Justice BAER.
This capital case involves cross-appeals from the order of the Court of Common Pleas of Lebanon County, which denied Bradley Martin's guilt phase claims under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, but granted a new penalty hearing on the grounds that trial counsel was ineffective for failing to investigate and present mitigating evidence. For the reasons that follow, we affirm.
On September 15, 1993, while serving a sentence at the Lebanon County Correctional Facility, Martin was granted a twohour pass to leave the prison. Upon leaving the correctional facility, he met Carolyn King, with whom Martin was romantically involved. Martin and King went to the home of Guy Goodman, who was a 74-year-old, homosexual male, who had written, telephoned, and visited Martin in prison. When Martin asked Goodman for money, Goodman responded that he would give Martin money in exchange for sex. Martin hit Goodman over the head with a vase and bound his wrists, ankles, and neck so he could not escape. Martin and King placed a bathrobe and plastic bag over Goodman's head and sealed the bag with duct tape. They took Goodman to
Martin and King then looted Goodman's home, stealing his checkbook and credit cards, and drove away in his car. They used Goodman's checks and credit cards to fund their westward travel. Police apprehended Martin and King in Arizona. Martin had Goodman's credit card on his person, and Goodman's blank checks and social security card were found inside his vehicle. After being advised of her rights, King gave a statement inculpating herself and Martin in Goodman's murder. Similarly, after being advised of his constitutional rights, Martin gave an incriminating statement to FBI Special Agent Paul Vick. While still in custody in Arizona, and after have been given Miranda
Martin and King were tried jointly, after a severance motion was denied. Martin also filed a motion to suppress incriminating statements made to Lebanon County Detectives, asserting that had been under the influence of drugs when the statements were given. The trial court denied the suppression motion. The jury subsequently found Martin and King guilty of first degree murder, aggravated assault, robbery, theft by unlawful taking, flight to avoid apprehension, escape, and conspiracy.
At the penalty phase, the jury found three aggravating circumstances—perpetration of the homicide during the commission of a felony,
On February 14, 2000, Martin filed the instant pro se PCRA petition and an emergency motion for stay of execution. The Commonwealth filed a motion to dismiss Martin's PCRA petition. Martin's motion for stay of execution was denied, and the PCRA court issued a notice of intent to dismiss Martin's pro se PCRA petition, pursuant to Pa.R.Crim.P. No. 909(B)(2)(a), allowing 20 days to amend. PCRA Court Opinion, 1/3/02, at 10.
Martin appealed the denial of his motion for stay of execution; this Court vacated the denial and granted a stay pending review of Martin's amended PCRA petition. See Commonwealth v. Martin, 561 Pa. 145, 748 A.2d 1233 (2000). Counsel for
The PCRA court divided Martin's issues into three categories: (1) issues the parties agreed could be disposed of as questions of law; (2) issues the Commonwealth argued could be determined as questions of law; and (3) issues that could only be considered by the court following an evidentiary hearing. See PCRA Court Opinion, 1/3/02, at 11-13. The PCRA court dismissed all of Martin's issues in the first and second categories as being previously litigated or without merit, but deferred one ineffectiveness claim to an evidentiary hearing. See id., at 46-47.
Following an evidentiary hearing on March 4, 2004, the PCRA court dismissed all of Martin's issues, with the exception that it found merit to the claim that trial counsel was ineffective for failing to investigate and present the mitigating evidence that Martin was diagnosed with a mental illness that affected him both during and after Goodman's murder. See PCRA Court Opinion, 3/4/04, at 40, 77. The court granted him a new sentencing hearing on this ground.
Martin filed a timely notice of appeal from the denial of guilt phase relief. The Commonwealth also filed a timely appeal, challenging the grant of a new sentencing hearing. Martin raises the following six issues on appeal:
See Martin's Brief, at 3-4. The Commonwealth raises one issue: whether the PCRA court erred in finding trial counsel ineffective for failing to investigate adequately and present mitigation evidence. Commonwealth's Brief, at 4.
"On appeal from the denial of PCRA relief, our standard of review is whether the findings of the PCRA court are supported by the record and free of legal error." Commonwealth v. Abu-Jamal, 574 Pa. 724, 833 A.2d 719, 723 (2003) (citing Commonwealth v. Breakiron, 566 Pa. 323, 781 A.2d 94, 97 n. 4 (2001)). We must determine whether the PCRA court properly denied relief, dismissing Martin's guilt phase claims. Additionally, we must determine whether Martin was properly granted a new sentencing hearing.
In order to be eligible for PCRA relief, the petitioner must prove by a preponderance
Many of Martin's issues allege the ineffective assistance of counsel. It is well-established that counsel is presumed effective, and the defendant bears the burden of proving ineffectiveness. Commonwealth v. Cooper, 596 Pa. 119, 941 A.2d 655, 664 (2007). To overcome this presumption, Martin must satisfy a three-pronged test and demonstrate that: (1) the underlying substantive claim has arguable merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and (3) the petitioner suffered prejudice as a result of counsel's deficient performance. Commonwealth v. (Michael) Pierce, 567 Pa.186, 786 A.2d 203, 213 (2001). A claim of ineffectiveness will be denied if the petitioner's evidence fails to meet any of these prongs. Id. at 221-222.
In Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), we abrogated the rule that ineffectiveness claims based on trial counsel's performance must be raised at the first opportunity where appellant has new counsel, see Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687, 695 n. 6 (1977), and held that a defendant "should wait to raise claims of ineffective assistance of trial counsel until collateral review." Grant, 813 A.2d at 738. Such holding, however, does not apply here because Martin's direct appeal concluded prior to our decision in Grant, and because his trial counsel remained in the case on direct appeal, albeit while being joined by co-counsel. Thus, the first opportunity for Martin to challenge trial counsel's performance was on collateral review. See Commonwealth v. Hughes, 581 Pa. 274, 865 A.2d 761, 775 n. 7 (2004) (holding that when an appellant was represented by the same counsel at trial and on direct appeal, the PCRA proceeding is the first opportunity to challenge the stewardship of prior counsel and the analysis of such issue does not involve a layered claim of ineffectiveness). Moreover, consistent with the well-settled proscription against counsel raising his or her own ineffectiveness,
Martin first argues that trial counsel was ineffective for failing to seek suppression of his confession on Fifth Amendment right to counsel grounds.
Continuing his arguable merit analysis, Martin avers that two days later, on October 7, 1993, after having been separately advised of his Miranda rights and signing a waiver form, he made a video-taped confession to Lebanon County detectives, who had traveled to Arizona to question him. He contends that "the Lebanon County police took advantage of [the] same Fifth Amendment violation in obtaining their confession." Martin's Brief, at 22. Martin concludes that this video-taped confession, which was ultimately played for the jury at trial, was tainted by the initial Edwards violation that occurred during the interrogation conducted by Agent Vick. Thus, he maintains, trial counsel was ineffective for failing to litigate his motion to suppress his confession to Lebanon County detectives on the grounds that the confession violated his Fifth Amendment right to counsel, and for failing to offer evidence at the suppression hearing in support of such claim.
