DocketNumber: 385 CAP
Judges: Cappy, Castille, Newman, Saylor, Eakin, Baer, Baldwin
Filed Date: 6/20/2006
Status: Precedential
Modified Date: 10/19/2024
OPINION
After multiple remands in this capital post-conviction appeal, we resolve Appellant’s layered claim of ineffective assistance of counsel deriving from his trial counsel’s investigation and presentation of sentencing mitigation.
The background underlying Appellant’s conviction for first-degree murder and subsequent death sentence is set forth in Commonwealth v. Gorby, 527 Pa. 98, 588 A.2d 902 (1991). Briefly, the killing occurred in December 1985 after Appellant asked Drayton Spahr, the victim, for a ride from one tavern to another. Upon arrival, Appellant killed Mr. Spahr in his car, using a knife. Later, Appellant appeared at both taverns in clothes bearing markings from dried blood and displayed the victim’s wad of money, distinctive belt, and wallet. See id. at 104-05, 588 A.2d at 904-05. At one point, Appellant produced his bloodstained knife and used it to shave hair from a bartender’s arm; in statements to police, witnesses characterized Appellant’s appearance and behavior as highly irregular.
In preparing for the penalty phase of trial, Appellant’s trial counsel was aware that: there were accounts of his client having behaved irrationally around the time of his offenses; Appellant had abused intoxicating substances from the time of his early youth; he had a “rough childhood”; he performed poorly in school and in educational testing despite normal intelligence; he had had various encounters with the juvenile justice system; and he had been hospitalized on one or more occasions, including as a result of a head injury suffered in an automobile accident at 18 years of age. Nevertheless, counsel did not believe that any of these circumstances represented, or presented a basis for further inquiry into, potential mitigation.
Immediately after Appellant’s conviction and prior to the penalty phase of trial, Appellant’s trial counsel appeared to express some uncertainty in terms of the presentation of mitigating circumstances at a capital trial.
Q Would you state your full name for the record please.
A Pardon me?
Q State your full name for the record.
A Gilbert L. Stevens
Q And what is your address?
A R.D. 2, Box 110, Eighty-Four, Pa.
Q What is your relationship to Mr. Gorby?
A He’s my stepson.
Q Prior to December 21st, 1985, within the few months immediately prior to that, was he working with you or for you?
A He worked for me. We cut wood and stuff like that around the house. He helped me build my home.
Q What kind of work would he do for you when he was helping you build your home?
A We laid the block; most of the block he helped me with and roughed in the decks. The walls I put up later.
A He worked with me all day long. He worked pretty hard, I’d have to say a good worker.
Q Would he work with you on a regular daily basis?
A Pardon me?
Q Would he work with you on a regular daily basis?
A No. If I asked him to do something he would always give me a hand. He never refused unless he had somewhere to go or something to do.
Q Your Honor, I have no other questions.
N.T., at 1097-98.
In his brief closing penalty-phase argument before the jury,
You heard testimony of Gilbert Stevens now, who is the stepfather, you have heard the testimony of Betty in the case. Again this doesn’t count here. What counts is the testimony that Mr. Stevens gave you.
N.T., at 1102.
