Commonwealth v. Hall , 582 Pa. 526 ( 2005 )

Justice SAYLOR

dissenting.

I respectfully dissent, as I believe that the declarations and briefs that Appellant’s present counsel has submitted in this appeal are sufficient to raise factual questions pertaining to the claim that prior post-conviction counsel was ineffective in failing to litigate a challenge to the sentence of death deriving from the absence of life-history and mental-health mitigation evidence before the sentencing jury. Accordingly, I would remand for a post-conviction hearing on this claim.

Initially, the majority recognizes that a remand is the appropriate procedure for consideration of a properly supported claim of ineffective assistance of post-conviction counsel. See Majority Opinion at 534-35, 872 A.2d at 1182. Further, it indicates that a remand will not be withheld based on Appellant’s failure to develop sufficiently his claims of post-conviction counsel’s ineffectiveness, since, as of the time that Appellant’s brief was filed, the requirements for layering ineffectiveness claims were unclear. See id. at 535-37, 872 A.2d at 1183. Nevertheless, later in its opinion, the majority appears to alter course, relying on an asserted lack of sufficient development of the layered ineffectiveness dynamic to bolster its position that a remand is unnecessary. See, e.g., Majority Opinion, at 545 n. 11, 872 A.2d at 1188 n. 11.

To the extent that the majority’s treatment is internally inconsistent, I cannot support it; moreover, I disagree that Appellant’s claim is baldly asserted. In this regard, Appellant’s brief is framed from its opening around the notion that post-conviction counsel was ineffective:

[Appellant] was denied his right to the effective assistance of his initial PCRA counsel ... where counsel failed to conduct a complete and thorough investigation; and where counsel failed to present evidence supporting those claims counsel did raise at an evidentiary hearing. Accordingly, as described below, the PCRA court never had for its consideration the evidence readily available that established substantial and compelling mitigation evidence that should have been presented at the time of trial and never considered substantial and compelling record-based claims for relief.

* * *

The record in this case unquestionably establishes that his post-conviction counsel was ineffective. As set forth more fully below, PCRA counsel failed to discover, investigate and litigate both non-record background and mental health claims as well as record-based claims requiring relief and the resulting dismissal of [Appellant’s] PCRA petition, resulting in an invalid conviction and death sentence^] prejudiced [Appellant].

Constitutional effective representation requires, at a minimum, “an independent review of the record by competent counsel ...” Pennsylvania v. Finley, 481 U.S. 551, 558, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). As set forth below, there existed substantial and compelling record-based claims for relief directly challenging the validity of [Appellant’s] ... death sentence. Nevertheless, prior counsel failed to raise or litigate these issues.

Moreover, also as set forth more fully below, prior counsel failed to adequately investigate [Appellant’s] background and history and provide that critical mitigating evidence to mental health experts in order to identify significant cognitive, emotional and mental impairments that should have been presented in [Appellant’s] trial and sentencing hearing. Finally, the prejudice is clear on the record. Appellant was denied post-conviction review of meritorious claims challenging his invalid conviction and sentence. Counsel’s failure to investigate potential claims and his failure to present those claims to this Court deprived [Appellant] of his rights to meaningful, counseled PCRA review of his conviction and sentence....

Initial Brief of Appellant, at 6-7. Twenty-two pages of the brief are then dedicated to filling out the above outline by developing Appellant’s position as to why the asserted life-history and mental health evidence would have presented a substantially better case for imposition of a life sentence as opposed to death, and why the proffered evidence was available on reasonable investigation. The argument is advanced via substantial references to the trial, post-trial, and PCRA record, the declarations furnished on appellate post-conviction review, and relevant Pennsylvania and United States Supreme Court precedent. See id. at 49-71.¹

