Commonwealth v. Mason, L., Aplt

[J-1-2015]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT

SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 676 CAP
:
Appellee : Appeal from the Order entered on
: 01/03/2013 in the Court of Common Pleas,
: Criminal Division of Philadelphia County at
v. : No. CP-51-CR-0700431-1994
:
: SUBMITTED: January 5, 2015
LENWOOD MASON, :
:
Appellant :

OPINION

MR. JUSTICE STEVENS DECIDED: December 29, 2015

This is a collateral capital appeal from an order of the Court of Common Pleas of

Philadelphia County dismissing Appellant Lenwood Mason’s first petition for relief under

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.1

Appellant’s convictions arose from the June 19, 1994, stabbing death of Iona

Jeffries. The underlying facts as adduced at trial were enunciated by this Court in

affirming Appellant’s conviction and sentence on direct appeal:

[O]n March 31, 1994, police were called to the 3800 block of Clearfield
Street in Philadelphia. Officer Terry Brown observed Appellant walking on
Clearfield Street, with Iona Jeffries close to his side. Noting a frightened
look on Ms. Jeffries' face, the officer approached her and asked if she was

1 This Court has exclusive jurisdiction over appeals from the grant or denial of
post-conviction relief in death penalty cases. 42 Pa.C.S. § 9546(d).
 all right. The officer noticed bruises on Ms. Jeffries' forehead, shoulder,
neck and mouth. Although Appellant told the officer that Ms. Jeffries had
been attacked by several other women, Ms. Jeffries informed the officer that
Appellant had actually caused her injuries. Ms. Jeffries explained to the
officer that she was reluctant to press charges against Appellant, as she
feared he would kill her. Based on his [sic] own observations and Ms.
Jeffries' statements, however, the officer placed Appellant under arrest.
Approximately three months later, on the evening of June 18, 1994,
Ms. Jeffries was at a bar, Cadillac Slim's, with Appellant and several of her
friends. Appellant had been released from prison two days earlier, on June
16, 1994. When Ms. Jeffries and her friends decided to leave Cadillac
Slim's and go to another club, Ms. Jeffries asked that a male acquaintance
drive Appellant home, as she did not want him to accompany her to the
club. Upset by Ms. Jeffries' plans to exclude him, Appellant yelled, “You
want it like that?” and ran out of the bar.
At approximately 9:30 the following morning, Ms. Jeffries' mother,
Mrs. Wisteria Jeffries, was at her home when she heard Appellant banging
on the door. As Wisteria Jeffries approached the door, she saw
Appellant's hand protruding through the screen door. When Wisteria
Jeffries asked Appellant what he wanted, he replied that he needed to
speak with Ms. Jeffries. Wisteria Jeffries explained that Ms. Jeffries was
asleep. After Appellant insisted that he speak with Ms. Jeffries, Wisteria
Jeffries told Appellant to wait outside while she got Ms. Jeffries. She
locked the door and went upstairs to Ms. Jeffries' room, where Ms. Jeffries
was sleeping on a bed with her then three year-old son, Anthony. Ms.
Jeffries refused to come downstairs. Wisteria Jeffries returned to the front
door and told Appellant that Ms. Jeffries was sleeping and that he would
have to wait to speak with her. Appellant then forced his way into the
house, pushed past Wisteria Jeffries, and ran up the stairs. Wisteria
Jeffries immediately called the police.
Wisteria Jeffries retrieved a knife from the kitchen and began to head
upstairs, when she saw Appellant descending the steps. Appellant stated
to Wisteria Jeffries, “I got her now.” At that point, Wisteria Jeffries
attempted to stab Appellant, but he pushed her aside and ran outside,
where a neighbor, Greg Bell, saw Appellant placing what appeared to be a
knife into the waistband of his pants. Wisteria Jeffries ran upstairs to Ms.
Jeffries' bedroom and found Ms. Jeffries bleeding profusely from multiple
stab wounds. Police and rescue units arrived and Ms. Jeffries was taken
to the hospital, where she was pronounced dead.[2] Later that same day,
Appellant surrendered to the police and was charged with murder in the
first-degree, burglary and possessing an instrument of crime.

2 According to the testimony of the chief medical examiner for Philadelphia County, Ms.
Jeffries' death was caused by eighteen stab wounds to her body, including wounds to her
head, neck, chest, back, abdomen, arm, groin and leg.

[J-1-2015] - 2
Commonwealth v. Mason, 559 Pa. 500, 507-08, 741 A.2d 708, 712 (1999).

Attorney Thomas W. Moore, Jr., Esq., undertook Appellant’s representation, hiring

an investigator, interviewing Appellant and his mother, and retaining Dr. Allan Tepper, an

expert in the field of forensic and clinical psychology, to perform a psychological

evaluation of Appellant and to provide testimony during the guilt and sentencing phases

of trial. As part of his evaluation, Dr. Tepper conducted a clinical interview of Appellant,

administered intelligence tests, interviewed Appellant’s mother, and reviewed police

discovery materials along with Philadelphia School District records and past drug

treatment records. Letter from Dr. Allan Tepper to trial counsel, dated 3/28/95;

Declaration and Affidavit of Dr. Allan Tepper, dated 10/29/07, filed 11/1/07.