In January 1996, Appellant filed a petition for relief under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, which was supplanted by an amended petition filed by appointed counsel. Appellant averred, inter alia, that his trial counsel failed to investigate, develop, and present mitigating evidence concerning his life history and mental-health condition, including evidence of abuse and neglect suffered during his childhood and major mental health impairments, for example, cognitive disorder diminishing, inter alia, his ability to reason, make sound judgments, and control impulses. According to the petition, the “good worker” evidence that counsel did actually adduce was paltry and dwarfed by the other available and compelling mitigation. The petition averred that counsel’s deficient stewardship stemmed from his failure to undertake a sufficient and reasonable mitigation investigation, in-
In support of his petition, Appellant submitted numerous declarations containing life-history and mental-health information within recognized categories of mitigation in capital sentencing proceedings. For example, the declarations included ones from Appellant’s mother and two aunts attesting to his rearing in an impoverished, dysfunctional household;
The central proffer of information concerning Appellant’s mental health was contained in the declarations of three psychologists and a psychiatrist. These persons attested, fairly consistently, to having determined to a reasonable degree of professional certainty that, at the time that he committed his crimes, Appellant suffered from cognitive disorder (brain injury affecting thought process), major depression, post-traumatic stress syndrome, borderline personality disorder, and poly-substance abuse. Further, they indicated that
Additional declarations included one from a prison guard, describing Appellant’s intervention to rescue him from serious injury or death in an incident in which a prisoner was choking the guard with a belt, and the statement of a juror from Appellant’s trial reflecting his judgment that nothing meaningful had been presented at the penalty phase in terms of mitigation, as well as his indication that the development of facts concerning childhood abuse and neglect would have persuaded him that a life sentence was the appropriate punishment. The post-conviction proffer also included Appellant’s medical records evidencing: an early incident of hospitalization, in which a physician noted that he suffered from malnutrition, dehydration, and jaundice possibly due to sepsis; Appellant’s 1976 vehicle accident in which he suffered a “blow-out type fracture of the left orbit and lateral wall of the maxilla,” reported memory loss, and exhibited drifting and poor responses of his eyes; educational records showing poor achievement and sub-normal performance testing; and juvenile records reflecting Appellant’s status as a “loner,” his report that his step-father barred him from the household during his teenage years, the indication of a juvenile counselor that “[rjecords seem to verify [Appellant’s] view-point inasmuch as they indicate the step-father to be negligent in his duties,” and the counselor’s statement that “[t]here does not seem to be any functioning going on in terms of social experience.” The submission also included police reports containing witness statements regarding Appellant’s unusual behavior after the killing.
Finally, Appellant presented a declaration from his trial counsel, attesting to the fact that Appellant’s sentencing hearing was the first penalty phase proceeding in which he had served as a defense attorney,
*373 Current counsel has ... showed me affidavits and records that document Mr. Gorby’s childhood, which include physical abuse, sexual molestation, and gross neglect as well as evidence of Mr. Gorby’s brain damage. Together, and separately, this material presented a powerful case for mitigation that would have explained Mr. Gorby’s actions to the jury. If I had possessed this information, I would have used it at sentencing. I had no strategic or tactical reason for not investigating and presenting this information.
... At some point in preparing for trial, I asked Mr. Gorby’s mother about Mr. Gorby and she told me that Mr. Gorby had a rough childhood and that he drank too much. I did not follow up on this nor did I talk to any other family members about Mr. Gorby’s background. Nor did I procure records on Mr. Gorby which would have indicated his traumatic childhood. If I had learned of Mr. Gorby’s history of childhood abuse, neglect and drug and alcohol abuse, I would have had Mr. Gorby evaluated by a mental health expert who could have explained the mitigating effects of Mr. Gorby’s horrific childhood to the jury. I had no strategic or tactical reason for not investigating and presenting this information.
... I presented mitigating evidence that Mr. Gorby was a good worker. However, because I did not have time to prepare, I did not insist that the judge instruct the jury under the (e)(8) “catch-all” mitigating circumstance. I should have requested that the judge instruct the jury under this mitigating circumstance so that the jury could have considered this evidence.
Deelaration/Affidavit of Trial Counsel, at ¶¶ 6-8.
At the time initially scheduled for hearing on the petition, the PCRA court credited the Commonwealth’s argument that Appellant’s claims were not amenable to post-conviction relief, and therefore, declined to proceed with a hearing. Appellant’s post-conviction counsel indicated to the court that witnesses were present in the courtroom and specifically objected to the court’s decision to dismiss the petition based upon grounds of legal insufficiency. See N.T., November 9, 1999, at 23.
Q. Now, we already discussed the fact that you were aware that he had scars on the head from the head injuries, he had been hospitalized because of head injuries, his mother told you he did poorly in school, his mother told you that he did poorly on testing?
