsel was ineffec- for not that a arguing limiting required tive instruction was during with to other crimes introduced respect evidence trial, namely, involving attempted the sexual assault and *34 matter, contrary In the present Appel murder M.O.26 the court issued a representation, lengthy lant’s instruction concerning charge, specifically other crimes evidence its jurors the both as to the of the cautioning purpose limited evidence, and that it must not be treated as evidence of bad character or criminal In Appellant’s predisposition.27 previously litigated, noting 26. The PCRA court deemed this issue that admissibility the of the other crimes evidence was on direct raised claim, however, Appellant’s appeal. predicated PCRA is not on the evidence, rather, admissibility of the other the crimes but absence jury respecting relevancy. generally of a instruction its See Common- Billa, 168, 179-80, (1989) wealth v. 841-42 that, (cautioning prejudicial because of the effect of other crimes evidence, generally instruction, explaining accompanied cautionary its admission must be purpose proof). the limited connected with such part, pertinent emphasized: the court by you any way This evidence must not be considered other than purpose just identity for which I stated: to determine the of the acts, is, perpetrator of the Rochelle Graham criminal to establish identity person or show who committed the offenses in this being which case is tried. Notwithstanding the fact that I have ruled that the evidence of case, charges only unrelated is admissible as evidence relevant identity person issue of who committed the crimes in this trial, you complete case on are to accord the defendant the full and presumption during your benefit of innocence deliberations. crimes, regard You are not to the evidence of unrelated which is admissible, irrespective of whether or not a defendant ever tried crimes, showing and convicted for such unrelated that the defen- tendencies, person dant is a of bad character or criminal from which you might guilt. be inclined to infer Here, admitting charges this Court's such evidence of unrelated well-recognized exception general within a rule which bars the independent admission of evidence of unrelated crimes of those for through which the defendant is on trial. Evidence introduced testimony ... [M.O.] related witnesses was offered to establish identity person or to show that the defendant is the who committed charges involved in this case. repeat: I want to Consider the evidence of unrelated crimes in the you. Notwithstanding manner I have outlined for the fact that I evidence, admitted such don’t allow the admission of such evidence presumption to erode the defendant's of innocence. Don't allow it to your person create it in minds that he is a of bad character. Don't your allow it to create a belief in minds that the defendant that, predisposed to crime or since he could have committed to raise such instructions, had no reason counsel of these light claim is ineffectiveness with- on appeal, issue out merit. counsel was ineffective prior maintains that also
Appellant the trial court’s an on direct appeal to raise as issue failing to cross-examine a the Commonwealth permitted ruling Wilson, had admit- Appellant Dr. and elicit psychologist, of the offense. in an old house on the date a fire setting ted Dr. examination was state- contends that Wilson’s *35 initiated, not of his constitutional and that he was advised Arizona, to Miranda v. 86 S.Ct. U.S. pursuant rights 16 L.Ed.2d case, the the defense background, following By way a to call Dr. Wilson as rebuttal witness sought Commonwealth the Miranda ability to understand Appellant’s respecting killing to both Ms. Gra- and admission warnings Appellant’s day house on the and a fire inside vacant starting ham Dr. testi- objected to Wilson’s Appellant crime. Counsel for admissions, that he had arguing mony concerning Appellant’s during discovery; such statements been with provided not the course of a court- during that made any statements juvenile proceeding in the context of ordered interview confidential; Appellant with- questioning be and the would Fifth Amend- Miranda warnings out violated providing and, as he was to be free from self-incrimination right ment counsel, to counsel. right his Sixth Amendment by represented suppressed Appel- the trial court conducting hearing, After Graham, killed but ruled that having admission to Ms. lant’s statement that he had could introduce his the Commonwealth of the murder and that matches oh date playing been with an old house burned. not to call Dr. Wilson elected
Although Commonwealth trial counsel to call presentation, opted rebuttal part of its evidence of dispute her on surrebuttal Commonwealth’s In trial counsel elicited literacy. regard, this level, Dr. Wilson grade at a second which Appellant read have, necessity, testimony, .. . he must [M.O.] incidence charges in case. committed the illiterate; Appel- him acknowledged functionally rendered all judgment, reasoning social were comprehension, lant’s deficient, concrete, along the lines of stereotypically child; not be damage and that mild brain could young of a addition, questioned ruled out. In trial counsel conclusively been subpoenaed Dr. as to whether she had Wilson spoken prosecutor prior and had with inquiry, to this coming response into courtroom. Commonwealth, objection, out that brought over fire during having Dr. interview to set a had admitted Wilson’s matches, and that an old playing on March while with The trial court ruled that the house had burned. Common- questioning as trial counsel’s question proper, wealth’s was that the decided not to suggested present Commonwealth had Dr. Wilson’s because it have been testimony would unfavora- ble. Smith,
Relying upon Estelle v.
451 U.S.
101 S.Ct.
(1981), Appellant
upon the defendant’s right Amendment to counsel. See incrimination and his Sixth 469,101 explained In ruling, id. at at 1876. so Court S.Ct. defendant, psychiatric neither initiates a criminal who “[a] evidence, any psychiatric nor to introduce attempts evaluation if respond psychiatrist not be to to may compelled sentencing him at a against capital statements can be used 468,101 Id. at S.Ct. at 1876. proceeding.” matter, initiate the did not present Appellant In the present with Dr. Wilson and did psychological evaluation Nevertheless, trial the trial. infirmity during mental defense findings opinions regarding elicited Dr. and counsel Wilson’s including functioning comprehension, Appellant’s cognitive from For this may damage. an indication that he suffer brain reason, squarely circumstance does not fall within Indeed, observed, trial court as the prohibition. Estelle’s to establish an inference that Com prior sought counsel an declined to call Dr. Wilson because she was monwealth had witness, though initially subpoenaed even it had unfavorable called her, credibility her as a witness thereby bolstering trial advantage, such Having attempted gain the defense. surrounding the rea questioning the door to opened counsel her, namely, subpoena son for the decision to Commonwealth’s by Appellant.28 statements made incriminating the existence of ineffective for counsel cannot be deemed Consequently, prior of Dr. cross-examination failing challenge prosecutor’s appeal. Wilson on counsel ineffec prior maintains
Appellant the defens failing investigate, develop, present tive for Appellant insanity capacity. support, es of and diminished Fleming, Patricia psychologist, has included from a affidavits Fox, M.D., Ph.D., stating A. and a Robert psychiatrist, im cognitive psychiatric suffers from serious at the time of impairments and that these existed pairments, *37 knowing him from the nature prevented the offenses and Appel- Although strategic may questionable, 28. decision have been challenged respect. counsel's assistance in this lant has not 819 or, know, of his actions if he did that he did not quality know addition, he doing wrong. Appellant’s that what opined mental health that he suffered from a experts diminish ed and that his mental and capacity, cognitive impairments diminished his significantly ability premeditate form a intent to kill.29 specific
The court concluded that a defense of PCRA or insanity capacity diminished would have been inconsistent and, claim accordingly, with of innocence could not be for a making strategic counsel faulted decision to a mental defense forego infirmity given Appellant’s testimon y.30 insanity A defense of commission of the acknowledges defendant, act while the absence of maintaining legal Cross, See v. 38, 43, Commonwealth 535 Pa. culpability. 634 173, (1993). Similarly, A.2d 175 a defense of diminished liability, admits capacity contesting degree culpa while bility upon inability based a defendant’s a possess particular Jones, v. See Commonwealth mental state. 539 Pa. (1994). 1101,
651 A.2d 1109 Where defendant has testified Preliminarily, the PCRA court noted that the merits the claim 29. addressed, that, insanity reasoning related to the defense need not be trial, competent was found to stand the Commonwealth could easily any insanity. have rebutted contention of The standards relative competency necessary insanity, to however, to stand trial and those to establish Bruno, 245, are distinct. See Commonwealth v. 466 Pa. 252 n. 3, 40, (1976); Melton, A.2d 44 n. 3 competency 351 A.2d A determination involves trial, ability, an assessment of a defendant's at the time of to consult counsel, defense, participate with in his understand nature of 7402(a); proceedings. Appel, § See 50 P.S. Commonwealth v. 171, 187-88, contrast, (1997). By insanity Pa. an offense, capacity, defense focuses defendant’s at the time of the quality to understand nature and of his actions or whether he knew 315(b). Thus, wrong. § that his actions were See Pa.C.S. the PCRA viewing competency court necessarily erred determination as negating insanity. a defense of Notably, the PCRA court’s conclusion that counsel’s actions were premised upon strategic considerations was made without benefit of hearing affording opportunity an explain for counsel to the basis for expert, his decision. Counsel had retained a mental health Dr. Blum- and, berg, purposes competency during for issue the second competency hearing, Blumberg indicated to the court that Dr. would examining Appellant purposes potential also be of a defense.
320 crime, committed a this Court having
at trial and has denied
to
failing
present
counsel ineffective for
has declined to deem
been in conflict with his client’s own
a defense that would have
Paolello,
47, 78-79,
Pa.
665
testimony. Commonwealth
Cross,
43-44,
(1995);
see
Appellant’s remaining guilt-phase object in to at trial failing ineffective assistance sel rendered respecting jury on numerous errors appeal and raise which, according Appellant, to violated his due instructions adequacy In not evaluate the rights. general, we will process references; rather, based on isolated of the instructions whole, as a with deference accorded charge is reviewed in instructions. phrasing trial court’s discretion its See Com Gibson, Pa. monwealth v. the trial court’s
Three of claims involve doubt and the of inno presumption discussion of reasonable First, in argues that the court erred advis cence. could based jurors they Appellant guilty find ing sufficient, alone, if it evidence was with Commonwealth’s In stating, Appellant to the defense evidence. so regard out to process right that the court undermined his due asserts defense and relieved the evidence his own Common present The trial court’s proof. explanation of its burden of wealth following: in the context of the can find a reasonable doubt of the your you deliberations the defendant’s evidence guilt by appraising defendant’s alone, alone, admix- evidence Commonwealth’s or/and (sic) for the prosecution ture or combination evidence or the defense. right process under his constitutional to due certainly,
Most law, right present the defendant has a according behalf, trial, evidence at present in his own and to evidence evidence, it, if he is not to create present and such does that he has a burden of the case but your proof minds or determining such evidence in whether you weigh are in the not there is a reasonable doubt case. hand, analyzing on the other after equal importance,
Of alone, can that it you evidence find Commonwealth’s a reason- guilt beyond sufficient to establish defendant’s element of each respect every able doubt with to each and *39 of which this defendant stands accused every charge trial, your at restrict evaluation to the provided you here evidence and the Commonwealth’s evi- Commonwealth’s alone. dence upon
Bear in mind that this burden the Commonwealth the defendant’s proving guilt requires element, prove every every part each and each and factual necessary proof to make out the crime and this charged, must be a reasonable doubt. beyond
[*] [*] [*] yoke proof The remains the Commonwealth case, throughout the entire trial of the until such time as the jury, after deliberations and after consideration of all of the evidence, counsel, arguments present instruc- Court, tions or final charge concludes the defen- guilty charged beyond dant is of the crime a reasonable doubt.
Although analyzing the reason for the court’s reference to unclear, alone the trial court Commonwealth’s evidence is stressed before the remarks at issue and thereafter repeatedly that the should consider or all of the jury Appellant’s evidence Indeed, arriving evidence before at a verdict. the court specifically explaining referenced the defense evidence in jury they proof determining were to consider such guilt whether or the defendant’s had been established beyond a reasonable doubt. decline to Consequently, we conclude that Appellant prejudiced by prior counsel’s omission.