A jury trial before the Honorable C. Darnell Jones was conducted in February

1996. As we noted on direct appeal, the trial included the following testimony:

Appellant testified on his own behalf, claiming that he had been drinking
and doing drugs, including PCP for the first time, at the bar on the night
before the murder. He testified that after he smoked the PCP, everything
went blurry and that he did not recall leaving Cadillac Slim's or going to Ms.
Jeffries' house on the morning of her murder. He further maintained that
he did not regain his senses again until late in the evening on the day of the
murder, when he was already in jail. Appellant's mother and brother [Kevin
Mason] also testified in Appellant's defense. Essentially, they claimed that
when they saw Appellant on the day of the murder, he was under the
influence of drugs and that his condition was unlike any “high” that they had
ever seen him experience.

Mason, 559 Pa. at 509, 741 A.2d at 713. On February 15, 1996, the jury found Appellant

guilty of first-degree murder, burglary, and possessing an instrument of crime. At the

penalty phase of trial, Judge Jones instructed the jury with regard to three aggravating

[J-1-2015] - 3
circumstances and four mitigating circumstances. 3 All the evidence presented on

Appellant’s behalf during the guilt phase of trial was incorporated during the penalty

phase, and Appellant’s mother, his uncle, Larry Lawhorn, and Dr. Tepper provided

additional testimony to support the mitigating circumstances.4 Following the penalty

phase, the jury returned a verdict of death after finding two aggravating circumstances

and no mitigating circumstances.5 Judge Jones formally imposed the death sentence on

February 20, 1996.

Following Appellant’s conviction and sentence, trial counsel was replaced by

Gerald Stein, Esq., who filed a direct appeal on Appellant’s behalf. Appellant initially

challenged the sufficiency of the evidence to support the jury’s verdict of first-degree

murder on the grounds that (1) there was insufficient evidence to establish that Appellant

3 The aggravating circumstances were that “[t]he defendant committed a killing while in
the perpetration of a felony,” 42 Pa.C.S. § 9711(d)(6); “[i]n the commission of the offense
the defendant knowingly created a grave risk of death to another person in addition to the
victim of the offense,” Id. § 9711(d)(7); and “[t]he defendant has a significant history of
felony convictions involving the use or threat of violence to the person.” Id. § 9711(d)(9).
N.T. 2/16/96 at 130.
The mitigating circumstances were that “[t]he defendant was under the influence of
extreme mental or emotional disturbance,” 42 Pa.C.S. § 9711(e)(2), “[t]he capacity of the
defendant to appreciate the criminality of his conduct or to conform his conduct to the
requirements of law was substantially impaired,” Id. § 9711(e)(3), “[t]he age of the
defendant at the time of the crime,” Id. § 9711(e)(4), and “[a]ny other evidence of
mitigation concerning the character and record of the defendant and the circumstances of
his offense.” Id. § 9711(e)(8). N.T. 2/16/96 at 131-132.
4 Although Dr. Tepper had been retained by counsel to provide testimony during both the

guilt and sentencing phases of trial, following his evaluation of Appellant he had informed
trial counsel that he could not provide evidence in support of any guilt phase defenses,
thus trial counsel only presented Dr. Tepper’s testimony during the penalty phase. N.T.
2/17/96 at 12-13.
5 The jury found that Appellant committed the murder while in the commission of a felony

and that he had a significant history of committing crimes of violence.

[J-1-2015] - 4
acted with the necessary premeditation; (2) the jury erred in failing to find that Appellant

was acting under the “heat of passion” when he fatally stabbed Ms. Jeffries; and (3) the

jury erred in finding a specific intent to kill because Appellant presented evidence to show

that he was intoxicated at the time of the killing. See Mason, 559 Pa. at 509-511, 741

A.2d at 713-714. This Court found no merit to Appellant’s sufficiency claims,

determining that: (1) the circumstances of the case did not, as a matter of law, foreclose a

finding of premeditation; (2) the record did not support a heat of passion claim since

Appellant claimed that he was so intoxicated at the time of the stabbing that he could not

remember whether words were exchanged which would give rise to a heat of passion

defense, there was no evidence that the victim did anything immediately before the

stabbing to provoke Appellant, and the victim’s son testified that his mother was just lying

on the bed when Appellant came into the room and began stabbing her; and (3) it was

well within the power of the jury to make a credibility determination and disbelieve the

evidence presented by Appellant to establish that intoxication prevented him from forming

a specific intent to kill. Id., 559 Pa. at 510-512, 741 A.2d at 713-714.6

Appellant’s direct appeal additionally alleged that trial counsel rendered ineffective

assistance during the guilt phase of Appellant’s trial by (1) failing to properly consult with

Appellant prior to trial; (2) failing to conduct an adequate pre-trial investigation, which

would have revealed corroborative evidence that Appellant and the victim reconciled and

spent time together in the days immediately before the murder; and (3) referring to the

stabbing as a heinous crime during his guilt phase closing argument. Id., 559 Pa. at 513,

6 In addition to disputing the sufficiency of the evidence, Appellant also unsuccessfully
argued that the verdict of first-degree murder was against the weight of the evidence.