A. Correct.
Q. In addition, his mother told you and you knew from Mr. Gorby himself and from the witnesses you interviewed that he had a history of intoxication?
A. I knew Jeff drank a lot, correct.
Q. Did you know that he had a history of drug use?
A. To some extent, yes. Jeff even I think admitted that to me.
Q. You can’t miss that in talking to Mr. Gorby?
A. Correct.
Q. Putting the history of intoxication, of alcohol abuse and of drug abuse together with the head injuries and the poor achievement he had in childhood, was there a tactical or strategic reason for not putting all that together and seeking a mental health expert’s assistance?
A. No.
A. No, not really.
Id. at 68, 72; accord id. at 94-95. Counsel also confirmed that, had he known information derived from the life-history declarations proffered with Appellant’s PCRA petition, he would have had Appellant examined by a mental-health professional, and that he had no strategic or tactical reason for having failed to do so. See, e.g., id. at 55-56. Further, counsel affirmed that Appellant had never indicated that there was any area of mitigation that he did not wish to be explored. See id. at 65-66.
Appellant’s trial counsel, however, did not affirmatively concede actual ineffectiveness on his part. Rather, he maintained that he simply was not made aware of much of the information contained in the post-conviction proffer, although he had had extended conversations with Appellant and his mother, and, to a lesser degree, Appellant’s step-father. Indeed, to some extent, counsel distanced himself from his declaration, indicating that it had to be considered in context, in particular, in light of the limited information with which he had been provided by his primary source, Appellant’s mother, whose statements, he believed, had to be taken at face value. The following passage from the post-conviction transcript is illustrative:
Q. If you could turn to entry A-5, that’s your affidavit, ..., prior to your testimony here today — of course, after the trial, but prior to your testimony here today, you had the opportunity to review the affidavits from Dr. Fox, Dr. Semone, Dr. Toomer, and Dr. Krop, the doctors who evaluated Mr. Gorby during the post-conviction proceedings?
A. Briefly, yes.
A. They do as far as what they say in their affidavits. That’s correct.
Q. Can you think as you are testifying here today of a tactical reason not to use that type of information? A. No.
Q. If you could look at paragraph 6 of your affidavit where you indicate that the records, the historical information and the mental health evaluations, together and separately this material presented a powerful case for mitigation that would have explained Mr. Gorby’s actions to the jury. If I had possessed this information, I would have used it. I had no strategic or tactical reason for not investigating and presenting this information and the information as discussed earlier in that affidavit in the paragraph, and that’s accurate?
A. It is accurate to that extent. I didn’t have that information. It wasn’t provided to me so that I could obtain it. If I had had that information, I probably would have used it.
Q. Also as you indicated there was not a tactical reason for not using it?
A. Right.
N.T. January 19, 2000, at 81-82; see also id. at 38 (“I took what [Appellant’s mother] said at face value.”), 102 (“I had to rely upon what her information was which she gave me.”), 39 (“[M]y point was that, you know, I could only take what I got from people I talked to.”). Counsel repeatedly explained that, because information was not provided to him by the family, he could not obtain it.
At the same time, however, counsel repeatedly deflected questions probing why the information generated from the family did not prompt further inquiry on the basis that the information that he had received was not specific.
Counsel’s testimony was also equivocal in various responses concerning the extent of his investigation, as reflected, for example, in the following passage:
Q. I think you said [Appellant’s mother] did give you names and addresses of some family members?
A. I think she specifically gave me the address of the stepbrother, I knew that he had various siblings and relatives.
THE WITNESS: I think she did. I just can’t remember specifically.
THE COURT: Did you follow up on them?
THE WITNESS: I followed up on it to the extent that I would have asked her what can these people help me with? What can they offer to me? Is there anything I can talk to them about that would be beneficial here, and Betty I think would have paraphrased what she believed they would have been able to offer me.
Q. As you indicated in the affidavits, you did not follow up by speaking to the other specific family members themselves?
