Commonwealth v. Bardo, M., Aplt

[J-145A-2012 and J-145B-2012]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 650 CAP
:
Appellee : Appeal from the Order dated December
: 30, 2011 in the Court of Common Pleas of
: Luzerne County, Criminal Division at No.
v. : CP-40-MD-0002778-1992
:
: SUBMITTED: November 5, 2012
MICHAEL BARDO, :
:
Appellant :
COMMONWEALTH OF PENNSYLVANIA, : No. 651 CAP
:
Appellant : Appeal from the Order dated December
: 30, 2011 in the Court of Common Pleas of
: Luzerne County, Criminal Division, at No.
v. : CP-40-MD-0002778-1992
:
: SUBMITTED: November 5, 2012
MICHAEL BARDO, :
:
Appellee :
CONCURRING OPINION AND OPINION IN SUPPORT OF AFFIRMANCE
ON DOCKET NO. 651 CAP
MADAME JUSTICE TODD DECIDED: December 16, 2014
With respect to Part II of the per curiam Opinion, I join the majority’s decision to
affirm the PCRA court’s order denying guilt-phase relief, subject to several caveats.
First, with respect to Bardo’s claim that his trial attorney rendered ineffective assistance
of counsel in his abortive attempt to secure a change of venue, I agree with the majority
that Bardo failed to establish that such a motion had arguable merit: as the PCRA court
held, even assuming the pretrial publicity regarding his case was inherently
inflammatory and inculpatory, he has failed to establish that it so pervaded the
community as to warrant a presumption of prejudice. Indeed, in his attempt before this
Court to make that showing, Bardo merely asserts that only one prospective juror “had
not read or heard anything about the case” and that 40% of prospective jurors formed
an initial opinion regarding his guilt or innocence. See Bardo’s Brief at 67. I join the
majority to the extent it rejects Bardo’s claim on the ground that, under the unique
circumstances of his case, this showing is insufficient to warrant a presumption of
prejudice.
However, to the extent the majority suggests a litigant may never demonstrate
that pretrial publicity has pervaded the community by showing it has reached virtually all
prospective jurors, or that a litigant may never demonstrate that the time between
pretrial publicity and trial is insufficient to dispel prejudice by reference to its extremely
brief period, I note that this Court has not sanctioned such bright line rules. Instead, this
Court has typically engaged in a holistic, qualitative evaluation of all relevant evidence
to determine if the publicity’s nature and dissemination throughout the community, in the
context of the particular circumstances of the case, warrants a presumption of prejudice
notwithstanding empaneled jurors’ indications that they can be fair and impartial. See,
e.g., Commonwealth v. Pierce, 303 A.2d 209, 213 n.3 (Pa. 1973) (quoting Marshall v.
United States, 360 U.S. 310, 312 (1959) (“[E]ach case must turn on its special facts.”)).
Moreover, I note that the PCRA court’s alternative rationale, which the majority
approves – that counsel’s failure to obtain a change of venue caused Bardo no
prejudice because each juror indicated he or she would decide the case impartially,
because Bardo failed to exhaust his peremptory strikes, and because the trial court
instructed the jury to decide the case based on the evidence before it – misapprehends
[J-145A-2012 and J-145B-2012] - 2
the nature of the claim. As an initial matter, Pierce and its progeny contemplate that
pretrial publicity may be inherently prejudicial, and thus warrant a presumption of
prejudice, regardless of the jurors’ statements and counsel’s conduct at voir dire and the
trial court’s instructions. See Commonwealth v. Brado, 368 A.2d 643, 645 (Pa. 1977)
(noting that, “[w]hile the jurors may not have considered themselves to be prejudiced by
the [publicity at issue,] . . . [a]nyone who was exposed to such news reporting would
surely have formed some opinion as to” the merits of his defense). Furthermore, in the
present posture, the PCRA court’s inquiry is not whether counsel’s failure to seek a
change of venue may either have presumptively or actually caused his jury to be
prejudiced against him, but rather whether counsel’s failure to obtain a venue change
likely precluded an out-of-county jury from acquitting him or imposing a different penalty.
See, e.g., Commonwealth v. Reaves, 923 A.2d 1119, 1127 (Pa. 2007) (noting that, in
the context of an ineffectiveness claim, the proper prejudice inquiry is whether “there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different”). Accordingly, and in light of the fact that the
PCRA court and the majority properly dispose of Bardo’s claim as lacking arguable
merit, I decline to join this unnecessary and, in my view, erroneous alternative rationale.
Finally, with respect to Part I of the per curiam Opinion, like Justices Saylor and
Baer, I would affirm the PCRA court’s order granting penalty-phase relief – which is
partially rooted in the PCRA court’s view of the relative persuasiveness of trial counsel’s
and PCRA counsel’s advocacy concerning mitigation evidence, and which the PCRA
court found might well convince at least one juror to forbear from imposing the death
penalty – as the PCRA court’s determination in this regard is free of legal error and
supported by the record.
[J-145A-2012 and J-145B-2012] - 3