Next, improp that the trial court Appellant contends substantial, one being reasonable doubt as erly characterized much serious than judgment, that clouds the more at Citing Cage, doubt.31 498 U.S. S.Ct. possible reason that the trial court’s definition of Appellant maintains unconstitutionally able doubt lessened Commonwealth’s the reasonable doubt part, burden of In relevant proof. charge following: consisted cause a A doubt is such a doubt that would reasonable careful, hesi- reasonably person pause, sensible prudent, tate, acting upon himself or herself before and restrain affairs. matter of in his or her own highest importance * * * reasonable, doubt, fairly A must be one which strikes to be However, it judgment. mind and clouds the a conscientious ferret or might dig up, up, is not such a doubt as one of the norm conjure up or out of oblivion or out up summon unpleas- of an escaping consequences for the purpose verdict, an it a doubt is reasonable and ant but which *40 honesty and intellectual fairly honest and real doubt with or, just as that was arising presented out of evidence that was out of the lack or absence of evidence importantly, of a crime. part to some or element presented respect with or fanciful or merely imagined A doubt is not an reasonable It juror. come into the mind of a passing fancy may evidence, from the which is substan- arising must be doubt tial, founded, common and based on human reason and well sense. aby such be taken notice
A reasonable doubt as would in the case is juror question in a case or a or issue deciding cause a reasonable of the same nature as a doubt would affairs, woman, in a conduct of or her man or herself, hesitate, to stop, manner of to himself or importance objected Although to the court's reference to "substan- trial counsel doubt, defining was not raised on direct tial” in a reasonable issue appeal. seriously and consider as to whether he should do certain before thing finally acting.
Further, a doubt something reasonable is different and possible much more serious than a doubt. All of us live day day-to- to and have lived in the course of our lives on a day basis, day all know from our common learning we that all experience knowledge matters of and human affairs A possible possible any entail a doubt. doubt arises all It things. impossible possess any is almost to human or to come to conclusion to a knowledge any certainty beyond possible doubt.
The is not required prove beyond Commonwealth its case all doubt. it would have been for the trial court preferable
While
using
avoid
the term “substantial” in its reasonable doubt
Nebraska,
1, 19-20,
see
v.
charge,
Victor
U.S.
S.Ct.
(1994),
on the of innocence presumption unconstitutionally suggested presumption that such could be overcome aby preponderance In particular, Appellant highlights evidence. part charge stating court’s that the presumption innocence is it “outweighed dissolved when to the contrary.” evidence *41 passage The of a highlighted by Appellant part lengthy doubt, in explanation regarding reasonable which the court Stokes, Notably, judge presided Murphy, 32. the same trial court and present the matter. that: the has jury cautioned the Commonwealth repeatedly beyond the a reason guilty the burden of defendant proving doubt; shifts; this burden never and the Commonwealth able every element each and every must establish each and beyond case a reasonable doubt.33 Ac necessary fact its of charge respecting presumption the court’s the cordingly, predicate and cannot as a for a adequate innocence serve stewardship of of counsel. claim deficient challenges raises six to the separate next evidence, that the court asserting trial of the summary court’s way encourage in such a as to “marshaled the evidence evidence; disbelieve the the Commonwealth’s jury believe A evidence; find trial court Appellant guilty.” defense its testimony during or summarize may refer evidence commentary impartial that such is and does charge, provided of the province jury. not invade the See Commonwealth Pursell, Here, as a summary the trial court of evidence was explained, jurors’ recollections because the trial refreshing means of pertinent part, explained: the trial court proving guilt beyond burden of the defendant’s The Commonwealth’s yoke upon proof The remains a reasonable doubt never shifts. of case, throughout the entire trial of the until such jury, and after consideration of all the time as the after deliberations counsel, evidence, arguments present or of and the instructions Court, guilty charge concludes that the defendant is of the final of this beyond charged crime or crimes reasonable doubt. Further, continuing presumption with there of innocence vested is beginning only at the or commencement of the trial the defendant not trial, throughout stages you jurors all the even while as are but never-shifting deliberating. And the Commonwealth has a burden to guilt beyond prove a reasonable doubt. law, innocence, upon presumption as a matter of is founded The principle justice, but a first and is not a mere form substantial part the law. stated, presumes a innocent of crime. As the law defendant to be accused, Thus, defendant, although begins a he stands trial with no Thereafter, nothing legal against permits the law but evidence him. competent presented jury to be evidence before considered So, any charges brought against pre- support the accused. itself, alone, upon sumption basis which to of innocence sufficient you jurors, acquit an evaluation of the a defendant unless case, beyond in the are a reason- Commonwealth’s evidence satisfied guilt. able doubt of the defendant's *42 evidence, had been Prior to the the trial lengthy. reviewing controlled; jury court the that: their recollections he advised fact-finder; during summary, may not the the he inadvertently testimony. omit certain
In regard, Appellant asserts that the trial court Moore, the unfairly testimony Ophelia characterized of the aunt, that, although victim’s who indicated had Appellant offense, frequented prior her home to the he had avoided Commonwealth, contact her According with afterward. to the such conduct suggested guilt. consciousness of Addressing alia, inter noted, testimony, Ms. Moore’s the trial court that she actually “described what would been the reason for have the of the Focusing whereabouts on the word defendant^]” “actually,” Appellant contends that the use this term consti tuted an endorsement of the evidence as establishing guilty conscience. that the term Assuming could have been under advances, the conveying meaning Appellant stood given the trial court’s stated purpose reviewing the evi fact-fínder, dence and acknowledgment jury’s the role as we decline to conclude that this isolated prejudicial. reference was
Next, that, *43 uncle, of his testimony of the discussion
that the court’s of Hawthorne, Appellant’s waiver in connection with Morris admission, directed subsequent and rights his constitutional summarizing In rights. of such to find a valid waiver jury the that he only the court indicated testimony, Mr. Hawthorne’s intelligence, background, to Appellant’s had testified vein, In the same interrogations. of the two circumstances evaluating whether the standards for the court also discussed and volun knowing rights one’s constitutional a waiver of Court, in which from this certain decisions tary by referencing back limited educational defendants with statements doing, In so admissible. mentality were deemed grounds to find that jury that the court directed asserts Appellant The exam matter of voluntary as a law. confession was his that an the fact however, highlight offered to ples, were the to of consideration requires of voluntariness assessment deficiency in circumstances, solely to opposed as tality of mentality. or education of consciousness
Next, the court’s disputes Appellant indicating instruction, upon focused evidence which guilt crime, the scene of away from stayed had Appellant Moore. The of Ms. presence in the had his hands when wrung crime, “manifesta including following an accused conduct of to show distress,” tending is admissible tions of mental A.2d Pa. Homeyer, guilt. that, jury (1953). Here, advised merely the court to, they permitted were required although they were mental dis manifestations of actions as consider guilt. of a consciousness tending tress show Similarly, that the court’s discussion Appellant argues of circumstantial focused circumstances proof improperly indicating guilt, example, his the court referred to the ceiling letters that had been burned into the at the crime appearing scene and those on the bed ceiling Appellant’s Notably, employed generic examples room. the court also part explanation. any circumstantial evidence as event, the instruction aimed at contrasting Common evidence, indirect proof wealth’s or circumstantial with direct and the fact that the examples court used as certain aspects the circumstantial evidence in Appellant’s improp case did not his erly suggest guilt.
In defining the offense of arson endangering persons, the court stated that the persons recklessly placed who were the fire danger by were residents the block where the offense occurred. According Appellant, court’s identifi cation of the alleged victims had the effect of directing guilty for that In making argument, verdict offense.
fails to acknowledge the court’s effort was aimed at ensuring jury did not treat Ms. as a Graham victim of *44 arson, as the evidence that indicated she had died before Furthermore, the fire was started. the court explained jurors must find as an element of the offense that the fire another endangered person. of
Despite Appellant’s emphasis particular words employed the court during commentary, its at no did the point court express opinion innocence, an as to Appellant’s guilt or or the credibility any of of the witnesses. See Commonwealth v. Meadows, 344, 354-55, (2001) Pa. 567 787 A.2d Leonhard, (quoting 90, 95, Commonwealth v. 336 Pa.Super. (1984)). Moreover, noted, as because the conjunction court’s comments were issued in with frequent admonitions jurors to rely upon were their own conclusions, recollection of the facts and form their own there was no basis for prior object counsel to and raise this issue on Whitson, appeal. See Commonwealth v. 461 Pa.
A.2d to the instruc challenge guilt-phase final a to differentiate hypothetical the court’s use of tions involves second-degree hypotheti murder. In the first- and between if, robbery, cal, during the course of a explained the court a machine multiple a bank teller times with robbers shoot two willful, deliberate, a their actions indicate gun, would murder, in the second opposed as to a murder premeditated that the indicated that Appellant argues hypothetical degree. felony of a constitutes murder killing during a the commission kill. Al specific absent intent degree in the first even it inapt, the trial court’s use of though hypothetical degrees of the various of lengthy discussion during occurred murder, explaining at that circumstantial and it was directed to kill be from the may of a intent drawn specific evidence committed, as, such multi the homicide was manner which Therefore, counsel cannot be faulted for gunshot wounds. ple instruction on object challenge and raise a failing to appeal.
Penalty Phase that, of miscon prosecutorial contends result
Appellant counsel, he prevented duct and ineffective assistance circumstance his lack of a offering mitigating from as a convictions. See criminal history prior significant 9711(e)(1).' com way background, prior § to the By C.S. sought rulings trial counsel penalty phase, mencement of the certain bearing upon of evidence respecting presentation circumstances, the assertion that including whether mitigating criminal significant history prior did not Appellant have convictions, to rebut such allow the Commonwealth would that, 13-year-old juvenile as a claim with evidence assaulted a minor female a vacant sexually had regard, In this knifepoint.34 house *45 that incident to investigated to call the detective who intended rape, Appellant to the offense as a 34. The Commonwealth refers testimony attempted rape. The from the *46 330 conduct, to the record of opposed criminal as
Appellant’s prior Characterizing the assertion juvenile disposition. the history a criminal convic- significant prior lacked fraud, that evidence of a maintains tions as false to rebut this have been admissible prior rape would claim. mitigation the PCRA court concluded
Addressing
arguments,
these
in a consent
juvenile
the fact that
case resulted
as the
would have
significance,
disposition
decree
of no
issued
in the same manner as a final decree
parties
bound
at 21
Op.
on the merits.
PCRA Ct.
following hearing
a
See
621,
W.,
293, 296,
300
446 A.2d
(citing
Pa.Super.
In re John
(1982)). Moreover,
reasoning
623
the PCRA court viewed
juvenile adjudication
of a
to rebut
the admission
supporting
Stokes,
see
Generally,
thereon
judgment
ment of the
of the accused and
guilt
Kimmel,
111,
107,
v.
523 Pa.
565 A.2d
court.” Commonwealth
(1989) (citation
426,
omitted);
v.
see also Commonwealth
428
(1996).
Caine,
235, 241,
890,
Pa.Super.
453
683 A.2d
893
Statute,
the Death
has
Penalty
the context of
Court
reach,
instances
encompassing
accorded the term a broader
though
judg
a
finding
guilt,
there has been
even
which
imposed.
has not
been
See Common
yet
ment of sentence
460,
279, 287-88,
505 Pa.
479 A.2d
464
Beasley,
wealth v.
(1984)
Pa.
497-
Travaglia,
v.