A. At that point I did not follow up. I just didn’t think I had a reason to at that point.
Q. You didn’t actually interview, just to make it clear, the other family members?
A. No, I didn’t interview them. I may have talked to one by telephone, but I didn’t physically sit down and interview them because I really talked to Betty extensively.
Q. Do you specifically remember who you spoke to, if anyone, on the phone?
A. No.
Q. It could have been someone or not?
A. That’s correct, I don’t remember who it was.
N.T., January 19, 2000, at 61.
Finally, with regard to the absence of an objection to the trial court’s failure to charge on the (e)(8) mitigator, counsel’s explanation was as follows:
A. I thought — well, yes, that’s correct. We discussed it before we went out and my recollection is that that was going to be part of the procedures that either [the district attorney] or I could argue, and that’s why I didn’t do it.
Q. Was there a tactical reason for not objecting to that for purposes of having the record clear as to your position?
A. No, because I had thought for the record that I had — I had objected to that. If I hadn’t, then the record speaks for itself.
Q. Without an instruction the jury to consider categories of evidence, the jury won’t consider it.
A. It is logical.
Q. And the actual defense evidence that you put on at the penalty phase was [Appellant’s stepfather], was the (e)(8) type evidence?
A. Correct.
N.T., January 19, 1999, at 90-91.
In April 2000, the PCRA court dismissed the claim of ineffective assistance of counsel connected with the failure to investigate and present mitigation based on the conclusion that Appellant’s trial counsel had conducted a sufficient investigation but simply had not uncovered the information proffered in the post-conviction declarations. See Commonwealth v. Gorby, No. 555(a)(b) 1986, slip op. (C.P. Washington April
The court acknowledged that, if the information furnished with the petition was true and accurate, there was “no doubt ... that it may have been useful to [Appellant’s] defense at trial, particularly in the penalty phase.” Id. at 7. Indeed, the court stated that, “[h]ad trial counsel known of any of alleged mental problems that [Appellant] may have suffered, he would most certainly have a duty to investigate further into the possible mitigating evidence that existed at the time of trial.” Id. However, the court reasoned:
[I]f trial counsel did not know nor had reason to know of the existence of such evidence then he cannot be deemed to be ineffective. The question then is whether or not trial*381 counsel did or did not breach his duty to conduct a reasonable investigation into petitioner[’]s childhood history and mental health background at the capital sentencing proceeding or the guilt phase. We conclude that trial counsel did not breach his duty.
As evident from [counsel’s] testimony, he had no knowledge of any of the alleged mental health problems of [Appellant] nor did his lengthy conversations with [Appellant’s] mother, [Appellant’s] stepfather, or [Appellant] himself give any indication that such problems existed. Furthermore, there were no other indications that should have placed trial counsel on alert as to the possibility of the existence of mental health evidence. [Appellant’s] medical and hospital records do not include MRIs or other examinations of the brain. [Appellant] himself spoke articulately and intelligently. He has an IQ of 105. Appellant has failed to prove that his trial counsel was ineffective or that his subsequent counsel was ineffective for failing to bring a meritless claim and this claim is dismissed.
Id. at 7-8 (citation omitted).
With regard to the claim that trial counsel was ineffective for failing to request an instruction under the Section 9711(e)(8) catch-all mitigator, the PCRA court held that the evidence offered by Appellant at trial “was insufficient as evidence of mitigation” to qualify for treatment under subsection (e)(8). Id. at 10-11; see also id. at 11 (“The fact that [Appellant] occasionally did things around the house is insufficient evidence of the existence of [Appellant’s] record to merit a ‘catchall’ instruction.”). Furthermore, the court found any ineffectiveness associated with the absence of the catchall charge to have been harmless, as the jurors had received a general instruction to consider all evidence. See id. at 12.