[J-1-2015] - 5
515, 518, 741 A.2d at 715, 716, 718. This Court determined, however, that Appellant

had failed to show that counsel was ineffective. Specifically, we explained that the

amount of pre-trial consultation is not a legitimate basis for inferring the total extent and

adequacy of counsel's pre-trial preparation, and we further noted that Appellant had failed

to allege any issues that his counsel should have raised or any beneficial information that

his counsel would have discovered had further pre-trial consultations been held. Id., 559

Pa. at 514, 741 A.2d at 715 Further, regarding the adequacy of counsel’s pretrial

investigation, we found that the jury was aware of the apparent reconciliation through the

testimony of several witnesses, including the victim’s mother herself; thus, the evidence

allegedly missed was merely cumulative, and, regardless, would not have precluded the

first-degree murder conviction. Id., 559 Pa. at 515-516, 741 A.2d at 716-717. Lastly, as

to counsel’s guilt phase closing argument, this Court determined the record reflected that

the challenged comment was merely a reminder to the jury that evidence, not emotion,

should control the outcome of the case, and, when read in context, the comment was

clearly part of counsel's strategy to persuade the jury that despite the crime's

gruesomeness the evidence showed Appellant was too intoxicated to form the specific

intent necessary for a first-degree murder conviction. Id., 559 Pa. at 518-519, 741 A.2d

at 718.

In addition to leveling guilt phase ineffectiveness claims, Appellant also asserted

on direct appeal that he was entitled to a new trial based on after discovered evidence

consisting of a letter written by the victim to Appellant while he was imprisoned and a

picture of the victim visiting Appellant in prison, which, Appellant asserted, demonstrated

their close and intimate relationship. Id., 559 Pa. at 517, 741 A.2d at 717. Again, this

[J-1-2015] - 6
Court determined that no relief was due since Appellant failed to meet any of the

requirements for the grant of a new trial based on after-discovered evidence. Id.

Appellant’s sentence was thus affirmed by this Court on November 24, 1999, and it

became final on October 2, 2000, when the United States Supreme Court denied

certiorari. Appellant’s execution was subsequently scheduled for March 8, 2001, but

was stayed following the filing of a timely pro se PCRA petition on February 13, 2001.7

Following several extensions of time, Attorney Patrick Egan filed an amended petition on

Appellant’s behalf on January 25, 2002, raising thirteen claims for relief and asserting

entitlement to an evidentiary hearing and discovery.8 In addition to the January 25, 2002

amended PCRA petition, Appellant submitted a variety of additional documents including:

a “Motion to Immediately Re-Sentence Petitioner to Life Imprisonment” pursuant to Atkins

v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) and an accompanying

“Supplemental Amended PCRA Petition”;9 a “Supplement and Response in Opposition

7 Pursuant to Section 9545 of the PCRA, “[a]ny petition under this subchapter, including a
second or subsequent petition, shall be filed within one year of the date the judgment
becomes final L .” 42 Pa.C.S. § 9545(b)(1).
8 The January 25, 2002 petition and several subsequent pleadings were captioned as

“Petition[s] for Habeas Corpus Relief Pursuant to Article I, Section 14 of the Pennsylvania
Constitution and Statutory Post Conviction Relief Under 42 Pa.C.S. § 9542 et seq. and
Consolidated Memorandum of Law.” Notwithstanding Appellant's captioning, this matter
has been properly treated as a PCRA petition. See Commonwealth v. Breakiron, 566
Pa. 323, 327, 781 A.2d 94, 96 (2001) (“As Appellant alleges violations of the constitution
and of law which undermine the truth-determining process, his claims are cognizable only
under the PCRA and the writ of habeas corpus is unavailable.”).
9 Appellant’s supplemental amended PCRA petition asserted that he is “[intellectually

disabled]” and is thus exempt from execution in accordance with Atkins. The term
“mental retardation” had been widely accepted by the medical community and was used
in Atkins. The High Court has since approved the replacement of “mental retardation”
with the phrase “intellectual disability” to describe the identical diagnosis. Hall v. Florida,
___ U.S. ___, 134 S.Ct. 1986, 1990, 188 L.Ed.2d 1007 (2014) (citing American
(continuedL)

[J-1-2015] - 7
to the Commonwealth’s Motion to Dismiss and Reply in Support of His Motion for Relief

Pursuant to Atkins v. Virginia;” and two “Supplemental” PCRA petitions. In response, the

Commonwealth filed several motions to dismiss, asserting that the majority of Appellant’s

claims were previously litigated or waived, or, if reviewable, meritless. Additionally, the

Commonwealth assailed as boilerplate Appellant’s allegations of appellate counsel’s

ineffectiveness, asserting that such claims are insufficient to overcome waiver.

Over the course of an eleven-year period, the parties’ pleadings, along with

various discovery requests and numerous ancillary motions, were heard first by Judge

Jones and then by the Honorable M. Teresa Sarmina. Judge Jones scheduled an

evidentiary hearing on several of Appellant’s claims, but before the hearing occurred,

Judge Jones was appointed to the Federal District Court and Appellant’s case was

transferred to Judge Sarmina. The evidentiary hearing was eventually held in October

2011, and was limited to Appellant’s penalty phase issues. During the five day hearing,

testimony on behalf of Appellant was elicited from Dr. Robert L. Sadoff, an expert in

forensic psychiatry; Dr. Gerald Cooke, an expert in forensic and neuropsychology; Dr.

