Commonwealth v. Eichinger, J., Aplt ( 2014 )

[J-52-2013][M.O. – Eakin, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 657 CAP
:
Appellee :
: Appeal from the Order entered on
v. : 4/4/12 in the Court of Common Pleas,
: Criminal Division of Montgomery County
: at No. CP-46-CR-0002785-2005
JOHN EICHINGER, :
:
Appellant : ARGUED: June 19, 2013
CONCURRING OPINION
MR. JUSTICE SAYLOR DECIDED: December 31, 2014
I concur in the result and offer the following comments organized according to
the numerical conventions employed in the majority opinion.
Issues II & III
The majority deems lead trial counsel’s approach in making very early selections
of trial strategy,1 leading to an unusual “stipulated bench trial” for the guilt phase, to be
“entirely reasonable.” Majority Opinion, slip op. at 35. I have substantial reservations in
this regard.
First off, the case involves a capital defense attorney who was unfamiliar with the
American Bar Association Guidelines for the Appointment and Performance of Defense
1
See, e.g., N.T., June 15, 2011, at 51-52 (reflecting trial counsel’s accession that the
strategy of conceding guilt and advancing contrition was “the strategy [he] formed from
day one”); id. at 44 (reflecting counsel’s comment that, as early as the preliminary
hearing, his approach to the defense was “just fall on the sword, mea culpa, hope for
the best, that they spare [Appellant’s] life”).
Counsel in Death Penalty Cases (the “ABA Guidelines”). See N.T., Feb. 8, 2011, at 29.
This core resource, in its various permutations, has been in existence since 1989 and
has been referenced by the Supreme Court of the United States as containing “guides
to determining what is reasonable.” See, e.g., Wiggins v. Smith, 539 U.S. 510, 524, 123
S. Ct. 2527, 2536-37 (2003) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104
S. Ct. 2052, 2065 (1984)).2 Had counsel referenced those guidelines, he would have
appreciated the following cautionary advice as encapsulated by the Supreme Court of
the United States:
[P]leading guilty without a guarantee that the prosecution will
recommend a life sentence holds little if any benefit to the
defendant. See ABA Guidelines for the Appointment and
Performance of Defense Counsel in Death Penalty Cases
§10.9.2, Commentary (rev. ed. 2003), reprinted in 31 Hofstra
L. Rev. 913, 1045 (2003) (“If no written guarantee can be
obtained that death will not be imposed following a plea of
guilty, counsel should be extremely reluctant to participate in
a waiver of the client’s trial rights.”). Pleading guilty not only
relinquishes trial rights, it increases the likelihood that the
State will introduce aggressive evidence of guilt during the
sentencing phase, so that the gruesome details of the crime
are fresh in the jurors’ minds as they deliberate on the
sentence. See [Gary] Goodpaster, [The Trial for Life:
Effective Assistance of Counsel in Death Penalty Cases,] 58
N.Y.U.L. Rev. [299,] 331 [(1983)]. . . .
2
In reference to such guidelines, this Court’s opinions tend to stress that the guidelines
are not mandatory. See, e.g., Commonwealth v. Sepulveda, 618 Pa. 262, 294 n.15, 55
A.3d 1108, 1127 n.15 (2012). Nevertheless, they certainly present a comprehensive
resource made readily available to capital defense counsel by a prominent national bar
association upon careful study and reflection. As of the time of Appellant’s trial, 2005, it
seems inconceivable to me that a lawyer would undertake representation in a death-
penalty case having no familiarity with these well-recognized guidelines.
[J-52-2013][M.O. – Eakin, J.] - 2
Fla. v. Nixon, 543 U.S. 175, 191 n.6, 125 S. Ct. 551, 562 n.6 (2004).3 It also seems
to me to be highly questionable for the attorney to select a strategy centered on
remorse, at a time when the client will not affirmatively acknowledge factual guilt relative
to the crimes. See N.T., July 21, 2011, at 5, 13.