(citing Commonwealth
(1983)).
juvenile
adjudi
A
delinquency
467 A.2d
cation,
committed a
finding
juvenile
that a
which involves
act,
6341(a), (b),
§
therefore been
criminal
see 42 Pa.C.S.
has
aggra
purposes
establishing
treated as a conviction for
significant history
that a defendant has a
vating circumstance
the use or threat of violence
felony
involving
convictions
Baker,
Pa.
person. See Commonwealth
reasons,
juvenile
For
delin
similar
to rebut
adjudications have been deemed admissible
quency
Stokes,
at
mitigating
circumstance
issue here. See
261-62,
The
of the prior
to introduce evidence
allowing the Commonwealth
offenses,
Ordinarily, specific
juvenile
not the
court record.37
other crimes are not admissible
involving
of conduct
instances
Morris,
Pa.
v.
character.
See Commonwealth
prove
404(b),
715,
(1981);
Pa.R.E.
425 A.2d
accord
405(b).
prior
exist
prohibition
to this
where
Exceptions
alia, motive, intent,
or
plan,
inter
prove,
bad act is offered
Morris,
What whether noted, in addressing Appel admissible. As been otherwise that the trial court observed Section mitigation proffer, lant’s 9711(a)(2), 9711(a)(2) statute, § 42 Pa.C.S. penalty of the death ... for the admission of “evidence that the authority provided question deems and admissible on court relevant the court’s imposed.” Significantly, sentence to be Id.38 9711(a)(2) in relation to the rebuttal reliance Section was character adduced any potential evidence The trial mitigator. to the catch-all court did pursuant specifically provision allowing invoke this as a basis admission of the bad act as rebuttal to the prior evidence significant history mitigator. respect assertion of the no With evidence, ruling to the rebuttal of character the trial court’s 9711(a)(2) aligns with the view that establishes a Section mechanism for the to the broad respond range mitigation may presented be under the catch-all Fisher, circumstance. Commonwealth v. See Fisher, explained Court the death statute amended to afford penalty greater when evidence, mitigation latitude the introduction of Section 9711(a)(2) amended, the admis adding language allow sion of evidence relevant to the sentence to be imposed. See The id. Court Fisher thus reasoned: context When historical of the amendments to the death examined, statute is it becomes penalty obvious 9711(a)(2) § in response expansion was rewritten to the mitigating circumstances that could be introduced at trial. *49 The amendment latitude the gave Commonwealth to introduce respond evidence to counter and to whatever that fell the mitigating evidence was introduced within “catch-all” for provision mitigating circumstances. It was trial, provision While this has been amended since the language supra at issue not been has altered. See note 35.
334 its with own
not intended to the Commonwealth supply evidence, such as victim “any for other” provision “catch-all” evidence, phase in its case. impact penalty under the by Appellant introduced Id.39 As the evidence functioning to his intellectual catch-all circumstance related him, the prior that mother had abandoned and the fact to rebut tending have been admissible as assault would not this presentation.40 involving the consistent with earlier decisions
39. This rationale was
9711(a)(2).
example,
v.
scope
in Commonwealth Abu-
of Section
For
Jamal,
188,
(1989),
that the
while the Court stated
521 Pa.
(2004)
McGill,
1022).
(citing
Next, Appellant
prior
contends that
counsel rendered
in failing
object
ineffective assistance
to
and
on
argue
appeal
jury
that
the
to
unconstitutionally failed
consider and was
from
11
impeded
considering
age
years,
of 16
months and
24
as
days
constituting mitigating
circumstance.
In framing
this argument, Appellant asserts that his chronological age
a mitigating
great
factor of
that
weight
.must be consid
sentencer,
by
ered
the
that
and
the failure of the
jury
accord such factor any weight
rights
violated his
the
under
Eighth and Fourteenth Amendments of the United States
Constitution.47 Appellant
argues
also
that the court improper-
"puzzle
This is not an instance where counsel would have had to
out
theory”
raising
the
appeal,
suggested
the issue on
as
in the Concur-
ring
Dissenting Opinion
and
authored
Mr. Justice Castille. As
noted,
(who
attorney
trial
litigated
counsel
was the same
who
the direct
appeal) specifically objected
proposed
at trial to the relevance of the
rebuttal.
note, parenthetically,
47. We
Supreme
that
the United States
Court
recently agreed
constitutionally
permissible
re-consider whether it is
persons
juveniles
capital
execute
who were
at the time of their
(Mo.2003),
Roper,
offenses in State ex rel. Simmons v.
ly point mitigator with subjective linking age experience; rationally and effectively capable an individual is at which cautioning and importance; in matters of a decision making or empathy sympathy. persuaded by not to be jurors improperly that the prosecutor maintains Finally, Appellant circum- mitigating jury ignore that should argued age. stance cir mitigating as a statutorily recognized
isAge 9711(e)(4), be entitled to cumstance, may § see 42 Pa.C.S. v. Okla Eddings See weighing process. in the significance 869, 877, 1 L.Ed.2d homa, 71 S.Ct. U.S. time, age treat (1982). has declined to At the same this Court wholly within viewing it as a factor mitigator, se per v. sentencing authority. of the See province 218, 231-32, Williams, A.2d Such individual’s that an premise is consistent with treatment to different consideration may be entitled chronological age factors, maturity, including, a number of depending and the circumstances history, criminal sophistication, 557, 610 A.2d 129 N.J. Bey, State generally offense. See (1992) defen noting (collecting “[a] cases 842-43 discretion to jury of its age dant’s does divest young factor mitigating applies”).48 not the age determine whether or Appellant’s age argued the prosecutor While circumstances factor given not be a determinative should demeanor, argument his courtroom of the offense and therefore, and, argument to defense evidence response Basemore, at 869. Pa. at permissible. See were to Moreover, jurors they the court instructed *53 crime as a the time of the youth at Appellant’s consider and explained: circumstance mitigating (Jan. L.Ed.2d 1204 granted, U.S. 124 S.Ct. cert. 2004) (No. 03-633). Nevertheless, it mitigating factor where jury required to find a Rizzuto, 566 by stipulation. Commonwealth v. presented See has been Pa. There is no case defining mitigating law circumstance of states, youth. pertinent A “The provision youth of the defendant at the time of the age crime.” No is explicitly set forth. you think of youth, depiction
When absent a of they what Act, mean by “youth” common, in the terms ordinary understanding yourselves, of that to it word could chronological mean or It specific age. could mean mental maturity, self, to take care ability of one’s a mental state sufficient to make a decision in a matter of to consequence one’s legislation self. Various throughout indi- States that you cates can at the age vote now of 18. say Some kids under 21 can drink beverages. alcoholic You might yourselves, ask in the sense meaning I, youth, did back in looking my [w]hen terms of day-to-day back in living, looking my terms of éxperienee seeing people my friends, raised family my I when did arrive such an that I age fully capable to effectively and rationally make a decision in matters of importance myself? this, I say
And are all you intelligent human beings. There is no definition of youth. the term The provisions of the Statutory Construction Act in force presently in the Com- monwealth of Pennsylvania say this: “In the absence of a definition, in a common, words statute are to take their ordinary, everyday meaning.”
So the question you is, must in your answer minds in your minds individually [w]hat and collectively constitutes terms, meaning ordinary everyday language, every- day meaning “youth”? word It many means things many people.
In general, it is proper jury for a draw knowledge and common experience conclusion, to reach a provided that the produced evidence at trial is not influenced by facts jurors outside the record known to personally. Here, judge’s instruction them to allowing youth reference in terms of experience common did not preclude the consider ation of age as a mitigating circumstance. Accord- *54 for to failing ineffective counsel cannot be deemed ingly, prior closing argument the object prosecutor’s and raise as issues instructions on the trial court’s age mitigator, the concerning circumstance, failure to find it. jury’s and the such jurors green that certain of the wore the fact
Citing
trial,
their
symbolizing
sympa
the
at the
beginning
ribbons
children murdered
of African-American
thy for families
Atlanta,
rendered ineffec
prior
counsel
Appellant argues
a full and
voir
failing
appropriate
to seek
assistance
tive
decision
sentencing
as to
their
jurors
of those
whether
dire
making
support.
such a show of
be compromised
would
claim,
object
that:
counsel
acknowledges
prior
Appellant
ribbons;
jurors
wearing green
fact that the
were
ed to the
chal
and in connection with a
jurors;
those
questioned
court
trial,
on
asserted
prior
the fairness of the
counsel
lenge to
the ribbons in con
jurors’ wearing
that the
appeal
direct
him a fair trial.
denied
junction
pre-trial publicity
with the
Despite
A.2d at 1280.
521 Pa. at
Hughes,
See
claim,
and the current
appeal
the issue on direct
similarity of
not been previously
that the issue has
maintains
Appellant
guilt phase,
colloquy
the focus of the
litigated, as
in the
upon
penalty
is based
fairness
argument
the current
emphasizes
uniqueness
respect, Appellant
In this
phase.
from its determination
apart
decision
jury’s sentencing
of the
guilt.
however,
jurors,
of the individual
colloquy
The trial court’s
fair
ability
impartial generally.
their
to be
upon
centered
Moreover,
jurors
to
ultimately sequestered
trial court
influ-
any
outside
exposed
would not be
they
ensure
the same
underlying
upon
claim is based
Appellant’s
ence.
and,
circumstance,
ribbons
namely,
wearing
green
jurors
the fairness of the
to render
focuses
similarly,
function is distinct
sentencing
a jury’s capital
decision. While
role,
why
reason
perceive any
do not
from its
we
guilt-phase
impar-
into the fairness and
general inquiry
the trial court’s
the green
to the concern with
jurors
response
tiality
circumstance,
protect Ap-
in this
inadequate,
ribbons was
phase,
penalty
in connection with
rights
pellant’s
underlying
does not
one. As
provide
has not
appeal,
claim
addressed on direct
and as he
allega-
proffered
distinguish
present
a sufficient reason
tion,
cannot
assistance.
he
establish ineffective
*55
concerning
raises numerous claims
he characterizes
prosecutor’s penalty-phase argument, which
general,
prosecutor
as unconstitutional.
“comments
effect
do not constitute reversible error unless the unavoidable
jury, forming
be to
prejudice
such comments would
hostility
their minds a fixed bias
the defendant
toward
that
could not
the evidence
they
weigh
objectively
such
a true
determination.”
v.
penalty
render
Commonwealth
Johnson,
(1995).
384, 404,
97,
542 Pa.
668 A.2d
107
Such
that the
be
contextu
requires
assessment
remarks
considered
to the
ally, including
argument
responsive
whether
Freeman,
532,
closing.
defense
See
v.
(2003).
385,
noted, Appellant
413
As
casts his
claim as one of constitutional dimension. An improper closing
argument may constitute constitutional error
the prose
where
cutor’s comments “so infected the trial
as to
with unfairness
make the resulting conviction a denial of due
Don
process.”
637, 643,
1868, 1871,
v.
nelly DeChristoforo, 416 U.S.
94 S.Ct.
(1974).