On appeal, among its arguments the Commonwealth complained that it was disadvantaged by the absence of a full evidentiary record, in terms of its ability to respond to Appellant’s claim of ineffective assistance of counsel for failure to investigate Appellant’s mental health history. See Commonwealth v. Gorby, 567 Pa. 370, 378, 787 A.2d 367, 372 (2001)
On remand, the PCRA court limited the presentation to mental-health evidence in accordance with this Court’s Order, while Appellant again sought, but was not permitted, to develop a record concerning the broader social-history aspect. See N.T., April 2-3, 2002, at 13-14. Testimony was adduced from two psychologists, Harry D. Krop and Jethro W. Toomer, and a psychiatrist, Dr. Robert C. Fox, Jr. These mental health professionals confirmed that, after examinations and testing of Appellant and upon review of his medical and social-history records, they had determined that he suffers (and suffered at the time of the killing) from cognitive disorder, other major mental health conditions, and the effects of substantial and prolonged childhood abuse, impacting on his thinking and conduct, and implicating the mitigating circumstances under Section 9711(e)(2) (influence of extreme mental or emotional
The professionals also testified that it is not unusual for people with mental-health issues to lack self-recognition, see N.T., April 2-3, 2002, at 47, nor is it unusual for persons involved in abusive family situations to demonstrate reluctance to discuss the abuse — in these regards and others, they emphasized the essential role of collateral data in the form of medical, mental-health, and social-history records in making an informed assessment concerning an individual’s mental-health makeup. See, e.g., id., at 48 (describing collateral records as “significant and critical and essential in terms of the evaluation process”); see also id. at 28-29, 48, 70, 115, 125-26, 133-35. According to the expert witnesses, the life-history records that were assembled at the post-conviction stage closely correlated with the results of neuropsychological testing and evaluations. Further, the witnesses specifically
The Commonwealth presented no affirmative evidence in rebuttal. On cross-examination, however, the district attorney: pointed to the context of the examinations and testing in terms of their being undertaken by witnesses engaged by the defense thirteen years after Appellant’s crimes; highlighted the inability of the experts to confirm the actual etiology of the asserted cognitive disorder and, thus, its time of onset; developed the possibility of explanations for discrete instances from Appellant’s history, such as his erratic attendance at and poor performance in school, other than cognitive disorder or impact from abuse; observed that Appellant had functioned adequately in the military and in prison; noted the absence of any self-report by Appellant of mental health problems or history of mental health diagnosis; emphasized Appellant’s normal intelligence; suggested the possibility of malingering; and questioned the professionals extensively on their ultimate conclusions. See N.T., April 2-3, 2002, at 84-101, 156-70, 238-80.
Following the hearing, the PCRA court issued a supplemental opinion confirming that the presentation of evidence changed neither its position nor its analysis. In this regard, the court reiterated its view that “counsel’s consultations with [Appellant] and his family triggered no basis for him to pursue a mental health issues mitigation as at [sic] the penalty phase.” Commonwealth v. Gorby, No. 555(a)(b) 1986, slip op. at 4 (C.P. Washington May 23, 2002). The court stated that “even accepting as true the testimonies of the three expert witnesses, ... in 1985 and 1986 during [trial counsel’s] representation of [Appellant], based upon the reasonableness of the circumstances known to trial counsel, he was not ineffective to have failed to investigate [Appellant’s] mental health history
This PCRA court notes that presently, most if not all trial counsel, if given the financial ability to do so, would investigate a defendant’s mental health history from date of birth to the present in a capital case, even absent triggering information or evidence if for no other reason than to defend against a future claim of alleged ineffectiveness of counsel. But we have not reached the point yet where the appellate courts have ruled that in all capital cases, regardless of the circumstances, a thorough investigation regarding defendant’s mental health history must be made and presented during the penalty phase in order for the trial defense attorney to meet successfully future challenges regarding ineffectiveness of trial counsel.
Id. at 6.