The Commonwealth contends that this claim was previously litigated on direct appeal, where Martin argued that he was entitled to a new trial because his incriminating statements had been obtained unlawfully after he invoked his Fifth Amendment right to counsel. Alternatively, the Commonwealth asserts that Martin's claim is meritless because it fails to satisfy the standard for demonstrating ineffective assistance of counsel. Specifically, the Commonwealth argues that the F.B.I, report referencing Martin's statement to Agent Vick on October 5, 1993 clearly establishes that Martin initiated the communication about his criminal acts. It maintains that Agent Vick did not interrogate Martin; rather the only communication initiated by Agent Vick was in relation to changing the placement of Martin's handcuffs because he was suffering discomfort. The Commonwealth concludes that the conduct of the law enforcement officers was entirely consistent with the prevailing law allowing defendants to initiate conversations with police, even after they invoked their Fifth Amendment right to counsel. Under these circumstances, the Commonwealth maintains that if this Court examines the substance of the claim, we should dismiss it for lack of arguable merit.
We begin by rejecting the Commonwealth's contention that Martin's claim was previously litigated on direct appeal. While Martin challenged the admission of his confession on direct appeal, asserting that it violated the Fifth Amendment because it was given in the absence of counsel after Martin had invoked his right to counsel, the direct appeal claim was not couched in terms of ineffective assistance of counsel. See Commonwealth v. Collins, 585 Pa. 45, 888 A.2d 564 (2005) (holding that ineffectiveness claims are distinct from non-ineffectiveness claims of error raised on direct appeal and may not be dismissed as previously litigated under the PCRA).
Rather than addressing trial counsel's performance, which this Court had expressly precluded Martin from challenging as trial counsel remained in the case, this Court on direct appeal rejected the substantive Fifth Amendment claim as unsupported by the record. We stated:
Commonwealth v. King, 721 A.2d at 774. As to Martin's subsequent videotaped statement to the Lebanon County detectives, our Court on direct appeal further found that Martin was advised of his rights, waived them, and that there was "nothing improper concerning the circumstances under which this statement was given." Id. at 774-75.
Unlike the substantive claim raised on direct appeal, Martin currently argues that
Examining the merits of the collateral claim, however, we reject Martin's contention because he has failed to prove an Edwards violation, and thus, his cognizable derivative ineffectiveness claim fails. As noted, Martin's claim of an Edwards violation is premised entirely upon his construction of the aforementioned F.B.I, reports, which, he asserts, tainted his inculpatory statement to Agent Vick, as well as the confession he subsequently made to Lebanon County detectives two days later. Martin's construction of such F.B.I, reports is, however, strained.
The first F.B.I, report, by Agent Spilsbury, noted that on October 5, 1993, he and Agents Sellers and Lopez initially encountered Martin at the Yuma Police Department. The agents told Martin that they would read him his rights from the standard F.B.I, form. Martin clearly invoked his right to counsel when he responded "that he did not wish to talk to anyone about anything until he had spoken with an attorney." Martin also refused to provide the agents with "identifying information" and the interview was terminated. F.B.I. FD-302 form, transcribed 10/12/93.
The second F.B.I, report, by Agent Vick, stated that at approximately 7:45 p.m. that same evening, he looked into the detention cell where Martin was located and observed that Martin appeared to be suffering discomfort from having his hands cuffed behind his back. Agent Vick approached Martin, who told the agent that he had neck and shoulder pain; the agent replied that it could have been caused by the automobile accident that preceded Martin's apprehension. Martin volunteered that he had been high at the time of the accident and did not remember much of the incident. Agent Vick then reminded Martin that he had refused to say anything earlier and had requested an attorney. Agent Vick then uncuffed Martin's hands from behind and re-cuffed them in the front.
The report further indicates that at that point, Martin stated that he would be willing to talk to Agent Vick, but not to the agent who had questioned him earlier that day (presumably one among Agents Spilsbury, Sellers, or Lopez). Agent Vick told Martin that if he wanted to make a voluntary statement, the agent would first advise him of his constitutional rights. Martin agreed to be so advised, repeated that he wanted to make a voluntary statement, and asked for a soda to drink. Martin was then removed from detention, moved to an interview room, and given a soda. Another agent joined them to witness the proceedings. Martin reviewed Agent Vick's written version of the foregoing encounter, signed his acknowledgment, was read his rights from the F.B.I.'s standard form, and responded both verbally and by signature that he understood them; he then read and signed the waiver portion of the form. Thereafter, Martin gave an inculpatory statement. F.B.I. FD-302 form, transcribed 10/14/93.
In its merits discussion,
In Commonwealth v. Santiago, 528 Pa. 516, 599 A.2d 200 (1991), this Court summarized the holdings of key United States Supreme Court cases concerning the Fifth Amendment right to counsel as follows:
Id. at 201 (citations omitted); see also Maryland v. Shatzer, ___ U.S. ___, ___, 130 S.Ct. 1213, ___ L.Ed.2d ___ (2010) (Miranda gives protective force to rights to silence and counsel arising from Fifth Amendment privilege against compelled self-incrimination); Florida v. Powell, ___ U.S. ___, ___, 130 S.Ct. 1195, ___ L.Ed.2d ___ (2010) (same).
This Court further addressed Edwards v. Arizona in Commonwealth v. Edwards, 588 Pa. 151, 903 A.2d 1139 (2006): "[A] defendant who requests counsel at any time during a custodial interview is not subject to further interrogation by the authorities until counsel has been made available to him. . . ." Id. at 1150 (internal quotation marks omitted). However, "a confession given after a defendant invokes his right to counsel need not be suppressed where the defendant: (1) initiated further communication, exchanges, or conversations with the police, and (2) knowingly and intelligently waived the right to
After careful review of the F.B.I, reports upon which Martin premises his claim, we agree with the PCRA court that Agent Vick's actions did not amount to an interrogation, and that Martin voluntarily initiated the communication that led to his explicit Miranda waiver and the series of statements he now challenges. As the PCRA court found, although Agent Vick approached Martin to inquire about the pain he was suffering as a result of the placement of his handcuffs, it was Martin who evidenced a willingness to discuss the murder with Agent Vick. Thus, we find that Martin's incriminating statements to Agent Vick did not violate his Fifth Amendment right to speak to authorities only in the presence of counsel.
