Commonwealth v. Mason, L., Aplt

[J-1-2015][M.O. – Stevens, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 676 CAP
:
Appellee : Appeal from the Order entered on
: 1/3/13 in the Court of Common Pleas,
v. : Criminal Division of Philadelphia County
: at No. CP-51-CR-0700431-1994
LENWOOD MASON, :
:
Appellant : SUBMITTED: January 5, 2015
CONCURRING AND DISSENTING OPINION
MR. CHIEF JUSTICE SAYLOR DECIDED: December 29, 2015
I concur in the result as to the guilt phase while dissenting as to penalty.
As to the sentencing aspect, I find this to be a close case, particularly in light of
the precedent establishing the parameters for sufficient representation in a penalty trial.
On the one hand, Appellant’s counsel did succeed in presenting evidence of Appellant’s
borderline intellectual disability, a type of evidence which the Supreme Court of the
United States has observed may very well impact capital penalty deliberations. See
Penry v. Lynaugh, 492 U.S. 302, 319, 109 S. Ct. 2934, 2947 (1989) (explaining that
“evidence about the defendant's background and character is relevant because of the
belief, long held by this society, that defendants who commit criminal acts that are
attributable to a disadvantaged background, or to emotional and mental problems, may
be less culpable than defendants who have no such excuse” (quoting California v.
Brown, 479 U.S. 538, 545, 107 S. Ct. 837, 841 (1987) (O'Connor, J., concurring)));
accord Williams v. Taylor, 529 U.S. 362, 398, 120 S. Ct. 1495, 1515 (2000)
(commenting that “the reality that [the defendant] was ‘borderline mentally retarded,’
might well have influenced the jury's appraisal of his moral culpability.”). On the other
hand, however, it appears that this evidence could have been better developed, and
there was a substantial quantity of other available mitigation. Further, upon my review
of the record, I find that counsel was not adept in presenting the type of context for the
evidence that was adduced which might resonate with jurors.
For example, in his closing remarks, rather than focusing closely upon the impact
of Appellant’s intellectual disability upon his moral culpability, counsel ruminated on his
personal role in defending against a death sentence, see, e.g., N.T., Feb. 16, 1996, at
114-16; offered a lengthy portrayal of his own childhood experience with a boy who he
depicted as impaired, see id. at 116-118; transitioned somewhat discordantly to a theme
of “living hell” which he first abstractly ascribed to his client’s life, then entreated the jury
to relegate to his client by imposing a life sentence rather than death, see id. at 118-
121; and stood in front of a death-qualified jury attempting to draw a comparison
between modern-day capital proceedings and the Salem witch trials, see id. at 122.
Only a few short and somewhat disjointed passages from the closing touched upon the
actual mitigation evidence developed on the record. See id. at 118-19, 125-26. Given
such shortcomings, and in light of the availability of a more developed mitigation case, I
find the representation to have been sufficiently deficient that a new penalty proceeding
is implicated. Cf. Commonwealth v. Collins, 585 Pa. 45, 75-78, 888 A.2d 564, 582-84
(2005).1
1
Obviously, the final resolution of the Atkins matter on remand would bear on the
necessity for such a proceeding.
[J-1-2015][M.O. – Stevens, J.] - 2
Finally, I respectfully differ with the majority’s continued approval of prosecutorial
entreaties to capital sentencing juries to show the same mercy to defendants as was
shown to their victims. Accord Commonwealth v. Daniels, ___ Pa. ___, ___, 104 A.3d
267, 323 (2014) (Saylor, J., concurring and dissenting) (expressing the concern that
“such practice is fundamentally inconsistent with the plain terms of the governing
statutory scheme, which is designed to permit the punishment of death only upon the
rendering of reasoned moral judgments, not decisions made on the same lawless terms
by which murders are committed”).
[J-1-2015][M.O. – Stevens, J.] - 3