Richard Restak, an expert in neurology; Dr. Allan Tepper, Appellant’s trial expert;

Attorney Thomas Moore, Appellant’s trial counsel; Attorney Gerald Stein, Appellant’s

direct appeal counsel; Thelma Mason, Appellant’s mother; Larry Lawhorn, Appellant’s

(Lcontinued)
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 33 (5th ed.
2013) (DSM–5)); American Association on Intellectual and Developmental Disabilities,
Intellectual Disability: Definition, Classification, and Systems of Support 3 (11th ed. 2010)
(AAIDD Manual)). While we note that this case was litigated before Hall was decided,
and the parties and their experts use both phrases, we opt to use the more recent
nomenclature “intellectually disabled” unless the former term is integral to a quotation
reproduced herein.

[J-1-2015] - 8
uncle; and Brian Mason, Appellant’s brother. The Commonwealth, in turn, elicited the

testimony of Dr. Barry Gordon, an expert in behavioral neurology with special expertise in

neuropsychology.

At the close of testimony, the parties were directed to file post-hearing submissions

addressing the penalty phase issues that had been the subject of the evidentiary hearing.

N.T. 10/28/11 at 52. At that time it became clear that Appellant was concerned he had

guilt phase claims that remained outstanding, as counsel expressed uncertainty as to

which claims had been disposed of by Judge Jones and which claims were unresolved.

Id. at 50-51. Appellant’s counsel indicated to Judge Sarmina that he would provide the

court with the status of Appellant’s issues, and Judge Sarmina requested that, in addition

to addressing the penalty phase mitigation issues, the parties’ post-hearing submissions

also indicate the issues upon which Judge Jones definitively ruled and what issues were

“still open.” Id. at 51-52. Judge Sarmina then set aside February 13, 2012, “for

argument on this whole case, we will be able to see just where everything is at. And

what issues might be still left. . . .” Id. at 54-55.

The parties filed the requested post-hearing submissions on February 6, 2012.

Appellant initially argued to the court that trial counsel failed to fully investigate

Appellant’s background and provide such background information to his expert.

Appellant’s Post-Hearing Memorandum at 3. 10 Citing the affidavit and testimony of

10 Appellant specifically faulted trial counsel for failing to obtain the following records:
(1) “Complete Philadelphia School Records,” which Appellant asserted revealed the
extent of his learning disability. Id. at 7 (citing PCRA exh. C-56, 60, 62, 69, 72, 91);
(2) “Albert Einstein Medical Center Records,” which Appellant asserted revealed that he
was treated for a drug overdose as a teenager and had a history of cocaine abuse. Id. at
8 (citing PCRA exh. C-166);
(continuedL)

[J-1-2015] - 9
Thelma Mason and the affidavits of Brian Mason and MaryAnn Mason, Appellant also

argued that trial counsel failed to conduct penalty hearing-focused interviews with

Appellant’s family, which Appellant suggested would have revealed (1) Appellant’s early

developmental problems and his failure to meet expected standards, (2) Appellant’s

hyperactivity and accident prone nature, (3) the use of corporal punishment in Appellant’s

household, (4) Appellant’s difficulty adjusting in a predominantly white school and white

neighborhood, (5) Appellant’s drug use as a teen and subsequent addiction that caused

paranoid hallucinations, and (6) Appellant’s drug use on the night before the murder. Id.

at 9-13. Appellant further maintained that trial counsel failed to investigate Appellant’s

mental health deficiencies, and, despite Dr. Tepper’s pre-trial request, failed to provide

additional school records, records of past psychiatric treatment and alcohol and drug

abuse treatment, and criminal records, which, Appellant asserted, would have prompted

Dr. Tepper to recommended neuropsychological testing that would have revealed

Appellant suffered from organic brain damage and enabled Dr. Tepper to opine on the

presence of statutory and non-statutory mental health mitigation. In support of this

(Lcontinued)
(3) “Philadelphia Prison System Records,” which Appellant asserted revealed “important
background data,” possible suicide attempts, head trauma, and heavy drug use. Id.
(citing PCRA exh. C-218, 226, 230, 257, 263, 269, 276, 281, 282, 287, 288);
(4) The [March 11, 1981] Glen Mills Schools Diagnostic Report, which Appellant asserted
revealed that he had taken IQ tests which revealed scores of 71 and 83, that he was
performing well below his grade level in reading and math, and that he daydreamed
excessively and had been described as “spacey.” Id. (citing PCRA exh. C-329, 331,
333, 334); and
(5) “Pre-sentence Reports and Mental Health Evaluations [dated 12/3/85, 12/10/90,
4/17/91 and 6/29/94], which Appellant asserted revealed a pattern of adjustment
problems, self-reported history of impulsivity under stress, and schizoid personality
disorder diagnosis. Id. at 9 (citing PCRA exh. C-337, 338, 363, 367, 368, 390, 391).

[J-1-2015] - 10
argument, Appellant cited to the testimony of Doctors Cooke, Sadoff and Restak, who,

according to Appellant, had the benefit of Appellant’s full records and offered opinions

that Appellant suffered from a variety of cognitive conditions that affected his behavior

and would have altered the jury’s determination as to the mitigating factors set forth in

Sections 9711(e)(2) and (3). Id. at 15-21.11

In addition to raising claims of counsels’ ineffectiveness, Appellant also argued to

the court that the prosecutor’s guilt phase closing arguments improperly urged the jury to

convict Appellant because he had no remorse or sympathy for the victim. Id. at 40 (citing

N.T. 2/14/96 at 99-100).12 Appellant acknowledged that his trial counsel objected to the

prosecutor’s comment and the objection was sustained, but Appellant contended that trial

counsel rendered ineffective assistance for failing additionally to request a curative jury

instruction and that appellate counsel rendered ineffective assistance for failing to raise

trial counsel’s error. Id. at 41.