By the same token, Martin's confession to Lebanon County detectives does not suffer from the constitutional "taint" that he alleges. Once Martin initiated the contact with Agent Vick and voluntarily incriminated himself, he effectively waived his Fifth Amendment right to speak to authorities only in the presence of counsel. Significantly, the confession Martin gave to the Lebanon County detectives was preceded by an independent and explicit Miranda waiver. N.T., 10/10/94, at 913-14. Martin does not contend that anything more was required; rather his entire argument regarding the confession is premised on the alleged unconstitutional nature of the encounter with Agent Vick. Moreover, for obvious reasons, the F.B.I, reports upon which Martin relies make no reference to the purported interrogation by Lebanon County detectives, and Martin does not demonstrate, independent of the encounter with Agent Vick, how the admission of the confession to Lebanon County detectives implicates the Fifth Amendment.
Accordingly, we conclude that there is no arguable merit to Martin's claim that trial counsel was ineffective for failing to seek suppression of his confession on Fifth Amendment grounds, and for failing to offer evidence in support of such claim at the suppression hearing.
Martin contends that trial counsel was ineffective for failing to present a provocation defense to the jury. He argues that his claim possesses arguable merit because Goodman's homosexual advance triggered a Post-Traumatic Stress Disorder (PTSD) flashback of sexual abuse he suffered as a child, making him incapable of cool reflection. He primarily relies upon the expert testimony of psychiatrist Julie Kessel, who testified that the rage Martin experienced in response to the victim's sexual advance stemmed from his PTSD. Martin submits that counsel had no reasonable basis for failing to investigate the mental health evidence because his mother had provided counsel with an extensive list of the names and addresses of individuals and institutions that had provided Martin with mental health treatment for PTSD and depression.
In determining whether there was sufficient provocation to create uncontrollable passion in a reasonable person, we determine whether the killer actually acted in the heat of passion, whether the provocation lead directly to the slaying of the person responsible for the provocation, and whether the killer had sufficient cooling off time. See Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286, 290 (1972). If any element is missing, the provocation defense fails. Id.
In denying relief on this issue, the PCRA court held that Martin "did not act in the heat of passion in the commission of the actual homicide and that the provocation did not lead directly to the slaying of Goodman." PCRA Court Opinion, 3/4/2004, at 33. It found that although Martin's own expert, Dr. Kessel, opined that while Goodman's homosexual advance triggered a Post-Traumatic Stress Disorder (PTSD) flashback of sexual abuse Martin suffered as a child, she did not find that such event rendered Martin incapable of cool reflection so as to support a provocation defense.
In accordance with our standard of review, we find that the PCRA court's factual finding regarding Dr. Kessel's testimony is supported by the record, and that the legal conclusion drawn therefrom is not erroneous.
The record supports the finding that Dr. Kessel believed Martin's rage led him to hit Goodman with the vase. See N.T. PCRA Hearing, 9/13/02, at 158. Significantly, however, this was not the cause of Goodman's death. The coroner testified at trial that Goodman died of asphyxiation from the bag taped around his head. Specifically, Dr. Kessel stated:
Id.
Id. at 164.
As the PCRA court found, the facts surrounding the case, including Martin's response to Goodman's sexual advance, simply do not support a provocation defense. See PCRA Court Opinion, 3/4/04, at 35. As counsel cannot be deemed ineffective for failing to raise a meritless claim, this argument fails.
Martin asserts, without elaboration, that he is entitled to a new trial because counsel was ineffective in other key areas of trial. Specifically, Martin argues that trial counsel was ineffective for: consenting to the consolidation of the escape and homicide charges, despite his being charged separately for each offense; failing to request a cautionary instruction directing jurors not to interpret evidence of escape, receiving stolen property, or probation violation as evidence of propensity for criminal behavior; failing to object to evidence of his uncharged drug possession and prior work-release violations; and failing to object to testimony that Martin's previous visits to Goodman during work-release were unauthorized. See generally Martin's Brief, 36-38.
On direct appeal, we addressed the substantive issues underlying these claims of ineffectiveness. See King, at 771-2. For this reason, the PCRA court found that these claims were previously litigated. See PCRA Court Opinion, 1/3/02, at 38-40. As the instant claims are framed in terms of ineffectiveness of counsel, however, they are distinct from those raised on direct appeal and have not been previously litigated. See Commonwealth v. Collins, 888 A.2d at 573 (term "issue" as used in §§ 9543(a)(3) and 9544(a)(2) "refers to the discrete legal ground that was forwarded on direct appeal and would have entitled the defendant to relief; ineffectiveness claims are distinct from claims raised on direct appeal and must be treated as wholly independent of underlying claim of error).
We will address Martin's claims under the Pierce ineffectiveness standard to the extent review is possible from the record, and "will remand this matter to the PCRA court for further consideration only if we find that the claims that were considered `previously litigated' by the PCRA court are in need of further elucidation and cannot be evaluated by this [C]ourt." Id., at 574.
Recognizing that the decision to consolidate separate indictments is a matter left to the sound discretion of the trial court, this Court held on direct appeal that the trial court did not abuse its discretion by denying Martin's motion to sever the indictment charging him with escape from the indictment charging him with homicide. King, at 772. We found Martin's escape was part of a natural chain of events which lead to Goodman's murder, and therefore stemmed from a single criminal episode, warranting consolidation of the escape and homicide charges. Id.
This Court further rejected Martin's claim that the trial court erred by admitting evidence of his drug possession and prior violations of work-release conditions because such evidence involved uncharged prior offenses. Id. We held that the reference to Martin's possession of marijuana was inadvertently elicited when witnesses described conversations with Martin after the murder, while other comments were elicited on cross-examination by defense counsel. Id. We found the comments were innocuous in the context of the entire trial and warranted no relief.
Considering our rulings on the underlying issues, Martin has failed to demonstrate that these claims have arguable merit. Instead, he baldly asserts ineffective assistance of counsel, but offers no other explanation to support his argument. As Martin has failed to meet his burden to satisfy the arguable merit prong of the Pierce test, no relief is warranted.
Martin contends that the Lebanon County procedure for appointing counsel to represent defendants facing capital charges "presumptively" denied him the right to effective assistance of counsel. He maintains that at the time his trial counsel was appointed, Pennsylvania had no statewide standards governing the qualifications or training of appointed counsel in a capital case. Instead, such administrative matters were left to individual counties. Additionally, Martin challenges the lack of resources made available to him, such as centralized funding for experts and capital case investigators. He submits that the denial of the heightened procedural safeguards required in capital trials violated his rights under the Sixth and Eighth Amendments to the United States Constitution, and the corresponding provisions of the Pennsylvania Constitution. Responding to the PCRA court's finding that this claim was waived, Martin asserts that in his PCRA petition, he alleged counsel ineffectiveness respecting any claim that might be deemed waived. Further, he reiterates that trial counsel remained in the case on direct appeal and that this Court specifically directed counsel not to raise ineffective assistance of counsel claims in that appeal.