Initially, Appellant asserts that the prosecutor “deliberately the jury” by emphasizing Appellant’s deceived courtroom de- meanor and the fact that he had taken notes throughout trial as bases for circum- rejecting finding mitigating Appellant’s age stances associated with intelligence. low In support, Appellant prosecutor maintains that the knew state, not his natural but calm demeanor was
Appellant’s rather, antipsychotic of the administration of product Fur- prosecutor’s request. medication administered at the knew, thermore, that the based Appellant argues prosecutor evaluations, that psychological the results of numerous notes, and that incapable taking meaningful Appellant was cartoons and actually “crudely such notes consisted of drawn scribblings.” childish emphasized
The summation defense counsel age demeanor and as follows: really understanding
I he has a true wonder whether of this consequences particular proceeding. nature and functioning easy by saying It’s to elevate an individual he’s of intellectual to be normal. appears at some sort level all the forgetting about the about Forgetting psychologist, many days, for so you presence have been reports, or not he opportunity have had the to see whether you *56 of or not he has the kind normally, functions whether understanding that creates in a a kind of mentality person hatred, malice, of of wickedness. psychologist really is about and what telling What I am is that this saying you affirms and confirms what damage. from a mild brain may suffering individual be some be, I it doesn’t take may have no idea. But Whatever to that He is an expert an the area come conclusion. an him. opportunity exhibit. You have had watch chronologi- He be 19 at the time may years age present than at functioning but he is no more cally, really truly of 3 or 4.... age remarks, trial defense counsel’s Immediately following jury, observing: court excused the Tinari, integrity Mr. in the interests of the [The Court]: trial, is up prefabricated either cooked or something sudden, stage All at the last taking place at the table. of a trial, out, pictures he a ruler some making up has on. so forth and so table,
Clear the Mr. Tinari. sudden, trial, juncture, at the at the end of at this All of he has Attorney’s speech, pictures pinned up District on his all everything else—very quiet—and writing pad the trial. during
[*] [*] [*] everything He is there. Clear the desk of making project Take ruler. pad pencil. but the and the happening. toys. I don’t know what is Take [*] [*] [*] nice, like, just All Make sure he has real right. pad conditions that existed all the trial. during kindergarten play you This is not with blocks and things, writing during know. He was like a mature adult all trial. I you, will read it to he wrote—
[Mr. Tinari]: what I I don’t want to know. All [The Court]: am—[Mr. Tinari]: says, “Mary It had a little lamb.” He better than that during Good. wrote
[The Court]: trial. an idea it you get Now like simulates child’s nursery. are Judge, you cynical.
[Mr. Tinari]: No, I am alive. [The Court]: King object. Mr. didn’t
[Mr. Tinari]: job Let them do the by thinking [The Court]: not on the of any basis theatrics but on the basis of the evidence.
[*] [*] [*] *57 sudden, All aof before the death it penalty stage, becomes a kindergarten. Very odd. brilliant. Very remarks, In response to defense counsel’s the prosecutor stated his closing argument:
Now, it’s a strange irony Mr.-Tinari can stand and up you talk to about childlike. I your Childlike? And bring Gentlemen, mind at this point, Ladies and what written: child, child, I I acted playing I was a when was When child; man, gave up but I became a I childish as a when pursuits. did,
Now, if and he you can look this defendant what did, say, found he and but that’s the action of a you what child?
Age your alone is no determiner. Use common sense. Gentleman, you it and if are strange, watching Isn’t Ladies case, particular person at all this from the calm who took after notes after notes to the three person spent *58 circumstance and to coun permissible responses were defense sel’s remarks.49
Next, Appellant argues prosecutor that the improper ly jurors to urged disregard they law arguing should not let “what is and his [Appellant] environment” affect decision, sentencing as such considerations are a discred “great ited relic of the that failed.” society Appellant main that, pursuant tains to the catch-all circumstance in Section 9711(e)(8) Code, of the Sentencing “what is and his environment” should have been at the center of jury’s decision, and that it was for the improper prosecutor urge to jurors disregard such consideration. The context of the prosecutor’s closing remarks was as follows:
In an ordered society, ladies and gentleman, you can do anything you long desire so as it doesn’t endanger or infringe rights on the of others.
With that in mind and sitting after here listening Mr. argument, Tinari’s it of the brings great visions society mind, failed. It brings Help me rather than help myself. excuses, He brings to mind and he wants to make an excuse of, out “It’s because of what he is and his environment.” are not prosecuting We this defendant because he is black. are not We him because he prosecuting grew at some up point his life in North Philadelphia and attended the Philadelphia school system.
No one here is indicting the Philadelphia system school the thousands people thousands of who find them- position selves the same as the defendant. Are they out Are raping? they out Are strangling? they out setting ablaze— Appellant’s mitigation theory premised upon was not his mental crimes; indeed, state at the time of the he did not invoke the mental 9711(e)(2), (3) status-related circumstances under Section of the Sen- Code, 9711(e)(2), (3). Rather, tencing § 42 Pa.C.S. Appellant was relying upon the "any mitigation catch-all circumstance of other con- cerning 9711(e)(8) the character of the defendant” Section Code, 9711(e)(8), Sentencing § 42 Pa.C.S. as a basis for evidence respecting functioning. his level of intellectual
[*] [*] [*] child—children? nine-year-old a consid Society implicated to the the reference Great While *59 eligibility statutorily death-penalty defined eration outside the criteria, aimed argument the prosecutor’s and selection Appel associated with credibility the and challenging weight such, under As mitigation. lant’s background-based unduly prejudi commentary precedent, Court’s to cial, failing found ineffective counsel cannot be and on See Common object challenge appeal. and raise such (2003) Stokes, A.2d Pa. wealth v. that the comments (concluding prosecutor’s (plurality opinion) alia, permissi constituted Society, concerning, inter Great mitigat jury to disfavor defense urging ble oratorical flair ion).50 prosecutor improper that the also contends
Appellant their not enter into mercy should ly jury advised which, constituted according Appellant, to sentencing decision a central sentenc negated of the and misrepresentation law Here, stated: prosecutor ing consideration. consider the [Appellant] found that didn’t already
You have already found that of Rochelle You have welfare Graham. every choked willfully, deliberately, premeditatedly he her, body her debris and placed of life out of than on breath kill. that he intended to it. You have found ignited [*] [*] [*] Rochelle happened If can look at Graham you what being go beyond are asked to say stage you that at this rational, you are human, beyond being you go are asked him mercy: are asked to show you to come and pray, asked Gentleman, mercy begets I Ladies and you, submit mercy. against handled the case Notably, prosecutor in Stokes also Appellant.
If can you look at the facts of this case and decide that the perpetrator you found guilty first-degree murder de- it mercy, serves is not for me to that he say doesn’t. prosecutor’s argument The against mitigation prevent did not it, from jury considering significantly, the prosecutor’s request jury focus was on his that the any balance consider- mercy against offense, ation of the circumstances of the one of aggravator, which was an namely, murder committed during the perpetration felony. of a
Similarly, asserts prosecutor that the pre the jury considering vented from mitigation by argu evidence for a death ing sentence based nature of the offense. In particular, Appellant highlights portion prosecu argument tor’s which he stated: “when someone or any member of this community did, strikes in the fashion that you Mr. Hughes, we will not stand for it. We will not issue *60 Here, another chance.” again, prosecutor’s the argument did not preclude jury evidence, the from considering mitigation it although was directed to advocating against it. In the same vein, Appellant argues prosecutor that the improperly circum vented the individualized sentencing requirement of the Eighth and Fourteenth Amendments of the United States Constitution by asking jury the to upon focus the existence of malice, present which is in any murder. The references on Appellant which bases his claim were as follows: you Can think of a gruesome more case? you Can think of a situation where there awas reckless disregard, hardness heart, a mind fully conscious of its purpose? the prosecutor’s argument While to referred elements pres- murder, ent in any he did not ask the jury aggravation to find without reference statutory to the aggravating circumstances. Indeed, to the contrary, the prosecutor stated: and,
I am to asking you look at the evidence if you find that sodomized, Rochelle raped, Graham was and strangled, then yourself ask the question, were these done in acts the of a perpetration felony? sexual involuntary deviate rape, felonies:
You have two intercourse. that, circum- aggravating one you to have you say yes
If stance. context, prior in counsel will evaluating argument
Again,
to
failing
object
prosecu
deemed ineffective
not be
appeal.51
raise such issue on
tor’s remarks and
Next,
prosecutor engaged
contends that the
Appellant
alia,
required
inter
that: death was
by arguing,
in misconduct
are
society”
an “ordered
which
“weak”
to preserve
life
be to
a verdict of
would
“strong”;
from
protected
and,
out”;
up
“stand
loud
jury
should
“cop
“back out”
defendant, defense
clear,”
message
to the
and send
Relying
sentence.
and return a death
society,
counsel and
LaCava,
Pa.
I back a bit go want there always strong people There will be society. ordered always protected there will be always people, be weak will The idea people. be always unprotected there will people, and curb the society protect is to weak any ordered strong. can do gentleman, you ladies and society,
In an ordered it or long endanger desire so as as doesn’t anything you of others. infringe rights on the *61 prosecutor jury the misled the Appellant also contends that age mitigating arguing Appellant's did not constitute a improperly that time of trial. A review he was not a child at the circumstance because however, remarks, closing not reveal this prosecutor's does Rather, upon Appellant’s argument. prosecutor remarked court- the then,” demeanor, asking, rhetorically “where was the child room closing argument emphasis in his response defense counsel’s to “present comportment argument that his Appellant's courtroom abilities,” mitigating circum- age present mental constituted [and] commentary a re- prosecutor's was thus allowable as The stance. sponse. jury aggravating the to find that the circum- asking After circumstances, mitigating arguing the outweigh stances balance, prosecutor not alter the Appellant’s age that did such continued: now, now, stand loud and cop up
Don’t back out don’t out Tinari, defendant, society tell this the great clear. Tell Mr. dead; or any community when someone member of is did, Hughes, that you strikes a fashion Mr. we will not issue another chance. stand for it. We will pros- to the remarks of the Contrary Appellant’s argument, attempt expand jury’s ecutor did not to focus outside circumstances, rather, but were centered aggravating during the circumstances of the offense—a murder committed Moreover, of a perpetration felony. prosecutor’s designed mitigation efforts to counter trial counsel’s were and intel- argument premised upon Appellant’s age such, are unable to functioning. lectual As we conclude unduly prejudicial. Appellant the comments nonetheless were that the statement that the prosecutor’s jury asserts should return a death sentence to send a to defense counsel message penalized Appellant exercising right for his to counsel. Simi- larly, Appellant prosecutor contends that the told improperly words, had jury Appellant, through forfeited his to be right among living, urging jury called to return penalty punishment the death assertion of Appellant’s testify. his constitutional to The reference right Appel- to obviously inculpatory lant’s words concerned the statements he to the central to the gave police, which were Common- proof. wealth’s moreover,
Appellant, mischaracterizes the prosecutor’s clos to the ing. respect sending message With reference counsel, trial prosecutor responding trial counsel’s words, closing.52 As to the reference to prose cutor stated: possible comparison
52. While it draw the same between the argument prosecutor’s message” arguments and the "send that this criticized, see, e.g., Crawley, Court has 559, Commonwealth v. (1987) (stating extremely prejudicial that ”[i]t is *62 you here, asking standing gentleman, are not ladies We do, to asking you are vengeance. for kind of What we any Look at is to look at facts. gentleman, ladies and facts, this facts, yourselves ques- at the ask looking and in actions, defendant, Hasn’t, then, his through tion: deeds, to words, right forfeited his through his through to according do this living? you And among be called law. jury argues prosecutor urged also “gruesome,” because the offense was penalty the death
impose noted, As an circumstance. aggravating which is not of the offense mention that the circumstances prosecutor did however, urge imposition he did not gruesome; were based such consideration. penalty upon the death im that the prosecutor contends Finally, Appellant penalty to the death interjected factors extraneous permissibly by relying emphasizing youth/age the victim’s statute Appel a death. authority imposing Biblical as basis upon following: centers argument lant’s gentle- point, I mind at this ladies bring your And child, men, I I was a when was what is written: When child; I a child, but became as a I acted as a when playing man, pursuits. I childish gave up written, the least of thine ye It Inasmuch as do this to children, me. you do it unto (cid:127)was nine-year-old girl A who
Who are the least of these?
A nine-
the least of these?
on her
to school? Who are
way
jury
return a death sentence as
prosecutor
for a
to exhort a
officers”),
precedent
message
judicial system
the same
has
to the
or its
jury to
distinguished
prosecutor
in which the
asked the
send
instances
prosecutor asked the
message
from those where the
to the defendant
DeJesus,
message
judicial system.