On the merits of the underlying claim, much of the majority’s analysis centers on its repeated assertion that Appellant never informed his trial counsel of the alleged life-history and mental-health mitigation, and never raised the issue of his own accord in a post-trial evidentiary hearing. See Majority Opinion at 543-44 n. 9, 545 n. 11, 547-18, 872 A.2d at 1187 n. 9, 1188 n. 11, 1190. Although this Court continues on occasion to employ this and similar reasoning, it should by now be regarded as well established that the proper focus of the inquiry is on the investigation that counsel performed relative to such mitigation, and not on the actions that the capital defendant may or may not have taken on or of his own initiative. See Wiggins v. Smith, 539 U.S. 510, 525-26, 123 S.Ct. 2527, 2537-38, 156 L.Ed.2d 471 (2003) (discussing capital counsel’s obligation to “discover all reasonably available mitigating evidence” and the directing focus of the ineffectiveness inquiry to counsel’s investigation); Commonwealth v. Malloy, 579 Pa. 425, 459-61, 856 A.2d 767, 788 (2004) (“The onus is not upon a criminal defendant to identify what types of evidence may be relevant and require development and pursuit. Counsel’s duty is to discovery such evidence through his own efforts, including pointed questioning of his client.”);² Commomvealth v. Basemore, 560 Pa. 258, 290, 744 A.2d 717, 735 (2000) (“Obviously ... different light falls upon counsel’s performanee depending upon whether he asked and was not told, or he did not ask and therefore was not told.” (citing Strickland v. Washington, 466 U.S. 668, 690-91, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984))). Thus, the clear and simple question implicated by Appellant’s claim is whether counsel at trial, on direct appeal, and at the post-conviction stage ever inquired into the relevant mental-health and life-history aspects of mitigation. Accord Wiggins, 539 U.S. at 525-26, 123 S.Ct. at 2537-38 (again, framing the relevant inquiry in terms of counsel’s duties, and not obligations on the part of the capital defendant himself). This, however, is a question that the majority never undertakes to address.³

On the record before this Court, nothing supports a conclusion that trial counsel conducted any investigation into mental-health and explanatory-type, life-history mitigation.⁴ Indeed, when specifically asked what avenues he explored with his client, trial counsel responded solely by way of reference to the character-affirmation line of inquiry. See N.T., October 27, 1995, at 152-53 (reflecting that counsel’s response to the question, “What mitigating evidence did you describe to [Appellant], as a defense attorney would put on or would like to inquire about to put on for him at the death penalty stage?” was merely to discuss Appellant’s employment history).⁵

Furthermore, there seems to me to be fairly widespread consensus that the sort of mental-health and explanatory-type life-history mitigation evidence presently proffered by Appellant can serve as effective mitigation. See generally Wiggins, 539 U.S. at 510, 123 S.Ct. at 2542; Williams, 529 U.S. at 396, 120 S.Ct. at 1514-15; Allen, 366 F.3d at 850-51 (“Defense counsel’s use of mitigation evidence to complete, deepen, or contextualize the picture of the defendant presented by the prosecution can be crucialf.]”); People v. Coleman, 168 Ill.2d 509, 214 Ill.Dec. 212, 660 N.E.2d 919, 934 (1995) (“We acknowledge the critical importance of a defendant’s background and mental health to the sentencing decision.”). The majority’s characterization of Appellant’s proffer of evidence that he and his mother were regularly and severely abused by the men in the household as “perhaps disheartening” does not eliminate the potentially mitigating effect of the evidence, to the extent that it would be believed by a fact finder. Thus, in my view, the essential inquiry is properly accomplished, in the first instance, by the PCRA court, which is best suited to sort through the credibility issues and make the necessary assessment of counsel’s stewardship on the basis of concrete findings as to the actual and required scope of the investigations, as well as the weight of any reasonably available mitigation evidence that was not pursued, in comparison to that which was offered at trial.⁶

1 . As concerns the stewardship of PCRA counsel, it is noteworthy that, in the post-conviction evidentiary hearing, counsel developed a single issue on the record, namely, the claim that trial counsel was ineffective for failing to present expert testimony to rebut the Commonwealth's ricochet theory supporting the grave risk aggravator. As the majority notes, however, PCRA counsel presented no expert evidence to support that claim. Thus, he advanced a position that had no possibility of success, since he offered no attempt to establish prejudice, an essential component of an ineffectiveness claim.

2 . The majority's responsive effort to distinguish Malloy on its facts, see Majority Opinion at 545-46 n. 12, 872 A.2d at 1189 n. 12 does not speak to the straightforward legal proposition for which it is cited here.