The Commonwealth argues that the PCRA court properly found this claim waived. To the extent the claim is viewed as a constitutional challenge to Pennsylvania and Lebanon County's lack of capital counsel appointment standards, and not a challenge to counsel's performance, it argues that such claim is waived because it could have been raised earlier in the proceeding. To the extent the issue challenges counsel's performance, the Commonwealth further submits that the claim is waived because Martin failed to allege in his PCRA petition that counsel was ineffective for failing to raise this claim. As to the merits, the Commonwealth argues that Martin is not entitled to relief because he fails to cite any authority supporting the notion that the absence of specific capital counsel standards amounts to a constitutional violation.
Initially, we are not convinced that Martin's claim is waived. Although Martin does not pose his contention as a typical Strickland claim, it is premised on the notion that trial counsel, through circumstances that were beyond his control but which were the responsibility of the Commonwealth, was rendered ineffective. Of course, counsel could have objected at the trial level that the resources made available to him were inadequate or that he lacked the qualifications for the appointment, assuming he believed that to be true. Counsel, however, did not forward such objections, and thus any claim along these lines was unavailable on direct appeal.
Martin's current claim, however, does not necessarily depend upon trial counsel acknowledging that the circumstances of his appointment rendered him "presumptively" ineffective. Even if trial counsel agreed with that assessment, he could not raise such a claim on direct appeal because he remained in the case and because this Court specifically directed Martin not to raise ineffectiveness claims. We conclude that Martin sufficiently developed in his PCRA petition both the institutional impediments he believed affected trial counsel's performance, as well as his trial counsel's specific lack of experience in capital cases. While Martin did not squarely pose this individual claim as one sounding in Strickland ineffectiveness of counsel, the claim clearly alleged that he was denied meaningful representation through the circumstances he described. Under these circumstances, we decline to forego merits review on the basis that the claim is waived.
Examining the merits of the claim, we conclude that Martin is not entitled to relief. Because Martin poses the issue as a systemic challenge, and not one dependent upon a showing of trial counsel ineffectiveness respecting any one deficiency, the claim implicates United States v. Cronic, 466 U.S. 648, 658-59, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (recognizing that there are limited circumstances, including the complete denial of counsel, that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified and prejudice is presumed).
Several of this Court's cases have touched upon Martin's claim sub judice.
Here, Martin has not demonstrated that the manner by which Lebanon County appointed capital defense counsel renders the performance of such appointed counsel presumptively ineffective under Cronic. To the contrary, all counsel is presumed to have rendered effective assistance. Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786, 796 (2008). Nor does a lawyer's inexperience in capital cases render him presumptively ineffective: this Court has "consistently stated that inexperience alone is not equivalent to ineffectiveness" and that an appellant must still make out the elements of an ineffectiveness claim. Commonwealth v. Blystone, 555 Pa. 565, 725 A.2d 1197, 1205 (1999). Whatever the alleged shortcomings of Lebanon County's indigent capital defense system may have been in the mid-1990s, Martin has not demonstrated that they were so extreme as to cause structural defects that tainted the entire mechanism of his trial and sentencing, such that the presumption of effectiveness is reversed. Martin's claim, therefore, fails.
Martin contends that trial counsel was ineffective for failing to challenge the manner by which Lebanon County selected its jurors, which was based on a per capita tax roll. He argues that the jury selection process unconstitutionally denied him a fair cross-section of the community in violation of the Sixth Amendment because individuals over 65, housewives, and persons making less than $5,000 per year are exempt from paying the per capita tax. Martin further maintains that at least six "ghost jurors" empanelled on his jury did not appear on the Lebanon County juror rolls in violation of 42 Pa.C.S. § 4521(a) (providing that "[a]t least annually the jury selection commission shall prepare a master list of prospective jurors."). The Commonwealth asserts Martin's claim is waived because he did not sufficiently plead and prove counsel's ineffective assistance in this regard.
The PCRA court initially determined the issue was not waived because Martin averred all prior counsel were ineffective for failing to raise this issue at an earlier point in the PCRA proceedings. See PCRA Court Opinion, 1/3/02, at 40. However, it held the underlying issue was waived because Martin failed to challenge the jury array five days before the first day of the week the case was listed for trial, as required by Pa.R.Crim.P. 630.
Because Martin preserved the ineffectiveness issue and presented argument to this Court as such, we likewise afford merits review. On the merits, the PCRA court determined that Martin failed to present a prima facie case that he was denied a jury selected from a fair cross-section of the community, and he failed to demonstrate how the appearance of alleged "ghost jurors" prejudiced him. We agree with this legal conclusion.
In order to prevail on his ineffectiveness claim, Martin must first demonstrate the arguable merit of the underlying claim, i.e., that the method of jury selection violated the Sixth Amendment. We have held that "[t]o establish a prima facie case that a jury pool selection method violates the Sixth Amendment, [the defendant] must show: (1) the group allegedly excluded is a distinctive group in the community; (2) representation of this group in the pool from which juries are selected is unfair and unreasonable in relation to the number of such persons in the community; and (3) the under-representation is due to the systematic exclusion of the group in the jury selection process." Commonwealth v. Romero 595 Pa. 275, 938 A.2d 362, 373-74 (2007) (citing Commonwealth v. Lopez, 559 Pa. 131, 739 A.2d 485, 495 (1999)).
Martin reiterates that Lebanon County selects juries based on the per capita tax rolls, which purportedly excludes persons over 65, housewives, and persons earning less than $5,000 per year. He baldly asserts that these groups were disproportionately excluded, but does not allege how the absence of these groups is unfair or unreasonable compared to the number of those individuals in the community. Nor does Martin offer any argument regarding how the alleged underrepresentation was due to a systematic exclusion of the groups during the jury selection process.
Additionally, Martin fails to demonstrate how the alleged "ghost jurors" on his jury prejudiced him or jeopardized any other group's representation in the jury pool. Moreover, he has failed to cite any authority for the proposition that a defendant is entitled to a new trial when a juror, for whatever reason, fails to appear on the master list of prospective jurors. Thus, he fails to make a prima facie showing he was denied a jury from a fair cross-section of the community, and his ineffective assistance of counsel claim fails the arguable merit prong of the Pierce analysis.
Finally, Martin argues that his convictions should be reversed with instructions that he be permitted to enter a guilty plea in exchange for a sentence of life imprisonment without the possibility of parole, and that all prior counsel were
In Commonwealth v. Spence, 534 Pa. 233, 627 A.2d 1176 (1993), we held that "prior to the entry of a guilty plea, a defendant has no right to specific performance of an `executory' agreement." Id., at 1184 (citing Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984)). Thus, as the PCRA court noted, "it was well-within [sic] the District Attorney's discretion to condition the acceptance of [Martin's] guilty plea upon the agreement of King to take the plea agreement, as the District Attorney is vested with the power to decide whether and when to prosecute and whether and when to continue or discontinue a case." PCRA Court Opinion, 1/3/02, at 21. Martin presented no evidence that the condition was based upon inappropriate considerations such as race, religion, or national origin; therefore, the condition was within the district attorney's discretion. Moreover, since the plea agreement was never presented to or accepted by the court, it never existed; it was at most an offer not accepted. Accordingly, the PCRA court properly held that Martin is not entitled to specific performance of the alleged plea agreement, and that counsel cannot be deemed ineffective for failing to raise this meritless claim.