While the matter was pending in this Court after the initial remand, the Court issued McGill, 574 Pa. at 574, 832 A.2d at 1014, which confirmed the waiver of claims of ineffective assistance of trial counsel not raised in direct appeals that were concluded prior to the issuance of the Court’s decision in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), and clarified the requirements for pleading, presentation, and proof relative to the only potentially extant, derivative claim in such cases, namely, a challenge to the stewardship of counsel on direct appeal for failing to raise the issue of trial counsel’s ineffectiveness. See McGill, 574 Pa. at 587-89, 832 A.2d at 1022-23. Pursuant to the protocol delineated in McGill, this Court entered an Order remanding the matter to the trial court to permit appropriate development. Appellant moved for reconsideration, arguing that relief was due in the absence of any further hearing, which was denied.
At the hearing on remand, Appellant was unable to question his counsel from the direct appeal, since that attorney had died during the course of the litigation. Appellant, however, presented testimony from two lawyers with substantial defense experience in capital litigation, who opined that Appellant’s claim of ineffective assistance of trial counsel at the
Presently, in supplemental briefing, Appellant frames his arguments as directed in McGill, contending that the record as described above amply establishes deficient stewardship on the parts of his counsel at trial and in the direct appeal, in terms of the relevant criteria of arguable merit, reasonable strategy, and prejudice. See Commonwealth v. Pierce, 515 Pa. 153, 158-60, 527 A.2d 973, 975-76 (1987).
The Commonwealth filed a brief following the first remand entailing the presentation of the mental-health mitigation evidence, but it did not file a supplemental brief following the McGill remand. In the brief that it filed, the Commonwealth argues, as the PCRA court found, that the testimony of the mental-health experts should not alter the conclusion that trial counsel was effective in the discovery and presentation of mitigating evidence. The Commonwealth again highlights: the lapse of time between the examinations and testing and the time of Appellant’s offenses; that fact that Appellant’s intelligence is in the normal range; Appellant’s adequate military service; Appellant’s self-reporting of no mental-health disorder; the inability of Appellant’s experts to pinpoint an etiology for the asserted cognitive disorder; and an acknowledgement by one of the professionals that Appellant knew that the killing of the victim was a crime. Further, the Commonwealth argues:
[Appellant’s] child and adult record is devoid of any psychological report that [Appellant] was suffering from any men*389 tal illness prior to the commission of the homicide. Mental illness/brain damage was not suspected or found to exist prior to the deficiencies found by Dr. Krop on three test batteries some 13 years after [Appellant] was placed on death Row. Trial Counsel was not informed of any mental illness and testified that [Appellant] was articulate when he testified during trial. There is nothing apparent from the record which would have placed any trial counsel on notice of any claim of mental illness.
The Commonwealth is in agreement "with the findings of the PCRA Court and its opinion and commentary. The Commonwealth also notes that there is no life history of bizarre behavior on the part of [Appellant]. Likewise there is no apparent nexus between the violent stabbing death of Dray-ton Spahr and [Appellant’s] deficient performance on a categories and card sorting test administered thirteen years after an event. Neither a ten year old broken jaw or a twenty three year old high fever provided trial counsel with any real notice or opportunity to seek mitigation of his crime.
Brief for Appellee, at 5-6.
Under the Post Conviction Relief Act, constitutionally ineffective assistance of counsel will support a claim for post-conviction relief. See 42 Pa.C.S. § 9543(a)(2)(h); see also Commonwealth v. Chester, 557 Pa. 358, 374-76, 733 A.2d 1242, 1250-51 (1999) (holding that the Post Conviction Relief Act extends to challenges arising from the penalty phase of trial, including ineffectiveness claims). As noted, Appellant’s only extant claim is of ineffective assistance of his counsel on direct appeal. However, such challenge derives from Appellant’s waived claim of ineffective assistance of trial counsel, and the underlying claim is appropriately considered as a component of the essential analysis. See McGill, 574 Pa. at 587-88, 832 A.2d at 1022-23.