I have similar thoughts relative to Issue VI, which concerns counsel’s
stewardship at the penalty stage, in that I simply am far more circumspect about the
representation afforded to Appellant at his capital trial than the majority. Thus,
ultimately, my concurrence in the result rests more on the prejudice assessment than on
the majority’s various approvals of the attorneys’ performance.
Issue IV
To the degree the majority holds that federal constitutional law does not require a
colloquy related to waivers of core constitutional trial rights at a capital proceeding
which are dispositive of guilt, see Majority Opinion, slip op. at 9, I find the decision to be
in material tension with Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S. Ct. 1709, 1712
(1969) (“What is at stake for an accused facing death or imprisonment demands the
utmost solicitude of which courts are capable in canvassing the matter with the accused
to make sure he has a full understanding of what the plea connotes and its
consequence.”).4 Although Boykin arose in the setting of a guilty plea, I fail to see that
the “stipulated bench trial” which occurred here represented anything short of such a
plea (functionally and in terms of the consequence-laden accessions involved).
3
While Appellant did not actually plead guilty, the procedure employed was tantamount
to a plea in all respects material to the Supreme Court’s analysis, above.
4
The majority’s treatment appears to be limited to Appellant’s claim as it relates to the
waiver of his right to a jury trial. See Majority Opinion, slip op. at 9. Appellant’s brief,
however, also speaks to the broader sphere of constitutional rights which he waived,
including his right to “contest the evidence against him.” Brief for Appellant at 28.
[J-52-2013][M.O. – Eakin, J.] - 3
Accordingly, while I agree with the majority’s alternative assessment that the actual
colloquy was sufficient, see Majority Opinion, slip op. at 9-12, I distance myself from the
suggestion that such colloquy had no independent significance under the United States
Constitution.
Issue V
The majority opinion appears to suggest that the rejection, on direct appeal, of a
record-based claim touching on the voluntariness of a confession obviates a challenge,
on a developed post-conviction record, to trial counsel’s failure to adduce mental-health
evidence to establish a lack of voluntariness. See Majority Opinion, slip op. at 14. I find
such reasoning to be out of sync with the governing review standards. See, e.g.,
Commonwealth v. Collins, 585 Pa. 45, 60-61, 888 A.2d 564, 573 (2005) (holding that an
assertion of ineffective assistance of trial counsel raises a cognizable post-conviction
issue, even if the underlying claim has been previously litigated). Indeed, I fail to see
how a court, on direct appellate review, can “impliedly” adjudge a defendant’s mental-
health condition, Majority Opinion, slip op. at 14, without any factual record whatsoever
relative to mental-health impairments first asserted on collateral review. On this claim, I
support the result based on the alternative rationale centered on the post-conviction
court’s findings. See id.
Issue VI
Consistent with my assessment of trial counsel’s performance in the guilt phase
of trial, I regard the analysis of Appellant’s claims that his trial attorney failed to
adequately develop and present mitigating evidence at the penalty stage as being of a
much more greatly mixed nature than does the majority. On the one hand, counsel did
collect various social history records and ultimately did consider consultation with and
engagement of mental-health professionals, as contrasted with the abysmal
[J-52-2013][M.O. – Eakin, J.] - 4
performance of numerous appointed Pennsylvania capital defense attorneys in the
many cases we have seen in which these sorts of rudimentary preparatory measures
were omitted. See, e.g., Commonwealth v. King, 618 Pa. 405, 448-57, 57 A.3d 607,
633-38 (2012) (Saylor, J., concurring specially). On the other hand, the lawyer was
unfamiliar with the use of a mitigation specialist and the preparation of a social history,
see N.T., Feb. 8, 2011, at 46-47; N.T., July 6, 2011, at 67, conventions addressed in the
ABA Guidelines with which counsel also was unacquainted, see N.T., Feb. 8, 2011, at
29.