580 Pa. at
jury
to the
See
to send
Peterkin,
322-23,
at
(citing
Who are the least of these? That she followed *63 him, her, her, drug that he that he induced that he enticed nine-year-old her? are the least of these? A or a girl Who to in girl things nine-year-old has two do life. One is to be a The other is to to a girl. grow up be woman. This was taken away. remarks,
Notably, immediately following prosecutor these the cautioned the that he not jury seeking vengeance, was but the to look at asking jury the facts and determine whether the right defendant had forfeited his to life to the according law. trial, acknowledged by Appellant, As at the time of his the penalty statute did not contain an aggravating circum death 22, upon age stance based the of the Act of victim. See Dec. 1989, 727, 99, (16) § P.L. No. 2 (adding subparagraph to 9711(d), Section as an providing aggravating circumstance the a child 12 years age). where victim was under While the prosecutor repeatedly referenced the victim’s age during fact in argument, this evidence and had been referred throughout to the trial. More the important, prosecutor did not the to return a urge jury death sentence based upon instead, noted, as age; requested victim’s he that it weigh mitigating aggravating circumstances.53
Moreover, although this Court has announced a per se rule prohibiting upon reliance the Bible to support imposition of the death penalty, see Commonwealth v. Cham bers, 558, 586, 630, (1991), 528 Pa. 599 A.2d 644 this rule was trial, not effect at the time of Appellant’s and trial counsel cannot be deemed ineffective for failing anticipate change in the 285, law. See Commonwealth v. Copenhefer, 553 Pa. (1998) 315, 242, Cook, 719 A.2d 257 (citing Commonwealth v. and, noted, responding mitigation as were directed at to the defense argument. mentioning age also asserts that particu- the victim's larly inflammatory light disappearances and murders of occurring African-American children Appel- Atlanta at the time of jurisdiction, lant's trial. The existence of these events in another however, preclude prosecution did not serve remarking from upon surrounding present the circumstances the murder in the matter.
352 (1996)). 639, se per Absent 676 A.2d 651 for its rule, subject prejudicial is to assessment argument In this effect, accordingly. conduct evaluated counsel’s with flair employ oratorical permitted regard, prosecutor greater degree is afforded a argument during closing phase, presumption of a as penalty in the context latitude longer applicable. is no See Commonwealth of innocence 1231, With Pa. Ligons, trial, references, at the time of to Biblical respect narrowly commentary falling within treated such this Court to a permitted prosecutor flair limits of the oratorical Stokes, Pa. at penalty. for the death See arguing Chambers, 644.54 231-32; Pa. at 599 A.2d at A.2d into consideration that the taking treatment and such Given vengeance, asking that he was stressed prosecutor the facts based jurors make their determination *64 law, that suffered Appellant to conclude and the we decline of coun to establish ineffective assistance sufficient prejudice sel. phase jury the penalty further contends had unconstitutionally jury they advised the
instructions
circumstance before
mitigating
unanimously agree upon
to
367,
v.
486 U.S.
Maryland,
it effect in
of Mills
giving
violation
(1988).
1865-66,
In
375,
1860,
353
406, -,
2504, 2513,
tiveness in an to avoid a of waiver of this generally constitutional claim. See Commonwealth v. Wal- (1999) lace, 397, 406, that, 555 Pa. (noting properly supported the context of a claim of pleaded ineffectiveness, the merits of the claim be underlying may avoided). noted, addressed and waiver As the decision law, Mills constituted a new rule or in the and counsel change cannot deemed failing anticipate be ineffective such a Gibson, change. See Commonwealth v. issued, however,
A.2d Mills was while appeal pending, although direct after briefs disposi- had been filed and the case had been submitted for that, Appellant argues tion. under the then-available relaxed rule, waiver counsel could have raised the issue in this Court. case, Assuming, given procedural posture prior issue, counsel could have raised the Mills this Court has declined to be bound the Third holding Circuit’s Frey, which, noted, jury respect- addressed a similar instruction ing the finding mitigating circumstances. See Common- *65 Breakiron, 519, 7, 1088, wealth v. 556 Pa. n. 729 A.2d (1999); Cross, 603, 612-14, n. 7 Commonwealth v. 555 Pa. (1999). 333, A.2d Consequently, 337-38 is not enti- Appellant tled relief on this issue.
Appellant testify did not during penalty phase and, result, a the trial as court cautioned the that: jury
You should not decide out of or any feeling vengeance prejudice toward the that defendant. Bear well mind he did not take the during stand at this penalty stage from the fact any guilt not to infer
juncture, you and are Fifth Amend- asserting and his remained silent having heretofore advised. rights, you ment were that the should “bear well jury the references Emphasizing should testify, they that the defendant did mind” fact, argues Appellant presently from such “guilt” not infer against to use his silence jury invited the that the instruction hiding something that he was sentencing by inferring him at non-existence, existence, weight or relative to the relative Here, the instruc circumstances. mitigating aggravating that is now charge tion the no-adverse-inference paralleled waiver, in where guilt-phase required, express absent See, v. testify. e.g., defendant does not Commonwealth 634, 640-44, 220-22 543 Pa. 674 A.2d Thompson, better time, have been may At the same the court’s instruction sentencing role in the jury’s with reference phrased determination, instance, explained could have the court aggravating jurors may any not infer the existence that the circumstance any mitigating or decline to find circumstance Nevertheless, we testify. failure to upon Appellant’s based guilt to conclude that the inexact reference decline Faulk prejudicial. circumstance was Cf. (1999) ner, (discussing claim under the Post-Con of an ineffectiveness cognizability Act in terms of it affected viction Relief whether “guilt penalty”). of the death the trial court’s curative challenges also sentence, of a life which concerning meaning
instruction in the context: following was issued something is not imprisonment life [Defense Counsel]: custody his entire life is under easy. spent It means in the of the authorities— custody I Objection. request would Attorney]: District [Assistant curative instruction. of life means the or not a sentence Whether
[The Court]: should not inquiry you life is an person’s duration of yourselves concern with.
355 to the duration of the sentence description respect The with by any Judge for a term of life court or a this imposed not a Pennsylvania, length of of same is of a life judicial length decision. The sentence deter- by government, ap- mined the executive branch of which Board of Pardon and Parole. points State event, any you yourselves are not to concern with what a is in a determina- meaning reaching life sentence to tion. Set that aside. You are deliberate and determine is life or proper punishment imprisonment whether death, not concerning yourselves question with life, than whether life is or life is less life. respecting raises two distinct claims instruc
tion, that it to the initially asserting jury misled both as meaning sentencing of a life sentence and its role incorrect that he be for At the time ly indicating eligible parole. would trial, however, an concerning where issue arose sentence, length obligated the life the court was should not concern jury they advise themselves with imprisonment might whether defendant sentenced to life be Edwards, 134, 158-59, 521 Pa. paroled. See Commonwealth case, although 555 A.2d 830-31 In this the trial instruction been phrased court’s could have better and more concise, Thus, it existing authority. was consistent with coun cannot be failing object. sel deemed ineffective for
Appellant also
that the instruction
suggests
prej
udicial because the
future
prosecutor argued
dangerousness to
jury,
required
thus the court was
to instruct the jury,
Carolina,
consistent with Simmons v. South
U.S.
(1994),
S.Ct. would be for if ineligible parole imprisonment. sentenced to life At the trial, juries time of Appellant’s prohibited receiving were from concerning parole, pardon, information and commutation. See 135, 160, Henry, Commonwealth v.
(1990). Furthermore, until Simmons was issued five final, after years Appellant’s conviction became and it has been rule interpreted creating new of law. See O’Dell v. Netherland, 151, 153, 521 U.S. 117 S.Ct. (1997). As counsel cannot be deemed ineffective
L.Ed.2d 351 law, in the the failure to anticipate change failing *67 in not constitute a an instruction this case does request Christy, for relief. Commonwealth v. ground See A.2d 889 that the trial court un additionally argues that is constitutionally jury capital punishment instructed the objected that trial counsel to way, although the American and instruction, the issue on direct pursue appeal. he failed remarks, trial argued: counsel During closing an say eye that what we must do is system Our doesn’t tooth, that must eye avenge an and a tooth for we another That isn’t the by killing person. death of one are society, especially you talking of a civilized when system person Hughes’ being. about a of Kevin
[*] [*] [*] further, that the you, elaborating any I without suggest to make that you your time has come for determination not the American proper way, death for death is not it’s way. court commentary, to such the trial advised
Responding jury: in’ that a reference in argument
Bear mind there was well the death is not the American of life. penalty way of present an assertion is inconsistent with the status Such Pennsylvania in the and these the law of America. States .United recently by
In the number of decisions decided quintuplet Court, in Supreme Washington, States Court United that at least of the Assem- made the observation General legislative throughout and the bodies States bly’s States, states, there had laws being adopted these United in criminal calling capital punishment proceedings for the various forms of homicide. involving Likewise, judicial body the eminent these United States America, years in a decision handed down some or 5 capital punishment found that is not cruel and unusual ago, Amendment, of the punishment Eighth within ambit that the could enact for the legislation calling imposi- States tion of standards capital punishment, provided proper govern set forth to the exercise of guidelines were jurors in a decision reaching respecting capital discretion punishment.
So, to is not the American capital punishment assert is a statement at this time in our way society which totally depiction legal capital inaccurate stature judicially, punishment socially, Pennsylva- otherwise nia and America. contention,
Contrary to the instruction not an rather, endorsement of the death but penalty, response *68 argument. counsel’s Nor did the instruction absolve the jury in responsibility determining from its the existence of aggra- vating mitigating circumstances. next that
Appellant contends he was incompetent and, during post-verdict motions and on direct a appeal result, that he post-trial is entitled to file new motions and a new direct nunc appeal, pro Appellant tunc. frames this alternative, instance, claim in the in the first maintaining counsel in prior failing was ineffective to apprehend and discover evidence of condition. Alternatively, Ap pellant argues that the in possession Commonwealth was of evidence of his incompetence through the records maintained Corrections, by the of Department specifically, mental health claim, records. of his support Appellant cites to affidavits members, family indicating that he continued to suffer from home, delusional beliefs he would be sent prison indicating behavior, records that Appellant psychotic exhibited disabled, severally was mentally involuntarily and had been committed under the Mental Health Procedures Act on re Furthermore, peated occasions. Appellant references an affi Fox, M.D., from a psychiatrist, davit Robert A. stating that he incompetent during the timeframe covering post-trial appeal. motions and direct forego appellate a seeks to further
Where
defendant
competence
of his
or collateral
determination
proceedings,
Peyton,
Rees v.