The PCRA court also incorrectly credited counsel’s reliance on witness conclusions as to critical matters (such as an indication from Appellant’s mother that he suffered no mental infirmity), to foreclose additional inquiry, despite counsel’s actual knowledge of circumstances that should have prompted at least some further investigation (for example, Appellant’s irrational behavior after his crimes; his “rough childhood”; his dependency on intoxicating substances; his poor educational achievement and test results despite normal intelligence; and the known incidence of head injury). One of Appellant’s attorney witnesses likened such a course of conduct to a physician who, on considering a description of symptoms by a patient suffering from a disease, offers the patient a clean bill of health without examination or testing, because the patient did not specify a diagnosis. See N.T., October 15, 2004, at 45. While such analogy is not a perfect one, it does cast some illumination on this substantial weakness in the PCRA court’s reasoning.
It is also reasonably clear that the necessary but omitted investigation would have yielded evidence of value at the penalty phase of Appellant’s trial, as the PCRA court repeatedly recognized. Furthermore, and particularly as trial counsel’s actual presentation at the penalty phase of trial was remarkably weak,
The record also supports no reasonable strategy on the part of appellate counsel in failing to present a claim of ineffective assistance of trial counsel. Such a claim merited exploration based on the apparent weakness of trial counsel’s penalty-phase presentation alone, as reflected on the face of the trial record; further, a reasonable inquiry should have yielded the information that was developed on post-conviction review concerning the unduly limited scope of trial counsel’s penalty-phase investigation. We also agree with Appellant that the ineffectiveness claim was substantially stronger than the claims that were raised on direct appeal.
In short, we believe that the salient claim of ineffective assistance of trial counsel was unreasonably omitted from the direct appeal, again, resulting in prejudice.
Finally, we differ with the PCRA court’s suggestion that the grant of post-conviction relief in this case would indicate that in all capital cases, regardless of the circumstances, mental-health mitigation must be presented to the jury for a defense attorney to meet future challenges to his stewardship. In fact, it is the sum total of the individualized circumstances as
The order of the PCRA court is reversed, and post-conviction relief is awarded in the form of a new penalty hearing. Jurisdiction is relinquished.
. For example, the following interchange occurred between counsel and the court:
[COUNSEL]: What you are saying then, as far as our mitigating circumstances, that are you going to introduce it or are we going to introduce it?
[THE COURT]: No, you have to introduce it. How can I introduce it? ...
N.T., at 1074; see also id. at 1061-62 (reflecting counsel's indication that he needed a book to address aggravating and mitigation circumstances, as well as the trial court’s remark, “I don't know what the mitigating circumstances are. He said he is going to read the book.").
. The argument spans less than three pages of the trial transcript.
. Counsel’s reference to the testimony of "Betty” is to the fact-based testimony of Appellant's mother adduced during the guilt phase concerning Appellant’s whereabouts and appearance before, at, and/or after the time of the killing. See N.T., September 1986, at 876-90. As is reflected in counsel’s acknowledgement, above, such evidence bore no relevance to the development of any mitigating circumstance at the penalty phase.
. Those were that Appellant had committed the killing in the perpetration of a felony (robbery), see 42 Pa.C.S. § 9711(d)(6), and that he had a significant history of felony convictions involving the use or threat of violence to the person, see 42 Pa.C.S. § 9711(d)(9).
. See, e.g., Declaration and Affidavit of Jim Buchanan at ¶ 5 (reflecting a statement by Appellant's brother that "[Appellant] was dragged from bar to bar with my mother and Lou. I saw him many times sleeping on bar stools or in the truck or car in the parking lot of the bar.”); id. at ¶ 3 (“We would see our mother staggering drunk on a regular basis.... We were neglected by our mother due to her bad relationships with men and her drinking.").
. See, e.g., Declaration and Affidavit of Shirley Denjen, at ¶ 3 (reflecting the statement by Appellant’s aunt that he "was scarred by the violence in the home he lived in. Seeing his mother's face split open and her head split open and then seeing that she did nothing to get herself or him out of the situation had a bad effect on him. He wanted to protect his mother from these men but he was unable to. It hurt him to see his mother hurt.”); Declaration and Affidavit of Jim Buchanan at ¶ 5 (“There were just so many fights in our house that we lived with the fear and the violence all the time.”); Declaration and Affidavit of Roy Denjen at ¶ 6 (reflecting the statement of Appellant’s uncle that “I was a city cop and I was used to dealing with domestic violence situations but it was sad that this was my wife’s sister's house where the violence was going on”).