The Commonwealth countered that trial counsel properly hired and relied on the

opinions of Dr. Tepper, who reviewed a majority of the records that counsel allegedly

failed to present, and, following that review, did not recommend any additional testing.

Commonwealth’s post hearing brief at 2-3. The Commonwealth further perceived that

the information contained in the “additional” records was nothing more than cumulative of

information presented to the jury from other sources. Id. at 6 The Commonwealth

11 In addition to raising these instances of trial counsel’s alleged ineffectiveness,
Appellant argued that appellate counsel erred in failing to argue trial counsel’s deficient
performance on direct appeal. Post-Hearing Memorandum of Law, filed 2/6/12 at 36-39.
12 Appellant’s counsel later explained that he chose not to take evidence on the improper

closing argument issue during the evidentiary hearing, believing it unnecessary because
the issue involved legal argument only. N.T. 2/13/12 at 7.

[J-1-2015] - 11
insisted that even if the jury had been presented with the opinions of the experts retained

by Appellant at the PCRA stage, the “mild” impairment from which they believed Appellant

to suffer would not have compelled a different mitigation/aggravation conclusion. Id. at

7-13. Similarly, the Commonwealth disputed the contention that ineffectiveness could

be found based on counsel’s tactics with regard to family testimony. Id. at 14-16.

Oral argument occurred before Judge Sarmina on February 13, 2012. Appellant

immediately complained to the court that his counsel had not addressed the outstanding

guilt phase issues, to which Appellant’s counsel responded that he didn’t include them in

the post-hearing memorandum submitted on Appellant’s behalf because the penalty

phase issues addressed at the hearing were extensive and “it certainly did not seem the

appropriate time to do so.” N.T. 2/13/12 at 4-5. Appellant’s counsel maintained that the

issues “have not been waived,” and indicated his intention to address them “at the

appropriate time.” Id. at 5. Before proceeding to hear argument on the penalty phase

issues, Judge Sarmina again requested that the parties indicate what issues were before

the court. Id. at 8.13

Following additional oral argument on June 22, 2012, Judge Sarmina stated on the

record that Appellant had not met the prejudice prong required to achieve relief on

Appellant’s claim that trial counsel rendered ineffective assistance at the penalty phase of

trial. N.T. 6/22/12 at 19. In so finding, Judge Sarmina indicated that she had credited

the testimony of Dr. Gordon and had concluded “on balance the prejudice prong has not

13 The parties filed additional post-hearing submissions, but they appear to be in
response to the court’s request that they address how the court should reweigh the
aggravating and mitigating evidence, and do not address what other issue remained
outstanding. Post-hearing submissions filed 6/19/12.

[J-1-2015] - 12
been met.” Id. Following this determination, Appellant’s counsel again expressed his

uncertainty regarding what other issues remained outstanding and requested further

opportunity to brief the court. Id. at 22-23. Acknowledging the necessity of a formal

ruling on whatever claims remained undecided, Judge Sarmina permitted additional

briefing. Id. at 23-24.

On August 28, 2012, Appellant filed a “Motion for Reconsideration and

Supplemental Post-Hearing Memorandum of Law,” indicating that despite “thoroughly

reviewing the record, it is not entirely clear which claims Judge Jones had previously ruled

on.” Motion for Reconsideration and Supplemental Post-Hearing Memorandum of Law

filed 8/28/12 at 1. The motion then sought reconsideration of Judge Sarmina’s

determination that Appellant has not proven trial counsel’s ineffectiveness with regard to

the penalty phase claims and argued two additional guilt phase claims that: (1) the trial

court failed to instruct the jury that “life imprisonment” means life without the possibility of

parole and counsel was ineffective for failing to seek such an instruction, and (2) trial

counsel was ineffective for failing to present expert testimony and additional evidence in

support of heat of passion and voluntary intoxication defenses. Id. at 10, 14. Judge

Sarmina heard final oral argument on January 3, 2013, and denied Appellant

post-conviction relief. Appellant filed a timely appeal of the PCRA court’s denial of

relief.14

14 Appellant complied with the court’s directive to file a Pa.R.A.P. 1925(b) concise
statement of matters complained of on appeal, alerting the court to twenty four allegations
of error. Pa.R.A.P. 1925(b) Statement filed 2/20/13. Judge Sarmina filed a responsive
Rule 1925(a) opinion.

[J-1-2015] - 13
 “Our review of a PCRA court's decision is limited to examining whether the PCRA

court's findings of fact are supported by the record, and whether its conclusions of law are

free from legal error.” Commonwealth v. Hanible, 612 Pa. 183, 204, 30 A.3d 426, 438

(2011) (citing Commonwealth v. Colavita, 606 Pa. 1, 21, 993 A.2d 874, 886 (2010)). We

view the findings of the PCRA court and the evidence of record in a light most favorable to

the prevailing party. Id. With respect to the PCRA court’s decision to deny a request for

an evidentiary hearing, or to hold a limited evidentiary hearing, such a decision is within

the discretion of the PCRA court and will not be overturned absent an abuse of discretion.