It also seems to me that counsel may have relegated an inordinate amount of
responsibility to the mental-health professionals in terms of assessing mitigation. See,
e.g., N.T., Nov. 29, 2011, at 24-25 (reflecting counsel’s indication that he simply
delivered life-history records to the defense psychiatrist and left it up to the psychiatrist
to determine what documents were relevant); id. at 134 (reflecting counsel’s attestation
to an approach that he was “just going to defer to whatever [the psychiatrist]
suggested”); N.T., July 6, 2011, at 100 (“I just left it all in his hands.”). This, of course,
led the defense experts, on collateral review, to distinguish their relationship with trial
counsel from other instances in which capital defense attorneys and the defense
experts worked as a team, per the approach recommended in the ABA Guidelines.
See, e.g., N.T., Oct. 25, 2011, at 128-29 (reflecting testimony to such effect from the
defense psychiatrist). Of additional concern is the “extremely compressed time frame”
in which the psychiatrist was expected to operate, id. at 128, as trial counsel only first
met with him a little over a month before the penalty proceeding, such that a report was
not generated until just a few days before the penalty hearing. See N.T., Nov. 29, 2011,
at 133; N.T., July 6, 2011, at 105.
[J-52-2013][M.O. – Eakin, J.] - 5
Finally, counsel’s pivotal dependence on Appellant’s ability to testify credibly to
remorse in the penalty hearing, see, e.g., N.T., July 6, 2011, at 86, seems to me to have
been misguided. Anyone reading this record, including the prosecutor’s extensive
references to Appellant’s journal detailing the killings, see, e.g., N.T., Nov. 3, 2005, at
19-20, will have a ready appreciation of the devastating cross-examination available to
the Commonwealth, had Appellant been presented as a witness on his own behalf.
Indeed, in light of such obvious avenues for cross-examination, trial counsel
acknowledged that there was slim hope that Appellant would have been regarded by
the jury as being sincere, had he testified to remorsefulness. See N.T., Oct. 24, 2011,
at 69. Along these lines, counsel acknowledged, fatalistically, in the post-conviction
proceedings that he thought “[h]earing it from [Appellant] was the best we were going to
do.” Id.
Again, I believe Pennsylvania capital defense attorneys should utilize all
available resources to gain a better appreciation of alternatives before selecting a
strategy with such large and obvious drawbacks. I also think that, in the hopes of
setting a course for better performance in future cases, we should be careful about
lending our approval to instances of stewardship manifesting a less informed and
deliberative character. Thus, again, my concurrence in the result rests entirely on the
prejudice component.
Issues VII & IX
To the extent that the majority holds that a prosecutor should be permitted to
discuss a defendant’s future dangerousness only in rebuttal, where a defendant places
his future conduct into issue in development of the mitigation case, see Majority
Opinion, slip op. at 16, I agree. I also concur in the majority’s judgment that Appellant
would appear to have opened the door for the prosecution to explore the potential for
[J-52-2013][M.O. – Eakin, J.] - 6
consistency in Appellant’s conformance. Cf. People v. Brady, 236 P.3d 312, 342 (Cal.
2010) (“The prosecutor’s argument concerning defendant’s dangerousness in prison
was proper rebuttal of an expert witness’s testimony about defendant’s ability to function
in a highly structured environment.”).
While I believe that the prosecutor’s actual arguments entreating the jury to
return a death verdict to prevent future killings tested the appropriate limits for rebutting
mitigation, this Court has set a very high bar for reversal on grounds of prosecutorial
misconduct where the trial court has issued appropriate instructions; the aggravating
circumstances in the present case were indeed compelling; and even on post-conviction
review Appellant has failed to present a convincing case that the range of available
mitigating evidence was such that the defense would have been able to do much better
with more knowledgeable attorneys at the helm. Thus, while I maintain my position that
the range of this Court’s tolerance for “oratorical flair” in death-penalty cases should be
narrower, and that prosecutors should confine their arguments more closely to the
evidence and the law, see, e.g., Commonwealth v. Spotz, 616 Pa. 164, 276, 47 A.3d
63, 131 (2012) (Saylor, J., concurring), ultimately, I concur in the result affirming
Appellant’s judgment of sentence.
[J-52-2013][M.O. – Eakin, J.] - 7