. Appellant’s trial counsel previously had been employed as an assistant district attorney, and thus, did have substantial experience in handling criminal cases from the prosecution perspective.
. See, e.g., id. at 82 ("I didn't have that information. It wasn't provided to me so that I could obtain it. If I had had that information, I probably would have used it.”), 96 ("A lot was to be included after discovery evidence — after discovery of medical opinions and reports and documents of that nature which were not provided to me. The information had not been provided to me before trial.”), 98 ("Well, like
. See, for example,
Q.... His mother had indicated that [Appellant] had had a difficult life?
A. Well, she mentioned things like that, but she wasn’t specific, correct.
Q. And the actual youth records ... include entries indicating very low achievement scores and testing of Mr. Gorby reflective of thinking problems on his part?
A. Yeah, and I think his mom may have alluded to that, but not in any great detail.
N.T., January 19, 1999, at 37, 40-41; see also id. at 58 (indicating that Appellant's mother "didn't go into detail” about Appellant's having been rendered homeless by his step-father).
. Other portions of the transcript amplify that counsel did not follow up with interviews of potential life-history witnesses other than Appellant's mother and step-father. See, e.g., N.T., January 19, 2000, at 37-38 (reflecting counsel’s concession that he did not contact Appellant's step-brother); id. at 74 (counsel did not contact Ms. Denjen, Appellant's aunt, or her husband); id. at 76-77 (counsel did not interview Gloria Wilson or Caroline Everly, Appellant’s aunts); id. (counsel did not interview Appellant's sister or long-time friend). See generally id.
. In this regard, the PCRA court omitted any reference to the "blowout type fracture of the left orbit,” i.e., the cracking of the skull around the left eye, the reported memory loss, or the exhibited drifting and poor responses of the eyes that are reflected in the medical records, as previously noted.
. This opinion preceded the Court’s acknowledgement in Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014 (2003), that the Court's requirements pertaining to development of a claim of ineffective stewardship on the part of appellate counsel were not clear, and the associated holding that an appropriate response to an undeveloped claim in cases preceding McGill was a remand to provide an opportunity for adequate development under clarified standards. See id. at 590-91, 832 A.2d at 1024.
. In this regard, it was explained that the left frontal lobe, which impacts upon cognitive function and, in particular, impulse control, resides behind the left eye, and in a substantial impact may be damaged when it collides with the skull. See N.T., April 2-3, 2002, at 43-44, 199-200, 205-06.
. As noted, the PCRA court specifically found that trial counsel’s post-conviction testimony "does not conflict with the testimony proposed in the affidavits provided by [Appellant]. [Counsel] admits that he never inquired into [Appellant's] history of abuse,” See Gorby, No. 555(a)(b), slip op. at 4; it failed, however, to accord such finding any meaningful role in its actual decision making.
. In this regard, the PCRA court did not reconcile its reliance on the frailty of the defense penalty-phase presentation to explain the absence of an instruction regarding the catch-all mitigator with its broader conclusion that trial counsel’s performance was constitutionally adequate.
. For example, counsel on direct appeal pursued a claim of evidentiary insufficiency in a case in which the evidence "was overwhelming to support [Ajppellant’s conviction for first degree murder,” Gorby, 527 Pa. at 107, 588 A.2d at 906, a claim that testimony of Appellant’s asserted common law wife was improperly admitted over an assertion of marital privilege which had "no legal basis” because Appellant remained legally married to another, id. at 110, 588 A.2d at 907-08, and a claim of error in failure to sequester jurors that contained "no claim of actual prejudice” and was accordingly denied in a relatively summary fashion, see id. at 110-11, 588 A.2d at 908.