The Commonwealth raises one issue for review—whether the PCRA court erred in granting Martin a new penalty hearing based on its finding that trial counsel was ineffective for failing to investigate and present mitigation evidence. The PCRA court based its decision on trial counsel's failure to investigate and present two categories of mitigation evidence: (1) mental health mitigation evidence establishing that at the time of the murder Martin suffered from chronic Post Traumatic Stress Disorder (PTSD) and depression, resulting from previous sexual abuse from his uncle; and (2) evidence that Martin sustained physical and emotional abuse while institutionalized for drug and alcohol treatment at the Straight Treatment Center (Straight) in Springfield, Virginia.
Regarding the mental health mitigation evidence, which was offered to support the mitigation circumstances set forth at 42 Pa.C.S. §§ 9711(e)(2) and (e)(3),
As to proposed mitigation evidence that Martin suffered emotional and physical abuse while institutionalized at Straight, which was offered to support the catchall mitigator set forth at § 9711(e)(8),
Before addressing the Commonwealth's allegations, we recognize that resolution of a claim that trial counsel was ineffective for failing to present mitigating evidence has proven, in the recent past, to be quite difficult, resulting in several divided opinions of this Court. See e.g. Commonwealth v. Ligons, 601 Pa. 103, 971 A.2d 1125 (2009) (court divided as to whether counsel was ineffective for failing to investigate and present mitigating evidence); Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786 (2008) (same); Commonwealth v. Sattazahn, 597 Pa. 648, 952 A.2d 640 (2007) (same); See also Commonwealth v. Beasley, 600 Pa. 458, 967 A.2d 376 (2009) (court divided as to whether a remand is necessary on claim of ineffective assistance of counsel for failing to present mitigating evidence); Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d 1110 (2008) (same); Commonwealth v. Gwynn, 596 Pa. 398, 943 A.2d 940 (2008) (same). This difficulty may arise from the fact that each case challenging trial counsel effectiveness for failing to present sufficient mitigating evidence "must be analyzed considering the unique facts presented. No two capital defendants will have the same life histories and no two counsel will proceed in the identical manner. Thus, what is considered reasonable in one case will not necessarily be considered reasonable in another." Commonwealth v. Collins, 888 A.2d at 583 n. 25.
In order to obtain uniformity in our rulings on this important issue, we must adhere to our appellate standard of review, which requires us to affirm the order of the PCRA court if the facts as found by the court are supported by the record, and the legal conclusions drawn therefrom are free from legal error. Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523, 532 (2009). This inquiry involves a mixed question of law and fact. Commonwealth
When reviewing a mixed question of law and fact, the level of deference to be given to the determination of the PCRA court "must be evaluated on an issue-by-issue basis, since some mixed questions are more heavily weighted toward fact, while others are more heavily weighted towards law." Commonwealth v. Crawley, 592 Pa. 222, 924 A.2d 612, 615 (2007). The more fact intensive the determination, the more deference a reviewing court should afford that conclusion. Id. at 615-15.
Thus, fact-based findings of a post-conviction court, which hears evidence and passes on the credibility of witnesses, should be given great deference, Commonwealth v. Jones, 590 Pa. 202, 912 A.2d 268, 293 (2006), particularly where, as here, the PCRA court judge also served as the trial court judge. See Williams v. Taylor, 529 U.S. at 396, 120 S.Ct. 1495 (emphasizing that the post conviction court's findings were made by the very judge who presided at the defendant's trial and also heard the additional evidence developed in the post-conviction hearing). Factual findings will not be disturbed on appeal if they are supported by the record, even where the record could support a contrary holding. Jones, 912 A.2d at 293. Adherence to these principles of appellate review mandates that we affirm the PCRA court's grant of a new penalty hearing.
We begin our analysis by noting that, "[generally, the question of whether the PCRA court erred in its determination that trial counsel was ineffective for failing to investigate and present sufficient mitigating evidence depends upon a myriad of factors, including the reasonableness of counsel's investigation, the mitigation evidence that was actually presented, and the mitigation evidence that could have been presented." Commonwealth v. Ligons, 971 A.2d at 1149 (citations omitted). None of these factors, by itself, is ultimately dispositive of the question presented, because even if the investigation conducted by counsel was unreasonable, such fact alone will not result in relief if the defendant cannot demonstrate that he was prejudiced by counsel's conduct. Id.
Looking first to trial counsel's investigation and presentation of mitigation evidence, the record reveals that trial counsel interviewed Martin and his parents, the fiancée of Martin's brother, and guards from the Lebanon County Correctional Facility. Trial counsel did not contact any of the professionals or institutions who had rendered substance abuse and/or mental health treatment to Martin; even though Martin's mother specifically gave counsel a list of names and addresses of such professionals, along with the dates on which they provided treatment to Martin.
At the penalty hearing, the defense relied upon two mitigating factors, namely, the age of the defendant at the time of the
At the PCRA proceeding, Martin presented the mitigating evidence he contends trial counsel overlooked. Specifically, as to mental health mitigation evidence, he presented the testimony and medical records of three mental health experts, and Martin's records from the Lebanon County Mental/Health Mental Retardation (MHMR) facility, none of which had been presented at trial. The testimony and documentary evidence established that, as early as age fifteen and continuing until after the murder at issue, when he was twenty-one, Martin suffered from Chronic Post Traumatic Stress Disorder (PTSD) and Depression, due to the repeated sexual molestations by his uncle. Martin was prescribed inter alia, Desipramine and Elavil at different points in time to treat his mental health issues.
The third expert, Dr. Julie Kessel, testified that she evaluated Martin after the murder and concurred with the previous diagnoses of PTSD and Depression, which are Axis I major mental disorders as contemplated by the Diagnostic and Statistical Manual for Mental Disorders published by the American Psychiatric Association. Dr. Kessel further opined that due to Martin's
Based on this evidence, the PCRA court concluded that Martin's claim of trial counsel ineffectiveness for failing to present mental health mitigation evidence had arguable merit. It cogently reasoned:
PCRA Court Opinion, 3/4/04, at 50.
To the extent the PCRA court's conclusion of arguable merit was based upon factual determinations, we find that there was record evidence to support it. Likewise, we agree with the PCRA court's legal conclusion that the claim of trial counsel ineffectiveness possessed arguable merit as the evidence ignored was available to trial counsel at the time of the penalty hearing, and would have supported two statutory mitigating circumstances that were not asserted by the defense.