U.S.
rights
appropriate.
his
is
See
waive
(1966)
1505, 1506,
312, 313-14,
(per
Finally, Appellant argues develop, present substantial failing investigate, illness, mental concerning evidence mitigation, particular, to the respect brain and his traumatic childhood. With injury, evidence, to, inter alia: Dr. mental health cites “a indicated April initial evaluation which Camiel’s illness, psychotic of a major likely of a mental most possibility form”; from Philadel schizophrenic report or depressive Boxer, M.D., April Arthur D. from phia prison psychiatrist, reality, out of contact with noting Appellant was appearing rambling, “neurological confused and and exhibited health evaluation Gino symptoms”; prepared a mental Grosso, M.D., Appellant’s prior July referencing *69 he in a noting in 1977 and was psychiatric commitment state; testimo competency hearing and catatonic confused was “de Blumberg, Appellant of Dr. who concluded ny disturbed”; and the and reality” “profoundly tached from alternatively a due Appellant frames this claim as constitutional obligation process upon the Commonwealth's to dis- violation based upon Brady exculpatory regard, Appellant relies evidence. In this close (1963), Maryland, 83 S.Ct. 10 L.Ed.2d 373 U.S. possession maintaining mental that evidence of his illness was Corrections, Commonwealth, there- specifically, Department and however, disposition, it is have been disclosed. Given our fore should necessary to address claim. Saul, opinion of Dr. diagnosed who Appellant as having illness, psychotic addition, namely, schizophrenia. In Appel- lant has submitted affidavits from Patricia Fleming, clinical psychologist, who interviewed Appellant, and administered psychological tests, and neuro-psychological opined and Appellant is psychologically, emotionally, and im- cognitively paired, and has been so throughout his life as a result of trauma, childhood major mental illness the form of schizo- phrenia, organic brain damage. Dr. Fleming character- ized Appellant suffering from an extreme mental and emotional disturbance. Appellant also submitted an affidavit Fox, M.D., from Robert A. a psychiatrist, who diagnosed Appellant as suffering from schizophrenia, major mental illness, and thought Fox, disorder. According to Dr. Appel- lant suffered from schizophrenia and brain damage during his life, entire including the time of the offense.
Apart from the evidence, mental health Appellant prof- also fers evidence regarding childhood, his traumatic which he claims was marked by severe privation and physical and mental abuse. Specifically, Appellant offers affidavits from family members, who testify mother, would that Appellant’s Bunn, Rebecca suffered from schizophrenia and was a chronic abuser, substance spent any available money drugs on alcohol, encouraged her children to drugs, use forced them to her, buy drugs for and disappeared for weeks a time. addition, the affidavits indicate that Ms. Bunn sexually abused Appellant, maintained relationships with various men who both physically sexually abused Appellant, and attempted to commit suicide a number of times in presence of her children. The affidavits reference an occasion when and a younger brother overdosed on Ms. Bunn’s pills and were hospitalized. The affidavits also assert that Appellant abandoned when Ms. California, Bunn moved to and that he and his siblings were removed California Children and Youth Services and placed in foster care until being returned to the care of Appellant’s grandmother in Philadelphia. Ac- affidavits, cording upon returning, Appellant and the *70 360 chaotic house- to a violent and exposed
other children were
cords,
abused.
mentally
and
hold,
electrical
beaten with
merely proof
that such
responds
The Commonwealth
during
presented
of similar evidence
was
quantity
greater
the Commonwealth
respect,
In this
hearing.
penalty
the record
incorporation into
trial counsel’s
emphasizes
testimony
guilt
from
and
certain facts
penalty phase
years
age,
that:
was
phase,
particular,
come
birthday;
of his
had
days short
17th
and several
months
being
after
leaving
result of
California
as a
Philadelphia
mother;
uncles and his
lived
his
his
had
with
abandoned
2-year
of a
mentality
child
acted as a
with
grandmother;
abilities. Further-
writing
and
old;
reading
had limited
incorporated
notes that counsel
more, the Commonwealth
Wilson,
intel-
indicated that
Dr.
who
testimony of
level, his reflective
average
at a low
functioning was
lectual
achievement
his academic
lacking,
skills were
cognitive
level,
illiterate,
thinking
was
he was
elementary
at an
child,
that mild brain
young
and like that of
concrete
be ruled out.
could not
damage
presented
that trial counsel
concluded
The
court
PCRA
time, and
at the
that he had available
health evidence
mental
regard-
sufficient information
with
jury
provided
that the
reject
or
accept
health to either
mental
ing Appellant’s
that it was not
explained
The court
circumstance.
mitigating
would have
mental health evidence
that additional
persuaded
relied
reports
and noted that the
findings,
jury’s
altered the
prepared
were
petition
and his PCRA
by Appellant
“conclusive
could not be deemed
the murder and
after
years
ago.”
20 years
that occurred
regard
proceedings
with
an
to conduct
obligation
counsel has
general,
reach reasonable decisions
or
investigations
reasonable
unnecessary. See Strickland
investigation
particular
make a
2052, 2066,
104 S.Ct.
466 U.S.
Washington,
v.
Basemore, (1984);
v.
L.Ed.2d 674
penalty
In the context of
case,
thoroughly
duty
has a
counsel
capital
of a
phase
Taylor,
see
Williams
background,
a defendant’s
investigate
*71
396,
1495, 1515,
362,
120
While presented by that degree, to some with petition overlaps, guilt from the testimony certain incorporated counsel when he relevant, stability, family relationships, and the like will be emotional surrounding mitigating the commission of will circumstances as Investigation fulfillment of these func- offense itself. is essential to tions. Indeed, 4-4.1, the ABA cmt. ABA Standards Justice for Criminal ABA quoted place since 1971. See standards above have been Relating Project Justice, to for Criminal Standards on Standards § 4.1 Defense Function (above) duty foregoing, to counsel’s light the textual reference In of the penalty phase preparation not consti- investigate part does as application of a new standard. tute a retroactive attorney represented Appellant at acknowledge 57. We that different nevertheless, any assuming hearing; even the absence the transfer counsel, testimony subject the notes of on this between communication prior proceeding were available to trial. from that in particular, low level of intellectual func- phase, Appellant’s brain tioning and the existence of a possible injury, Here, proof substantially current is different. there is evi- schizophrenia, major of chronic mental dence illness and disorder, thought expert testimony as as con- allegedly well firming injury. proof, believed, the existence of brain if This have been sufficient the mental-health implicate would mitigators, namely, was under influence of disturbance, an extreme mental or emotional and that his criminality of his conduct or capacity appreciate con- it to form requirements substantially law 9711(e)(2), and, (3), event, § see 42 impaired, any Pa.C.S. been would have admissible under the catch-all circumstance. Basemore, 292-93, 560 Pa. at equal A.2d 737. Of Cf. the evidence traumatic import, concerning Appellant’s child- hood is detailed than considerably briefly more alluded to trial. uncle at we do not Consequently, view merely the current proof cumulative of previously In it presented. regard, is notable that the penalty-phase one, determination is a see qualitative Commonwealth v. Mil ler, (2002), in which the weight particular detail of a presentation likely to upon the impact process.58 light deliberative of such evi dence, a genuine dispute factual respect exists with to coun proof, sel’s awareness of the the nature and extent of his investigation, and whether the decision to not present evidence was founded strategic reasonable concerns. *73 Stanley, See Commonwealth v. (1993). Thus, an evidentiary hearing required is to allow
Appellant to this claim and the develop to assess reasonable ness counsel’s actions.
Accordingly, the order of the is PCRA court vacated and the matter is for additional proceedings remanded consistent this opinion. with
Justice CASTILLE files and concurring dissenting in opinion joins. which EAKIN Justice Notably, jury any mitigating 58. the did find not circumstances. CASTILLE, concurring dissenting.
Justice
is not entitled to Post Conviction
agree
appellant
I
that
(“PCRA”)1
phase
relief
his
or
pre-trial
guilt
Act
on
Relief
claims,
agree
Majority’s
not
the
non-waiver
albeit I do
with
the
respect
penalty
to
of those claims. With
to
approach
two
on
I
entitled to a remand
agree
appellant
is
phase,
mitigation
respecting
claim that counsel was ineffective
evi
dence,
the
I
make clear that
Majority,
but unlike
would
the govern
must be
to
according
counsel’s conduct
evaluated
in
and not
of later-announced standards.
ing
light
law
to the
remand
scope
penalty phase
I am in dissent as
the
to remand
I
with
decision
respectfully disagree
because
of appellate
claim of ineffective assistance
counsel
appellant’s
to
court’s
on the Common
failing
challenge
ruling
trial
Furthermore,
other
rebuttal evidence.
I have
con
wealth’s
appellant’s
to certain of
respecting
proper approach
cerns
I
points
claims. write to address these various
phase
penalty
divergence.
First,
to
claim
appellant’s
with
multi-faceted
involv-
respect
trial, the
competence
Majority correctly
his mental
to face
ing
previously litigated,
claim is
competency
holds that appellant’s
issue”
raises con-
appellant
and then turns to
“different
assessing proof
competen-
cerning
respecting
standard
Majority
question
at
The
notes that
cy. Op.
778.
incompetence
claim of incompetence qua
defaulted
whether
be
under the PCRA has divided this
may
deemed waived
Court,
to
majority
emerging
Op.
with no
date.
778-
view
(Pa.2004)
By
the then-
effect of
consideration of
retroactive
unnecessary
Cooper
rule
from
v. Okla
emerging
federal constitutional
new
(1996),
homa,
134 L.Ed.2d
116 S.Ct.
517 U.S.
assessing compe
for
provides
the standard
today
which as
Santiago
accept
if I could
op.
tence. See
778-81. Even
claims, I
competency
return to relaxed waiver
proposed
defaulted claims
encompass
extend that doctrine to
would not
Relaxed waiver
competency
standard.
involving
constitutional rule issued
permit
instance
new
would
retroactively on collateral
operate
Supreme
U.S.
Court
the rule
review,
required
has not
though
High
even
Court
Both this Court
super-retroactive application.
to have such a
settled,
already
principled
Court
have a
Supreme
subject to retroactive application:
to rules deemed
approach
on direct
apply
pending
such
rules should
to cases still
new
review,
timely
pre
raised and
only
but
where
defendant
claim;
first
but
should
if raised for the
they
apply
served the
truly
attack
in those
rare instances
only
time on collateral
has
Supreme
explicitly required
the U.S.
Court
where
Louisiana,
470 U.S.
58 n.
See Shea
application.
(where
(1985)
1065, 1069 4,n.
S.Ct. to cases retroactively, applied it must be applies al decision *75 issuance, “subject, but on direct review time of pending waiver, error, course, and principles to established harmless Lane, 1060, like”); 288, 103 the v. 489 109 S.Ct. Teague U.S. (1989) on (discussing L.Ed.2d 334 limits (plurality opinion) trials on federal habeas applying new rules to review state 312, attack); Pa. 780 corpus Tilley, Commonwealth v. (2001) 649, that novel issue (discussing requirement A.2d Cabeza, 228, be v. preserved); Commonwealth (1983) (same). 146, 148 A.2d
It
to
a
where the
thing
procedural
is one
overlook
waiver
law,
to
quite
claim
settled
but
another
do so
foregone
involves
the fairness of a trial
impeach
to allow a new rule of law to
final,
so, under
judgment
properly
and a
that has become
regard,
in
the trial
In this
it
the law existence when
occurred.
that,
corpus
is notable
of federal habeas
review of
purposes
convictions,
state
the
has held that the
Supreme
U.S.
Court
fact that this
relaxed
to reach a claim
employed
Court
waiver
1860,
arising
Maryland,
under Mills
486 U.S.
S.Ct.
(1988),
preserved
Second, of necessity I must disagree
Majority’s
with the
nullify
decision to
the
provision
PCRA’s waiver
to reach the
appellant’s
Nevada,
merits of
claim premised upon Riggins v.
(1992)—another
U.S.