See Commonwealth v. Reid, ___ Pa. ___, 99 A.3d 470, 485 (2014). “The PCRA court’s

credibility determinations, when supported by the record, are binding on this Court;

however, we apply a de novo standard of review to the PCRA court’s legal conclusions.”

Commonwealth v. Roney, 622 Pa. 1, 16, 79 A.3d 595, 603 (2013). The denial of an

appellant's request for discovery is reviewed for abuse of discretion. Id.

To be entitled to PCRA relief, a petitioner bears the burden of establishing, by a

preponderance of the evidence, that his conviction or sentence resulted from one or more

of the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2), which include a violation of

the Pennsylvania or United States Constitution or ineffectiveness of counsel, any one of

which “so undermined the truth-determining process that no reliable adjudication of guilt

or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(i) and (ii). Further, the

petitioner must show that the allegation of error has not been previously litigated or

waived pursuant to Pa.C.S. § 9543(a)(3); See Commonwealth v. Baumhammers, 625 Pa.

354, 364, 92 A.3d 708, 714 (2014).

An issue has been previously litigated if “the highest appellate court in
which the petitioner could have had review as a matter of right has ruled on

[J-1-2015] - 14
 the merits of the issue.” A PCRA claim is waived “if the petitioner could
have raised it but failed to do so before trial, at trial, during unitary review, on
appeal or in a prior state postconviction proceeding.”

Commonwealth v. Martin, 607 Pa. 165, 176, 5 A.3d 177, 183 (2010) (citing 42 Pa.C.S. §

9544(a)(2), (b)).

The majority of Appellant’s claims assert that his trial and appellate counsel

provided ineffective assistance. Counsel is presumed effective, and in order to

overcome that presumption a PCRA petitioner must plead and prove that: (1) the legal

claim underlying the ineffectiveness claim has arguable merit; (2) counsel's action or

inaction lacked any reasonable basis designed to effectuate petitioner’s interest; and (3)

counsel's action or inaction resulted in prejudice to petitioner. Commonwealth v.

Fletcher, 604 Pa. 493, 515, 986 A.2d 759, 772 (2009); Commonwealth v. Natividad, 595

Pa. 188, 207, 938 A.2d 310, 321 (2007).15 “With regard to ‘reasonable basis,’ the PCRA

court ‘does not question whether there were other more logical courses of action which

counsel could have pursued; rather, [the court] must examine whether counsel's

decisions had any reasonable basis.’” Commonwealth v. Bardo, ___Pa.___, 105 A.3d

678, 684 (2014) (citing Roney, 622 Pa. at 17, 79 A.3d at 604)). “Where matters of

strategy and tactics are concerned, ‘[a] finding that a chosen strategy lacked a

reasonable basis is not warranted unless it can be concluded that an alternative not

chosen offered a potential for success substantially greater than the course actually

pursued.’” Commonwealth v. Spotz, 624 Pa. 4, 33, 84 A.3d 294, 311-12 (2014) (citing

15 “The three-factor approach utilized in Pennsylvania derives from our application in
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987), of the ‘performance and
prejudice’ test articulated by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Commonwealth v.
Dennis, 597 Pa. 159, 174, 950 A.2d 945, 954 (2008).

[J-1-2015] - 15
Colavita, 606 Pa. at 21, 993 A.2d at 887). To demonstrate prejudice, a petitioner must

show that there is a reasonable probability that, but for counsel's actions or inactions, the

result of the proceeding would have been different. See Strickland, 466 U.S. at 694;

Commonwealth v. Laird, ___ Pa ___,.119 A.3d 972, 978 (2015); Commonwealth v.

Tedford, 598 Pa. 639, 659, 960 A.2d 1, 12 (2008). Failure to establish any prong of the

Strickland/Pierce test will defeat an ineffectiveness claim. Commonwealth v. Walker,

613 Pa. 601, 612, 36 A.3d 1, 7 (2011).

Because Appellant was represented by new counsel on direct appeal and that

appeal predated Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), Appellant

was required to raise allegations of trial counsel’s ineffectiveness at that time, on pain of

waiver. See 42 Pa.C.S. § 9544(b); Fletcher, 604 Pa. at 515, 986 A.2d at 772-73;

Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687, 695 n. 6 (1977).16 Although

Appellant did raise several allegations of trial counsel’s ineffectiveness on direct appeal,

the issues regarding trial counsel’s performance that Appellant currently asks this court to

decide were not among them. We note, however, that Appellant’s January 25, 2002

amended PCRA petition included the following claim:

To the extent that prior counsel failed to properly investigate and to make
the objections and arguments raised throughout this petition, at trial, in
post-trial motions and on direct appeal, counsel were ineffective, in violation
of Petitioner’s rights under the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution and the corresponding
provisions of the Pennsylvania Constitution.

16 Grant held that claims of counsel’s ineffectiveness generally should wait until collateral
review, overruling the prior procedural rule announced in Hubbard, which required that
ineffectiveness claims be raised as soon as an appellant had new counsel. See
Commonwealth v. Bridges, 584 Pa. 589, 597, 886 A.2d 1127, 1132 (2005);
Commonwealth v. Edmiston, 578 Pa. 284, 294-95, 851 A.2d 883, 889 (2004).