3 . Indeed, the majority’s merits analysis suggests that it will accept that counsel’s investigation into some aspects of potential mitigation obviates any further duty to conduct a thorough investigation into all reasonably-available aspects. Such reasoning, however, contravenes prevailing United States Supreme Court precedent. See Wiggins, 539 U.S. at 525, 123 S.Ct. at 2537 (describing counsel's obligation to "discover all reasonably available mitigating evidence” (emphasis added)) (quoting ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, § 11.4.1(C), p. 93 (1989)); see also Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 1515, 146 L.Ed.2d 389 (2000) (explaining counsel’s duty to thoroughly investigate a defendant’s background).

4 . See generally Allen v. Woodford, 366 F.3d 823, 850-51 (9th Cir.2004) (distinguishing between character-based and explanatory-type mitigation, the latter of which is evidence, such as a history of deprivation and child abuse, that tends to afford some context to the defendant's criminal conduct).

5 . To the extent that the majority relies on Appellant’s expression at a colloquy immediately preceding the penalty phase of trial to the effect that he did not wish to present witnesses, see Majority Opinion at 547-48, 872 A.2d at 1190, it should be noted that Appellant retracted this position on the trial record immediately after having asserted it. See N.T., October 28, 1994, at 893 (reflecting trial counsel’s representation, "Your Honor, my client, as a result of having a discussion with him, he has changed his position with regards to having his witnesses testify”). Additionally, counsel confirmed on the record that ultimately he, and not Appellant, made the decisions concerning what witnesses to call at the penalty phase. See N.T., October 27, 1995, at 173 (reflecting counsel's affirmative response to the question, "Other than putting [Appellant] on the stand, which he controlled, you made the decisions, vis-á-vis, the other people?”).

The majority also discounts the attestation of Appellant’s initial trial counsel that Appellant was examined by a psychiatrist, who recommended a psychological evaluation, on the basis that the report was not included in Appellant's submission to this Court. See Majority Opinion at 543-45, 872 A.2d at 1188. In my view, however, the attorney attestation is sufficient to raise a factual issue, particularly since the report is merely referenced in terms of the constructive notice accruing to substitute counsel that mental health issues were potentially implicated.

Additionally, the majority faults Appellant for not furnishing the declaration of the psychologist who present counsel commissioned to examine Appellant with his initial submission. See Majority Opinion at 543 n. 9, 872 A.2d at 1187 n. 9. This Court, however, has previously recognized the difficulties facing substitute counsel on appeal in terms of developing non-record claims. See, e.g., Commonwealth v. Grant, 572 Pa. 48, 66, 813 A.2d 726, 737 (2002). Appellant's initial submission indicated that the expert had been retained, and the declaration reached this Court before the case was submitted for its review. Therefore, I would not exclude the psychologist’s declaration from consideration. (To the extent that the majority is concerned that the declaration is undated, it was obviously prepared between the examination conducted on August 27, 2001, and the filing of Appellant’s reply brief on January 16, 2002.)

6 . Finally, on the application of the previous litigation doctrine, the majority does not state a specific conclusion as to whether it believes that the mitigation-related issue is barred. It is my position, however, that Appellant’s claim is not foreclosed by the previous litigation doctrine, since Appellant seeks to offer previously unadduced evidence on mitigation theories that were not asserted at trial, on direct appeal, or on post-conviction review. Accord Commonwealth v. Moore, 580 Pa. 279, 295 n. 5, 860 A.2d 88, 98 n. 5 (2004) (citing Commonwealth v. Miller, 560 Pa. 500, 746 A.2d 592 (2000), for the proposition that “where claim involving evidence involves other previously unchallenged evidence, claim was not previously litigated and merits will be reached”). Moreover, this Court's reasoning in rejecting the mitigation-based claims on direct appeal (which were predicated on the failure to adduce education, employment and positive-character evidence) centered on a discrete evaluation of the potential impact of each form of evidence. See Commonwealth v. Hall, 549 Pa. 269, 295-301, 701 A.2d 190, 203-06 (1997). Therefore, the Court's reasoning on direct appeal does not answer the claim presently asserted, which concerns the alleged failure to adduce available mental-health and explanatory-type, life-history mitigation evidence. Compare Commonwealth v. Uderra, 580 Pa. 492, 523-26, 862 A.2d 74, 93-94 (2004) (reasoning that a mitigation-based claim was previously litigated where the reasoning on direct appeal, while perhaps not shared by all Justices, fully answered the claim presented at the post-conviction stage).