S.Ct.
that the rule but also to appeal, claims on direct only preserved not for first time state collateral upon claims raised waived “none” of the “slim and none” squarely attack falls on the end issued Supreme yet having Court not continuum. With claim, remarkable this defaulted like de ruling, such a claim, the ineffective should be treated as Cooper faulted it I then actually of counsel claim that is. would assistance failing for hold that counsel cannot be deemed ineffective (Aaron) Jones, Rol Riggins. supra; the decision in predict lins, supra.2
Third, disagree Majority’s disposition I respectfully with of counsel prem- claim of ineffective assistance appellant’s penalty phase ruling the trial court’s ised mitigation could rebut defense evidence with knifepoint appellant sexual assault com- concerning evidence an juvenile, on a minor female when he was assault mitted Op. in a consent decree at 792-97. disposition. resulted which merit in the claim that counsel Majority arguable The finds trial on challenged ruling have court’s rebuttal should reasons that a consent decree is Majority direct The appeal. juvenile prior delinquency of a conviction or equivalent rebutting the defense invocation adjudication purposes history prior criminal convictions significant of the lack circumstance, 9711(e)(1); thus, § see Pa.C.S. mitigating ruling underlying court erred in that the facts the trial mitigating *77 decree be admissible to rebut that consent would rejects the holding, Majority circumstance. In so the PCRA in v. reasoning court’s that this Court’s Commonwealth view Stokes, 242, 704, (1992), Pa. 615 A.2d 714 upheld 532 which juvenile adjudi- of delinquency of rebuttal evidence admission circumstance, support in a similar would also cations re- concerning juvenile of evidence crime which admission petitioner holding of There no harm to the PCRA in waived claims 2. is Court, Supreme event that the or this this ilk to be waived. U.S. Court, that a new rule is so fundamental as were to hold constitutional attack, super-retroactive application the PCRA on collateral to warrant cognizable exceptions specifically deems such claims to be to 9545(b)((l)(iii)). High § See 42 Pa.C.S. The Court has PCRA time-bar. Riggins a watershed rule. never held that is such
369 Majority in a consent decree. at 793-94. The Op. suited remands this claim for a on reasonable basis and hearing at prejudice. Id. 797. it difficulty Majority’s approach pays
The with the is that no governing presumed heed to the law that counsel is requiring light to be effective and that we assess counsel’s conduct in of assessment, i.e., requirement contemporary the Strickland3 of according that we evaluate counsel’s conduct to the law requirement existence at the time counsel had to act.4 The conduct be of light contemporaneous counsels viewed ly-governing any law is central rational assessment of a claim of ineffectiveness.
“A fair assessment of
attorney performance requires
every effort be made to eliminate the
effects of
distorting
to reconstruct
hindsight,
circumstances
counsel’s
conduct, and to
challenged
evaluate
conduct from coun-
Strickland,
689,
perspective
sel’s
at the time.”
466
U.S.
2052,
104
80
S.Ct.
L.Ed.2d 674. This is so because it is “all
counsel,
too
for a
tempting”
second-guess
defendant to
easy”
“all too
for a court
act or
particular
deem
merely
omission unreasonable
because counsel’s overall
did not
client
strategy
achieve
result his
desired.
Id.
Fretwell],
[364,] 372,
also Lockhart
See
506 U.S.
113
[v.
[(1993)] (Strickland
838,
S.Ct.
L.Ed.2d
Court
“the rule
adopted
assessment”
it
contemporary
because
recognized that “from the
there is a
perspective
hindsight
tendency
speculate
natural
as to
whether
different trial
successful”);
have
strategy might
been more
v.
Waters
Thomas,
(11th
1506,
Cir.1995)
46 F.3d
(“nothing
clearer than hindsight—except perhaps the rule that we will
judge
trial counsel’s performance through hindsight”).
Bond,
(2002).
33,
819 A.2d
(Pa.
Accord
Duffey,
Commonwealth v.
778-79
Washington,
3. Strickland v.
466 U.S.
104 S.Ct.
80 L.Ed.2d
that,
disposing
appeal,
4.
I note
of other
on
claims
this collateral
Majority
recognize
principle
contemporary
does
assessment.
See,
807-08,
e.g., op. at
*78
Eakin, J.,
and dissent-
2004) (Castille, J.,
concurring
joined by
to
failing
for
forward
counsel to be ineffective
“Deeming
ing).
not then-
that was
of law
objection
upon principle
an
based
second-
the
of perverse
essence of
sort
very
is the
governing
and its
under
not
Strickland
permitted
which is
guessing
(Castille, J., concurring
A.2d at 779
progeny.” Duffey,
principle
this bedrock
way
stating
Another
dissenting).
courts to
for
simply
place
attack is
is that collateral
issues,
counsel
trial
since
concerning
holdings
new
innovate
rulings.
those new
failing
predict
for
cannot be faulted
law when
decisional
controlling interpretive
There
no
direct
counsel filed his
or when
this case was tried
that the trial court’s
suggested
brief in
which
appeal
Indeed,
appeal
collateral
this
rebuttal
was erroneous.
ruling
substan-
the novel
case that would establish
very
be the
would
determining
the basis for
serve as
proposition
tive
would
It
years ago.
incompetent seventeen
counsel to have been
out the
puzzled
could
that direct
counsel
have
may
appeal
be
time,
for the first
accepted,
has
Majority
theory
failing
But,
counsel cannot be blamed
today.
since
years down
still seventeen
a decision
predict
faulted for
that counsel can be
I do not believe
appellate pike,
claim,
claims he
to the
opposed
failing
pursue
appeal.
on direct
actually
pursue,
did
reasons,
dis-
respectfully
I
For similar Strickland-based
to a separate
in relation
Majority’s finding,
agree with
claim, that counsel
the same rebuttal evidence
point respecting
because,
appeal
on direct
ruling
challenged
should have
juvenile
prior
Majority, as a matter of law
according to the
separate pur-
for the
decree was inadmissible
assault/consent
“catch-
under the
produced
evidence
rebutting
defense
pose
forth in 42 Pa.C.S.
circumstance
set
mitigating
all”
9711(e)(8).
that rebuttal
Majority holds
at 795. The
Op.
§
aspects
concern
cannot
mitigator
under the catch-all
evidence
by invoked
specific aspects
other than the
of character
But,
Majori-
again,
once
evidence.
mitigation
defendant’s
an innovative one which
of rebuttal is
ty’s holding
scope
on the
The
assessment.
contemporary
ignores
requirement
*79
of the
of rebuttal evidence under the
question
proper scope
catchall
an
in 1981
mitigator apparently
open question
1987,
and to the extent it
than open question
is
less
that is so
because
there is on the
today,
only
subject
what law
contrary
Majority’s
to the
view.
(e)(8)
recognized
This Court has
that the
mitigator
Section
effectuates the
Supreme
requirement
U.S.
Court’s
that: “in
cases,
capital
the sentencer
not be
[may]
precluded from
as a
considering,
mitigating factor, any aspect of a defen-
dant’s character or record and
of
any
the circumstances of the
offense that the defendant proffers as a basis for a sentence
Carolina,
less than death.”
Skipper
South
476 U.S.
(1986)
1669,
(citations omitted;
1
S.Ct.
L.Ed.2d
empha-
Bomar,
original).
426,
sis
See Commonwealth v.
573 Pa.
(2003);
Harris,
A.2d
851-52
Commonwealth v.
Pa.
1053-54
The “character” evidence
(e)(8)
approved under Section
has not been confined to the
sort of classic character evidence deemed admissible at trial—
i.e., it is not limited to evidence of
reputation
one’s
in the
community
pertinent
for
character traits. See generally Com-
Fulton,
(2003)
monwealth v.
blameworthy than is not the Commonwealth penalty phase, relevant at the is still false, “character” if or one-sided idly by to sit skewed obliged (e)(8) mitigator. under the Section presented information is Instead, may it rebut evidence. (e)(8) has been mitigator catchall
Although the Section
evidence, it
variety
of defense
permit
construed to
wide
statutory mitigator—i.e.,
finding
single
at best to a
leads
defendant, or
the character and record
convicted
offense,
mitigating.
should be deemed
the circumstances of
Thus,
particular
cannot
that each
bit
argue
the defendant
warrants
pursuant
he
introduce
Section
would
evidence
*80
very
the-
Given
statutory mitigator.
of a
finding
separate
a
Section,
a
certainly
it is
flexible nature of this
broad and
conclude that evi-
language
of its
to
reading
plain
plausible
(e)(8)
the door to
opens
character
“good”
dence of
Section
(e)(8)
of “bad”
character.
rebuttal evidence
Section
contrary reading,
of a mind to
adopt
if the Court is
Even
form
basis for
properly
any
cannot
interpretation
that new
so because
faulting
particularly
counsel. This is
retroactively
(e)(8)
char
construction of
Section
Majority’s
narrow
authority from
mitigator is inconsistent with
acter evidence
Rice,
question.
on the
Commonwealth
this Court
J.),
(2002)
Newman,
(plurality opinion by
A.2d 340
Pa.
denied,
155 L.Ed.2d
cert.
538 U.S.
S.Ct.
in
(2003),
claimed that
the trial court erred
appellant
evidence of his
penalty phase
if he introduced
holding that
family”
settlement
with his
sharing
“kindness in
civil
award
rebut
could
mitigator,
the catchall
Commonwealth
under
stabbings
in
“involvement
several
appellant’s
evidence
with
the court’s
argued
The
there
that
prison.”
appellant
in
while
him not to
his
ruling
present
led
erroneous rebuttal evidence
opinion,
In a
Madame
mitigation
plurality
evidence.
available
Eakin,
Newman,
this
and Mr. Justice
joined by
Justice
Justice
rejected the claim as follows:
summarily
at the penalty
case-in-ehief
During the Commonwealth’s
the Common-
prevent
moved in limine
phase, Appellant
misconduct.
presenting
Appellant’s
from
evidence
wealth
attempt
The
did not
to introduce this evi-
Commonwealth
planned
present
dence
its case-in-chief and
these
during
testimony
in rebuttal if
of his
only
Appellant presented
facts
trial
generous
kind and
character....
The
court
ruled
Appellant
good
if
offered
of his
character
evidence
case-in-chief,
during his
then the
would
to offer evidence of
bad character
be allowed
during its
conclude that
the trial court
rebuttal.... We
ruling.
did not abuse its discretion
Because
with
good
elected not to introduce
of his
Appellant
evidence
character,
present
the Commonwealth did
evidence
trial
prison
Consequently,
misconduct.
because the
Appellant deliberately
court did not abuse its discretion and
character,
chose not to
evidence of his
hold
present
good
we
is not
entitled to relief.
(record
omitted).
(emphasis
Although opinion Justice Newman’s Rice did not com mand a it is notable that none of the full majority, comple ment of in participating Justices the case took issue the with claim, plurality’s disposition of this particular Court penalty phase by denied relief a vote of 5-2. no Certainly, Justice suggested rebuttal character evidence at limited to penalty phase actually was evidence which rebutted the specific by factual assertions the defendant proffered his character.5 concerning separate responsive opinions Three
5. were filed in Rice: a concurrence by Nigro, separate concurring dissenting opinions Mr. Justice (now Justice) by Zappala then-Chief Justice and Mr. Justice Mr. Chief in Rice. analysis to Justice Newman’s
I continue to adhere However, counsel ineffective- the constitutional test for since in at the standards existence by ness assessment requires decisions, not it is litigation to make required time counsel was in expressed views opposing to choose between the necessary today’s Majority Opinion. and in the Rice plurality counsel appellate cannot deem matters is that this Court What in 1987 that argument an failing forward incompetent was summari- existing case law and which support found no comment—by this rejected—without dispute dissenting or ly counsel to a I not hold years ago. less than three would Court to the Court apply than that should standard which higher to the' I not remand this sub-claim would Accordingly, itself. because, at the time under the in existence court law PCRA on act, that counsel ineffective had to the notion counsel merit. arguable lacks appeal even Majority’s my respectful disagreement I also note with claim, “there remanding unnecessary suggestion, pursue failure to be a reason for counsel’s appear does not at I appeal.” Op. issue on direct the [rebuttal evidence] objective an only not because disagree with this observation given obvious counsel’s decision is indeed rational basis for time, because at the but also state of the law relevant governing account for the suggests it does not approach in ineffective a claim sounds considerations when applicable those I described appeal. assistance of counsel on have considerations as follows: under the Sixth ineffective [appellate
To prove
counsel]
Amendment,
prove
have had to
PCRA counsel would
... but
claim
merit of each waived
only
underlying
Robbins,
standard. Smith
satisfy the entire Strickland
(2000)
375
prevail
order to
on his claim of
assistance of
ineffective
counsel”);
527,
v.
appellate
Murray,
Smith
477 U.S.
106
2661,
(1986). Moreover,
91
S.Ct.