[J-1-2015] - 16
Amended PCRA Petition filed 1/25/02. Additionally, Appellant’s brief to this Court

attaches to each of the claims of trial counsel’s ineffectiveness a layered claim that

appellate counsel rendered ineffective assistance for failing to include those claims on

direct appeal.

Where claims of trial counsel ineffectiveness have already been, or could
previously have been, litigated Lthe only way a petitioner can successfully
mount a challenge to the effectiveness of counsel is to assert a “layered”
claim of ineffectiveness, establishing first that appellate counsel was
ineffective in failing to challenge the effectiveness of trial counsel, which
requires as a threshold matter that trial counsel was ineffective in the first
instance.

Commonwealth v. Dennis, 597 Pa. 159, 175, 950 A.2d 945, 954 (2008) (citation omitted).

To prevail upon a layered ineffectiveness claim a petitioner must present argument on the

three prongs of the Strickland/Pierce test as to each relevant layer of representation.

Commonwealth v. Reaves, 592 Pa. 134, 147-48, 923 A.2d 1119, 1127-28 (2007).

Thus, Appellant may still be entitled to PCRA relief if he can demonstrate

ineffectiveness as to both trial counsel and appellate counsel. The Commonwealth

contends that Appellant has not accomplished this because his brief offers only bald

assertions of appellate counsel’s ineffectiveness which fail to adequately address all

three Strickland/Pierce criteria as to those layered claims. Commonwealth’s brief at

13-15 (citing Commonwealth v. Steele, 599 Pa. 341, 361, 961 A.2d 786, 797 (2008) for

the proposition that “where an appellant fails to meaningfully discuss all three prongs of

the ineffectiveness test, this Court is ‘constrained to find such claims waived for lack of

development.’”).17

17 The Commonwealth also faults Appellant for failing to cite to any affidavit or
certification from appellate counsel, and disputes Appellant’s claim that it is obligatory
(continuedL)

[J-1-2015] - 17
 The Commonwealth acknowledges, however, that this Court has held that it may

be appropriate to remand the case rather than deny relief where deficiencies in

developing claims of appellate counsel ineffectiveness "mirror those in the PCRA

pleadings." Id. at 15, n. 2 (citing Walker, 613 Pa. at 614, 36 A.3d at 8-9). Remand is

unnecessary here, the Commonwealth avers, because even assuming Appellant’s claims

can be deemed to mirror those presented below, he has already had ample opportunity to

develop and support them, and, in any event, his underlying claims are without merit. Id.

This Court has found that in cases where the arguable merit of the underlying claim

of trial counsel's ineffectiveness has been established, remand may be warranted for the

opportunity to correct a deficient pleading of the remaining two prongs of the

Stickland/Pierce test regarding appellate counsel's ineffectiveness. Commonwealth v.

Moore, 580 Pa. 279, 290, 860 A.2d 88, 94 (2004) (italics added). We have also

concluded, however, that there is no need to remand a PCRA petition when the petitioner

has not carried his Stickland/Pierce burden in relation to the underlying claim of trial

counsel's ineffectiveness, “since even if the petitioner were able to craft a perfectly

layered argument in support of his claim, the petitioner's claim would not entitle him to

relief.” Id., (citing Commonwealth v. Rush, 576 Pa. 3, 14, 838 A.2d 651, 657-58 (2003).

Thus, we need not remand if Appellant has not met his burden of proving trial counsel’s

ineffectiveness. See also Reid, ___ Pa. at ___, 99 A.3d at 483 (where the

(Lcontinued)
upon appellate counsel to raise meritorious claims, asserting instead that it is well
established that “appellate counsel may reasonably forego issues of arguable merit in
order to focus on claims he believes are more likely to succeed.” Commonwealth’s brief
at 13-14 (citing Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 765-766, 145
L.Ed.2d 756 (2000); Smith v. Murray, 477 U.S. 527, 536[, 106 S.Ct. 2661, 2667, 91
L.Ed.2d 434] (1986).

[J-1-2015] - 18
Commonwealth's waiver objection is based solely on the inadequacy of Appellant's

presentation of his claim of appellate counsel's ineffectiveness, we will address the claims

on the merits, where appropriate).

With these standards in mind, we turn to the claims raised by Appellant.

Claim 1. Counsel was ineffective for failing to develop heat of passion,
diminished capacity, and voluntary intoxication defenses to first-degree
murder; appellate counsel was ineffective; and the lower court erred in
summarily denying this claim without an evidentiary hearing.

Before reaching the merits of this claim, we first address the Commonwealth’s

assertion that a portion of it has been waived. To do so, we recognize the circuitous path

the parties have traveled to reach this Court. Although Appellant now argues that trial

counsel should have developed each of the three defenses of heat of passion, diminished

capacity, and voluntary intoxication, he did not originally request post-conviction relief on

that particular ground. Appellant’s January 25, 2002, amended PCRA petition instead

asserted as grounds for relief that:

PETITIONER IS ENTITLED TO RELIEF FROM HIS CONVICTION AND
SENTENCE BECAUSE TRIAL COUNSEL RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL AT THE GUILT STAGE OF PETITIONER’S
TRIAL BY FAILING TO PROPERLY CONSULT WITH PETITIONER
PRIOR TO TRIAL, FAILING TO PERFORM AN ADEQUATE PRE-TRIAL
INVESTIGATION, AND FAILING TO INVESTIGATE, PROCURE AND
PRESENT EVIDENCE IN SUPPORT OF THE ONLY DEFENSE
OFFERED TO THE CHARGE OF FIRST DEGREE MURDER -
VOLUNTARY INTOXICATION. AS A RESULT, PETITIONER’S RIGHTS
UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
ARTICLE 1, SECTIONS 9, 13 AND 14 OF THE PENNSYLVANIA
CONSTITUTION WERE VIOLATED.