Proceeding next to the reasonable basis prong of the ineffective assistance of counsel analysis, upon which the Commonwealth primarily bases its challenge, we emphasize that the parties do not dispute that counsel was aware of the mental health records that existed at the time of Martin's penalty hearing; rather the controversy revolves around whether trial counsel's failure to present such information to the penalty jury constituted a reasonable defense strategy.
As noted, the Commonwealth first argues that trial counsel had a reasonable basis for failing to present expert psychiatric testimony because he was following Martin's instructions not to divulge his history of mental illness. This allegation, however, is in direct conflict with the PCRA court's factual findings on this particular point.
The PCRA court concluded:
PCRA Court Opinion at 68-69.
Upon careful review, it is clear that the PCRA court's factual finding that Martin never directed trial counsel to refrain from investigating or presenting expert psychiatric testimony is supported by the record. Specifically, when trial counsel was asked about his discussion with Martin concerning the presentation of a psychological defense at the penalty phase, the following exchange occurred:
N.T. 9/9/02, at 97.
Any doubt about whether Martin, in fact, directed trial counsel to refrain from presenting expert psychiatric testimony is eliminated by the following excerpt from trial counsel's testimony.
N.T. 9/9/02, at 112. Accordingly, the Commonwealth's contention that trial counsel followed Martin's directives not to present expert psychological testimony is unsupported by the record.
The second strategic basis offered by the Commonwealth for trial counsel's failure to present expert psychological testimony is that trial counsel's experience with Lebanon County jurors indicated that they view psychiatry as "one step above witchcraft." N.T. 9/9/02, at 93. When asked about his defense strategy of only presenting the testimony of Martin's mother, trial counsel further explained:
N.T. 9/9/02, at 92. The PCRA court, however, expressly discounted this purported strategy, concluding that the scope of trial counsel's investigation "was the result of lack of attention rather than reasoned strategic judgment." PCRA Court Opinion at 67.
The court reached this conclusion based upon its factual finding that trial counsel did not receive information regarding Martin's particular mental health diagnosis or treatment until the day before the penalty hearing; and that counsel only obtained such evidence because Martin's mother, herself, retrieved the records when she discovered that trial counsel never contacted Martin's doctors. The PCRA court stated:
PCRA Court Opinion at 66-67 (footnotes omitted).
To the extent the PCRA court's conclusion that trial counsel lacked a reasonable basis for his strategy relied upon factual determinations, there was ample record evidence to support them. Specifically, Martin's mother testified that she went to Maryland to retrieve the mental health records when she learned trial counsel had not done so. N.T. 9/9/02, at 184-85. Further, Martin's treating doctors, Dr. Eisenberg and Dr. Keener, testified that they had never been contacted by trial counsel. N.T. 9/10/02, at 63, 67; N.T. 9/11/02, at 24.
Although set forth in a cursory fashion, the third and final strategic basis suggested by the Commonwealth for trial counsel's failure to present expert psychological testimony is that counsel was concerned that such evidence may "open the door" to evidence that Martin committed another murder after the murder of Goodman. Upon careful review, we find no support in the record for this proposition. Initially, we note that there is no evidence establishing that Martin was convicted of committing a second murder at the time the trial took place in the instant case. See N.T. 9/9/02, at 52 (indicating that Martin had been charged with murder in Nevada, which allegedly occurred after the murder in the instant case, but which charges had not been disposed of at the time of Martin's trial for Goodman's murder). Moreover, there is no evidence indicating that trial counsel refrained from presenting expert psychological testimony due to fears that evidence relating to the Nevada murder charges would be admitted. While counsel made a vague reference that expert psychological evidence could "open the door for any bad things that could happen to [Martin]," id. at 98, he in no way indicated that this concern was related to Martin's subsequent murder charge that had not, at that time, resulted in a conviction.
Finally, there is ample support in the record for the PCRA court's determination that Martin was prejudiced by trial counsel's failure to present mental health mitigation evidence. We recently reiterated that, "[t]o establish prejudice in a case involving the failure to investigate and present mitigating evidence, we must consider not only the evidence and argument presented at the penalty phase, but also the evidence and argument that would have been presented at the penalty hearing had trial counsel properly investigated such evidence." Ligons, 971 A.2d at 1150 (citing Commonwealth v. Malloy, 579 Pa. 425, 856 A.2d 767, 789 (2004)). We explained that "[prejudice is demonstrated when it is probable that at least one juror would have accepted at least one mitigating circumstance and found that it outweighed the aggravating circumstance found." Id.
In accordance with this standard, the PCRA court, who heard both the mitigation evidence presented at trial and the additional evidence developed in the post-conviction hearing, concluded that "[i]t is undeniable that both the volume and quality of this mitigating evidence is significant." PCRA Court Opinion, 3/4/04, at 73. Here, notwithstanding trial counsel's presentation of Martin's mother's testimony, which illuminated Martin's sexual abuse and his battle with drug and alcohol addiction, the jury found no mitigating circumstances at all. The evidence presented during the PCRA proceeding explicitly supported two mitigating circumstances not pursued by the defense, i.e., that Martin was under the influence of extreme mental or emotional disturbance at the time of the murder pursuant to 42 Pa.C.S. § 9711(e)(2); and that Martin's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired at the time of the offense, id. at § 9711(e)(3). Further, Martin's specific mental ailments of PTSD and depression arose from the repeated sexual abuse by his uncle, and the instant murder occurred after the male victim propositioned Martin for sex.
Comparing the evidence presented at the penalty hearing with that presented herein, the PCRA court held that it was probable that at least one juror would have accepted at least one mitigating circumstance, and found that it outweighed the aggravating circumstances found, i.e., commission of the killing during the perpetration of a felony, id. at § 9711(d)(6), and significant history of felony convictions involving
In conclusion, the PCRA court underwent a painstaking analysis regarding the claim that trial counsel was ineffective for failing to investigate and present mental health mitigating evidence. As the factual determinations made therein are supported by the record, and the legal conclusions drawn therefrom are not erroneous, on this basis alone, we affirm the order of the PCRA court. We therefore need not examine the factual basis for the Commonwealth's claim that the PCRA court erred by holding trial counsel ineffective for failing to present evidence that Martin had been abused during his institutionalization at Straight, when counsel was not informed that such abuse had occurred. We note however, that this Court has held that trial counsel cannot be deemed ineffective for failing to present evidence of alleged abuse where neither the defendant nor his family informed counsel of the abuse and there was no objective evidence of record that would have prompted counsel to look further into the issue. Commonwealth v. Brown, 582 Pa. 461, 872 A.2d 1139, 1149 (2005).
Accordingly, the order of the PCRA court, which denied Martin a new trial, but granted him a new penalty hearing, is affirmed.