L.Ed.2d 434
... even
an
identifying
“arguable”
issue of
merit does not
prove
appellate
unreasonably,
counsel acted
or that
en
prejudice
because,
sued. This is so
Supreme
U.S.
Court has
recognized, appellate
constitutionally
counsel is not
obliged
every
raise
conceivable claim for relief.
may
Counsel
forego
arguably
even
meritorious issues in
of claims
favor
which, in the exercise of
objectively
counsel’s
reasonable
professional judgment, offered a greater prospect of secur
Barnes,
745,
ing
750-54,
relief. Jones v.
463 U.S.
103 S.Ct.
3308,
(1983);
Robbins,
[*]
[*]
[*]
The High Court has explicitly
recognized
appellate
counsel is not constitutionally obliged to raise
all
any and
claims;
nonfrivolous
contrary,
has,
to the
the Court
on
occasions,
repeated
emphasized that vigorous,
ap
effective
pellate advocacy requires the exercise of reasonable selec
tivity
deciding
Robbins,
upon which claims to pursue.
288, 120
746, 145
at
756; Barnes,
U.S.
S.Ct.
L.Ed.2d
750-54,
at
U.S.
103 S.Ct.
L.Ed.2d 434 (quoting 751-52, U.S. 103 S.Ct. 3308, 77 L.Ed.2d 987. See also Buehl v. Vaughn, 166 F.3d
376 Cir.1999)) (“One (3d
163, appellate element of effective 174 in selectivity deciding the exercise of reasonable strategy is raise.”). emphasized to Barnes arguments which importance about the hardly any question can be “[t]here a examine the record with advocate having appellate 463 issues for review.” promising to the most selecting view 3308, 752, 987. at 103 77 L.Ed.2d U.S. S.Ct. Jones, 343, 598, (Gilbert) A.2d v. (2002) by
613,
Announcing Judgment
Court
(Opinion
J.).
Castille, J.,
Eakin,
joined by
that his counsel
Fourth,
claim
respect
appellant’s
with
to file a
seeking
for not
leave
appeal
ineffective on direct
was
the U.S.
complaint
upon
to raise a
based
brief
supplemental
Maryland,
in Mills v.
U.S.
Court’s decision
Supreme
(1988),
Majority
assumes
Second,
substantive issue
would
thére is a fundamental
before relief could
in the defendant’s favor
have to be Iresolved
appeal
a claim that direct
counsel was
granted upon
be
to seek the
failing
to invoke relaxed waiver
ineffective
federal constitutional rule
was not
benefit of a new
which
trial,
time of
and the benefit of
existence at the
which was
to be
Specifically,
strong argument
there is a
sought below.
governed by
an
claim should be
made that such
ineffectiveness
standard set forth in Lockhart v.
heightened prejudice
Fretwell,
(1993),
It
the
provides
is true that while
Strickland test
sufficient
for
guidance
resolving virtually all ineffective-assistance-of-
claims, there
in
the overriding
counsel
are situations which
on
may
analysis.
focus
fundamental
fairness
affect
the
hand,
Thus,
explained,
on the one
as Strickland itself
there
in
prejudice may
are a few situations
which
be pre-
And,
hand,
sumed ....
on the other
there are also situations
unjust
which it would be
to characterize the likelihood of
a
if
legitimate “prejudice.”
different outcome as
Even
a
false testimony might
persuaded
jury
defendant’s
have
the
him,
to
it
not
acquit
fundamentally
unfair to conclude that
prejudiced by
he
not
counsel’s interference
with
Whiteside,
157, 175-176,
Nix
perjury.
intended
v.
475 U.S.
106
Similarly, Lockhart concluded given we over- fairness, in fundamental riding interest the likelihood of a different outcome attributable to an incorrect interpretation of the law should be as a to regarded potential “windfall” the defendant rather than the con- legitimate “prejudice” templated by opinion our Strickland The death sentence imposed Bobby Ray Arkansas had on Fretwell was (murder aggravating based on an circumstance committed for element pecuniary gain) duplicated an of the under- (murder lying felony in the course of a robbery). Shortly trial, before the Appeals United States Court counting” had held that such “double Eighth Circuit Lockhart, F.2d see Collins impermissible, (1985), because he was lawyer (presumably but Fretwell’s decision) object to the use of the Collins failed unaware claim aggravator. of the Before Fretwell’s pecuniary gain Court, corpus for federal habeas relief reached though even Accordingly, Collins case was overruled. a timely sustained judge probably Arkansas trial would have it clear that objection counting, to the double had become aggravating on the right rely disputed had a State the ineffectiveness of Fretwell’s circumstance. Because or any proce- him of substantive deprived counsel had him, that his the law entitled we held right dural to which component satisfy “prejudice” claim did not test. Strickland Whiteside, 157, 106 S.Ct. such as Nix v. 475 U.S.
Cases
Fretwell,
(1986),
and Lockhart v.
89 L.Ed.2d
(1993),
do not
364, 113
Williams (2000) (citations 1512-13, omit- and footnotes 146 L.Ed.2d Lockhart, 372, at 844 ted); at 113 S.Ct. accord U.S. the ques- test “focuses on (prejudice component Strickland the re- deficient renders performance tion whether counsel’s fundamentally unreliable or the proceeding sult of the trial unfair____ if not result Unreliability or unfairness does deprive of counsel does not the defendant ineffectiveness entitles to the law any procedural right substantive or which (citations omitted). him.”) notes, has held Majority Supreme
As the
Court
rule,
enti-
which is not
Mills established a new constitutional
tied to
collateral attack. Beard v.
operation
retroactive
Banks,
406,
2504,
542 U.S.
S.Ct.
Finally,
respect
appellant’s
with
claim of
assis-
ineffective
evidence,
tance
concerning
of counsel
I
mitigation
although
remanded,
agree that this issue should be
I
my
must reiterate
concern with the
reliance
Majority’s
upon authority which did
not exist at the time of this
in
only
trial
which is the
purposes
relevant time for
counsel’s
in
evaluating
conduct
Indeed,
regard.
the seminal
in
decision
Strickland—a
case which likewise
alleged
involved
ineffective assistance at
penalty phase—did
yet exist at the time of trial. The
single
does
Majority
not cite to
case
which was
existence
trial,
at the time of
it
appellant’s
yet
states the governing
a certitude that
law with
misleadingly suggests
timeless,
it
principles
discusses are
and were settled in 1981.
I
that it
believe
least debatable
guidance provid-
whether
ed
High Court
a decision so recent Wiggins
Smith,
(2003),
539 U.S.
123 S.Ct.
Janice Supreme Pennsylvania. Court
Argued Dec. 2004.
Decided Jan. Chew, Ullman, Edith M. West Esq., Reading, Robert T. Chester, for A. Wensel. Janice Mark A. Esq., Harrisburg, A. Wensel. Saltzgiver,
Laurie CASTILLE, NIGRO, CAPPY, C.J., and BEFORE: NEWMAN, SAYLOR, BAER, EAKIN and JJ. notes Appellant discussing testimony of a police admissions, officer testified to Appellant’s who statement, of his recording and the circumstances surrounding it, summary the court’s suggested that the officer’s testimony was “accurate and complete.” Appellant fails to acknowledge, however, that the court jury cautioned the that they would to weigh have the officer’s credibility determining circumstances surrounding Appellant’s statements. M.O., to the referring testimony of the court mentioned a second rape, Appellant which argues guilt indicated his rape—the Furthermore, first one involving Ms. Graham. Appellant takes issue with the court’s limiting instruction assault, concerning the M.O. arguing that the references in the instruction to similarity implied between offenses Appel- lant’s guilt, and that the court indicated that he had been noted, found of other guilty crimes. As any reference to similarity between offenses was of a part lengthy limiting crimes consider the other jury cautioning instruction identity establishing purpose for the solely evidence jurors repeatedly The court advised the perpetrator. evidence, afford such weight to determine the they were the M.O. or convicted of not been tried had Appellant assault. evidence, asserts the defense Regarding
Notes
it as an notes characterizes charges statutory hearing indicate that the 1976 were for decertification assault, assault, simple rape, exposure, indecent and involun- indecent tary deviate sexual intercourse. and Appellant. he elicited from witnesses testify to statements disposition received a consent decree Notably, Appellant 9, 586, 1976, July Act of P.L. generally the 1976 offenses. See 6340). C, 142, 2, The trial (Subchapter § Section No. ch. that, significant history if offered the no Appellant court ruled circumstance, the be permit Commonwealth would mitigating detective, testimony from the but not the present ted result, As a counsel declined to invoke the juvenile record.35 ruling appeal. and did not on mitigator challenge that, prosecutor maintains knew that Appellant although decree, had been on consent he did not Appellant placed counsel, allowing proceed the court or trial them to advise that oc- assumption adjudication under the a conviction or vein, curred. In this same asserts that coun- prior sel ineffective for to both ascertain the failing disposition of the 1976 offense and raise this issué on he appeal. Because disposition, Appellant received a consent decree argues the Commonwealth could not have introduced the offense to significant rebut the no history mitigator. The responds Appellant “pleaded guilty Commonwealth decree,” to the via consent that this rape disposition alternative, of a criminal In the equivalent conviction. argues Commonwealth claim Appellant’s concerning moot, admissibility of the consent decree is as the trial court’s ruling limited the to presenting evidence of Appellant presented 35. The trial court also ruled that if evidence touching upon mitigator, his character in connection with the catch-all 9711(e)(8), § permitted Pa.C.S. the Commonwealth would be proof testimony concerning prior rebut with sexual assault. prior The trial court reasoned that discretion to admit evidence of the 9711(a)(2) Sentencing sexual assault was afforded under Section of the Code, 9711(a)(2), § 42 Pa.C.S. which at the time of trial provided: sentencing hearing, may presented any In the evidence be as to question matter that the court deems relevant and admissible on the imposed relating of the to be sentence and shall include matters any aggravating mitigating specified or circumstances in sub- (d) (e). aggravating sections Evidence of circumstances shall be (d). specified limited to those circumstances in subsection 13, 1978, Sept. provision § Act of P.L. No. 1. This has been permit impact amended to the introduction victim evidence. See Act 1), (Spec.Sess. § of Oct. P.L. No. No.
notes who on the stand—where is the child then? Where days witness he then? was
[*]
[*]
[*] in and of itself is no excuse. He was 16-16 Age years, months, 24 days. age What does that matter? Did him from the idea that to take than stop getting it’s better to be That it is better to given? pick nine-year-old victim for less resistance?
[*]
[*]
[*] Gentleman, I’m asking you, aggravation Ladies and to find I’m miti- asking you aggravation outnumbering to find For, all the defense has is that is a gation. you said he has trouble boy, reading. it defense Contrary Appellant’s suggestion, interjected Appellant’s counsel who courtroom demeanor as a jury prosecutor’s responsive factor for the to consider. The commentary was therefore allowable. See Commonwealth v. Abu-Jamal, 485, 561-62, A.2d reference to calm Concerning prosecutor’s demeanor as indicated the trial court’s note-taking, comments, the focus on be comparing Appellant’s prior at trial his behavior the defense during penalty- havior with phase closing. Consequently, prosecutor’s statements did unfairly presentation any mitigating undermine the