Justice ORIE MELVIN did not participate in the consideration or decision of this case.
Justice TODD joins the opinion.
Chief Justice CASTILLE files a concurring opinion in which Justice McCAFFERY joins.
Justice SAYLOR files a concurring and dissenting opinion.
Justice EAKIN files a concurring and dissenting opinion.
Chief Justice CASTILLE.
I join the Majority Opinion, with the exception of the two points addressed below.
First, with respect to the Commonwealth's cross-appeal, I write to address the Majority's characterization of this Court's "divided opinions" from the recent past concerning mitigation claims, which seem to be raised in every capital PCRA appeal. Majority Op. at 195-97. The Majority suggests that these divisions may arise from the fact that each case "must be analyzed considering the unique facts presented. No two capital defendants will have the same life histories and no two counsel will proceed in the identical manner. Thus, what is considered reasonable in one case will not necessarily be considered reasonable in another." Id. at 29 (quoting Commonwealth v. Collins, 585 Pa. 45, 888 A.2d 564, 583 n. 25 (2005)).
The cases cited by the Majority do convey the difficult nature of the inquiry in question. I write merely to note that the U.S. Supreme Court recently has issued a series of decisions in this area. See Wood v. Allen, ___ U.S. ___, 130 S.Ct. 841, ___
The second point involves the Majority's discussion of the standard of review. The Majority states that a claim of counsel ineffectiveness with respect to mitigation poses a mixed question of law and fact, citing Commonwealth v. Rios, 591 Pa. 583, 920 A.2d 790, 810 (2007) and Strickland, 466 U.S. at 698, 104 S.Ct. 2052, which held that the ineffectiveness inquiry is generally comprised of mixed questions of fact and law. Majority Op. at 196-98. The Majority adds that when reviewing a mixed question of law and fact, the level of deference to a PCRA court's determinations varies because some mixed questions "are more heavily weighted toward fact, while others are more heavily weighted towards law." Id. (quoting Commonwealth v. Crawley, 592 Pa. 222, 924 A.2d 612, 615 (2007)). As such, according to the Majority, factual findings of the PCRA court, especially when the hearing judge also served as the trial judge, should be given "great deference" and will "not be disturbed on appeal if they are supported by the record, even where the record could support a contrary holding." Id. at 32 (citing Commonwealth v. Jones, 590 Pa. 202, 912 A.2d 268, 293 (2006)).
Some clarification may be beneficial. Strickland indeed classifies the overall ineffectiveness inquiry as a mixed question of law and fact, within which lower court findings of fact will be afforded deference. 466 U.S. at 698, 104 S.Ct. 2052. Along these lines, as Mr. Justice Saylor has recently explained:
Commonwealth v. Sattazahn, 597 Pa. 648, 952 A.2d 640, 657 n. 10 (2007) (internal citations omitted); see also Commonwealth v. Small, 602 Pa. 425, 980 A.2d 549, 583 (2009) (Saylor, J., concurring) ("[T]his Court has clarified that the appellate review of ineffectiveness matters is ultimately de novo. See [Rios]."). In addition to Justice Saylor's comments, I would suggest that our consideration of PCRA court assessments involving Strickland prejudice should be confined to matters where the trial court is better positioned to make an assessment, such as where demeanor, credibility, or the overall effect of evidence (where the PCRA judge was also the trial judge) is involved. Cf. Jefferson v. Upton, ___ U.S. ___, 130 S.Ct. 2217, 176 L.Ed.2d 1032 (2010) (per curiam) (remanding for determination of whether state court's factual findings warranted presumption of correctness; refusing to decide defendant's legal issue).
Here, however, the PCRA court's finding that appellant was prejudiced by counsel's penalty phase ineffectiveness was not based upon questions particular to the court's superior perspective, but rather on its comparison, from a remove, of the mitigation evidence actually presented at appellant's penalty hearing with the mitigation evidence that counsel did not investigate or present at the penalty phase, which the court deemed "significant" in terms of volume and quality. PCRA Ct. Op., 3/4/04, at 73. The court's perception of the great differential between the two mitigation "packages" convinced it that appellant had been prejudiced. I do not read the opinion below as being premised upon a perspective that is any different from that which this Court may glean from this record. Thus, although I agree with the Majority's affirmation on this point, I would hold that the court made no error of law in concluding that appellant was prejudiced by counsel's failure to investigate and present more extensive mitigation evidence at the penalty phase.
Justice McCAFFERY joins this opinion.
Justice SAYLOR, concurring and dissenting.
I join the majority opinion on the issue centered on asserted deficient stewardship connected with the potential for a provocation-based defense, see Majority Opinion, at 187-90; and other "key areas" of trial, see id. at 18-20; as well as the claim of an improper conditioning of a plea offer, see id. at 26-27. I concur in the result with respect to the balance of the claims, except that I dissent in favor of a remand with regard to the claim centered on "ghost jurors." See id. at 24-26. In support of my position, I offer the following comments.
Initially, the majority appears to credit Appellant's version of the facts, according to which the victim offered money to Appellant seeking sexual favors. See, e.g., Majority Opinion, at 180-81, 203, 203-04. To my knowledge, however, this has never been found to be a fact.
Brief for Appellant at 23-24. Appellant complains that the PCRA court engaged in "rank speculation," by painting the interrogating agent's motives as innocent. See id. at 24.
I agree with Appellant that there is an unwarranted degree of inference involved in the PCRA court's determining motivations based solely on extrajudicial documents, untested by cross-examination. Thus, rather than crediting the PCRA court's findings in this regard, I would rest the decision on the allocation of the burden of proof on post-conviction review to Appellant. In this regard, Appellant equally invites inferences which are not appropriate from the extrajudicial reports alone, and he did not present any additional evidence to support the inferences he would prefer to be drawn.
In terms of the claim centered on trial counsel's failure to present a provocation defense, see Majority Opinion, at 187-90, as previously indicated, I support the majority's
On the issue of alleged systemic deficiencies in the provision of counsel for indigent capital defense in Pennsylvania, particularly in light of our ongoing experience on appellate review, I believe this concern merits the Court's continuing attention. Cf. Commonwealth v. Ly, ___ Pa. ___, 989 A.2d 2, 2-5 (2010) (Saylor, J., dissenting). To me, the majority's explanation, that "[w]hatever the shortcomings of Lebanon County's indigent capital defense system may have been in the mid-1990s," the asserted error is not structural, Majority Opinion, at 193, is not very satisfying. Nevertheless, I also appreciate the constraints under which the majority is operating in the context of this post-conviction case and support its decision for the following reason—if a prisoner is to vindicate a systemic challenge as a component of a post-conviction claim, he will have to establish the deficiencies as a matter of record.
With regard to the alleged "ghost jurors" not included on the master list of prospective jurors required by statute, see Majority Opinion, at 192-95, I would accept Appellant's argument that material deviations from the regular processes for selection of venirepersons as prescribed by law represents structural error in the first instance. In my view, substantial irregularities in the empanelment of venirepersons goes to the fundamental integrity of the trial, and I believe that, where such errors are timely identified, the burden should fall to the government to take corrective measures. The remaining question, to my mind, is the degree to which this type of structural error is subject to issue preservation requirements.
There appears to be a split of authority among jurisdictions as to whether structural error may be waived. Compare Mains v. Commonwealth, 433 Mass. 30, 739 N.E.2d 1125, 1128 n. 3 (2000) ("Our cases have held that even structural error is subject to the doctrine of waiver."), with State v. Aragon, 221 Ariz. 88, 210 P.3d 1259, 1262 (Ariz.2009) (declining to apply waiver principles to an error found to have been structural). On the one hand, structural error, by definition, impacts the basic integrity of the trial, which must be assured to maintain public confidence in the criminal justice system. On the other hand, there is the possibility, if all structural errors are treated as non-waivable, for the defense to omit an objection to assure a reversal on appeal in the absence of an acquittal. See Reid v. State, 286 Ga. 484, 690 S.E.2d 177, 181 (2010) (reflecting the position that structural error is waivable).
On the subject of the Commonwealth's cross-appeal, I support the majority's holding and am in substantial agreement with its rationale. Nevertheless, I have some reservations about the award of a new penalty hearing.
In this regard, I note that it is likely that, under Commonwealth v. Sattazahn, 563 Pa. 533, 763 A.2d 359 (2000), the Commonwealth will offer evidence of Appellant's conviction for a brutal first-degree murder of a woman in Nevada, which ensued in the crime-spree following the Pennsylvania crimes. See id. at 551, 763 A.2d at 369 (explaining that subsequent convictions could be considered in aggravation on retrial); see also 42 Pa.C.S. § 9711(d)(9) (embodying the significant-history-of-felony-convictions aggravator). The admission of such evidence, it seems to me, would not only intensify the weight of the aggravation, but also would diffuse the defense case of a "provocation"-based, episodic killing (since Appellant killed again for very different reasons).
Perhaps for good reason, however, the prejudice standard is not phrased to consider the evidence which may be admitted on a retrial. Moreover, the Commonwealth did not pursue the argument that evidence available on retrial may be considered in a prejudice assessment before the PCRA court or here. Thus, although this Court has the ability to preserve a valid judgment for any reason appearing as of record, and I have taken the position that it is the original jury determination which controls in applying this principle,
Justice EAKIN, concurring and dissenting.
I concur with the majority's affirmation of guilt; however, I dissent from the affirmation of the PCRA court's grant of a new penalty hearing and would remand the case for reinstatement of Martin's original sentence.
The majority affirms the PCRA court's conclusion that Martin's claim of trial counsel's ineffectiveness was of arguable merit. The PCRA court found the record did not indicate Martin directed Attorney Kilgore to forgo investigation or presentation of evidence regarding his mental health history; the court cited Martin's mother's testimony and her references to
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294, 303-04 (2008) (citations and footnote omitted).
This Court has specifically held trial counsel's failure to present mitigating evidence does not constitute ineffectiveness if the defendant directs counsel not to present such evidence. See Commonwealth v. Sam, 535 Pa. 350, 635 A.2d 603, 611-12 (1993). This is true because a "criminal defendant has the right to decide whether mitigating evidence will be presented on his behalf." Id. If a defendant specifically directs trial counsel to avoid presenting mitigation evidence, counsel is under no duty to present such evidence; such action will not be found to comprise ineffectiveness. Id., at 612 (citing Commonwealth v. Tedford, 523 Pa. 305, 567 A.2d 610, 626-27 (1989)); see also Commonwealth v. Rios, 591 Pa. 583, 920 A.2d 790, 810-11 (2007) (counsel not ineffective in failing to present family testimony where appellant instructed counsel not to present additional witnesses). These principles control here.
Attorney Kilgore testified Martin was not interested in using his psychological treatments or problems during the trial or the penalty phase. Martin "did not want the general public to perceive of him of [sic] having psychological problems." N.T. PCRA Hearing, 9/9/02, at 97. Attorney Kilgore testified he chose to present Martin's mother's testimony during the penalty phase regarding psychological circumstances, with Martin's approval. Martin's mother was a very articulate woman, she was responsible regarding her job, and counsel did not believe a psychiatrist or psychologist was going to save Martin's life; however, he believed a mother's love could. Id., at 92. Attorney Kilgore stated his penalty phase decision was also based on his experience with Lebanon County jurors—"[s]ome people think that psychiatry is just one step above witchcraft." Id., at 93. This perception is not to be snickered at—counsel is duty-bound to understand the community in which the case is being adjudicated, and cannot be faulted for appreciating the predispositions of any significant portion of the jury pool. While we in the appellate world speak in broad and esoterically appealing terms and concepts, in the real world of trial decisions,
The fact that Attorney Kilgore did not contact any of the doctors who previously examined Martin, or contact any of the facilities in which Martin received treatment in any effort to establish the 42 Pa.C.S. §§ 9711(e)(2) or (3) mitigators, is irrelevant to the analysis. Counsel followed Martin's instructions regarding his psychological history, yet was able to reveal a bit of Martin's past through his mother's testimony; he respected Martin's instruction and still gave the jury insight into his client through a witness counsel felt would be more readily accepted by the jury. Whether it would be more readily accepted by appellate judges is not the issue.
Counsel is presumed effective, and to overcome this presumption, Martin must satisfy a three-pronged test and demonstrate that: (1) the underlying substantive claim has arguable merit; (2) counsel did not have a reasonable basis for his actions or failure to act; and (3) Martin suffered prejudice as a result of counsel's deficient performance. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987). The evidence presented to the PCRA court as confirmation of counsel's ineffectiveness in investigating and presenting mitigating evidence fails to meet this burden. Attorney Kilgore did not pursue such evidence under direction from his client. Attorney Kilgore was under no obligation to pressure Martin to present such evidence when it was quite clear he was not interested in the prospect. Nor, as the majority and PCRA court hold, was Attorney Kilgore required by the governing ineffectiveness standard to circumvent his client's wishes and investigate or present evidence on a line of argumentation his client clearly did not wish to pursue. Attorney Kilgore followed Martin's instructions, detrimental or not, and presented his case employing reasonable, strategic techniques. Pursuant to this Court's precedent, he should not be found ineffective for such actions. I would find the portion of the PCRA court's order granting a new penalty phase should be reversed and the case remanded for reinstatement of Martin's original death sentence.
Pa.R.Crim.P. 630(B)(1).
N.T. 9/9/02, at 98.
Halberg v. State, 903 P.2d 1090, 1098 (Alaska Ct.App.1995) (citations omitted).