Amended PCRA petition filed 1/25/02, Claim II at i-ii, 17 (capitalization in original).

[J-1-2015] - 19
 In pertinent part, the amended PCRA petition supported this claim with detailed

argument that, in light of trial counsel’s decision to pursue a voluntary intoxication

diminished capacity defense, counsel was ineffective in failing to obtain lay and expert

testimony to support that defense. The only mention of trial counsel’s failure to develop

a mental deficit diminished capacity defense was a bald allegation that “in addition to his

failure to present to the jury the overwhelming evidence of [Appellant’s] diminished

capacity due to his PCP use at the time of the offense, trial counsel also failed to

investigate and present to the jury the readily available evidence of [Appellant’s] mental

deficiencies,” id. at 27, and the amended PCRA petition did not assert or argue that trial

counsel was ineffective for failing to develop a heat of passion defense.

The matter was pending before Judge Jones for nearly three more years before

Appellant made any reference to trial counsel’s failure to develop a heat of passion

defense, and that reference came not in a court approved supplement to Appellant’s

PCRA petition, but in a “Response in Opposition to the Commonwealth’s Supplemental

Motion to Dismiss and Discovery Requests.” Response filed 12/23/04 at 9.18 There is

no indication that Appellant requested that the PCRA court consider this document to be

an amendment to Appellant’s PCRA petition, and there is no indication that the court

explicitly granted leave to amend.19

18 Therein, Appellant asserted that “there was available evidence that this was a crime of
passion that trial counsel failed to investigate and introduce.” “Response in Opposition
to the Commonwealth’s Supplemental Motion to Dismiss and Discovery Requests” filed
12/23/04 at 9.
19 The Rules of Criminal Procedure contemplate that amendments to pending PCRA

petitions are to be “freely allowed to achieve substantial justice,” Pa.R.Crim.P. 905(A), but
Rule 905 amendments are not “self-authorizing” such that a petitioner may simply
“amend” a pending petition with a supplemental pleading. See Commonwealth v.
(continuedL)

[J-1-2015] - 20
 By the time Appellant raised the heat of passion issue in the “Response in

Opposition to the Commonwealth’s Supplemental Motion to Dismiss and Discovery

Requests” in December, 2004, the PCRA court was embroiled in Appellant’s Atkins claim,

which was followed by argument in 2005 on the applicability of Grant, supra; a 2006 claim

by Appellant (spurred by the disclosure of the “Sagel Lecture” notes) that the

Commonwealth had violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90

L.Ed.2d 69 (1986) (determining that race-based peremptory strikes violated equal

protection); and a 2007 claim by Appellant that his conviction must be vacated because

he did not receive a pre-trial competency hearing. Although Judge Jones ruled on the

bulk of these issues,20 Appellant’s underlying request for post-conviction relief remained

outstanding in 2009, when Judge Jones moved to the Federal bench and Judge Sarmina

took his place.

Only after Judge Sarmina conducted the evidentiary hearing on Appellant’s

penalty phase mitigation claim did she turn to Appellant’s unresolved guilt phase claims.

N.T. 10/24/11-10/28/11; N.T. 6/22/12 at 22-23.21 By that time, more than ten years had

(Lcontinued)
Porter, 613 Pa. 510, 523-24, 35 A.3d 4, 12 (2012). “Rather, the Rule explicitly states that
amendment is permitted only by direction or leave of the PCRA court.” Id., 613 Pa. at
524, 35 A.3d at 12.
20 Judge Jones allowed Appellant to withdraw the Atkins claim, denied relief on the

Batson claim in 2007, and denied relief on the competency claim in 2008.
21 During an October 15, 2010 hearing before Judge Sarmina, Appellant’s counsel

indicated to the court that Judge Jones had limited the evidentiary hearing to Appellant’s
penalty phase issues. N.T. 10/15/10 at 11. At the commencement of the October 24,
2011 proceedings before Judge Sarmina, Appellant’s counsel indicated to the court that
the hearing had been limited to the question of whether trial counsel was ineffective in
failing to present adequate mental health evidence as it pertained to the mitigating factors
set forth in 42 Pa.C.S. §§ 9711(e)(2) and (e)(3). N.T. 10/24/11 at 6-7.

[J-1-2015] - 21
passed since Appellant’s Amended PCRA petition had been filed, and nearly eight years

had passed since Appellant inserted allegations regarding counsel’s failure to raise a

heat of passion defense into his “Response in Opposition to the Commonwealth’s

Supplemental Motion to Dismiss and Discovery Requests.” Further complicating

matters, when Appellant filed his “Motion for Reconsideration and Supplemental

Post-Hearing Memorandum of Law,” he couched the heat of passion issue as a “claim

that had been previously submitted but not adjudicated,” without acknowledging that

Judge Jones had never granted permission to supplement the PCRA petition to add the

claim. Motion for Reconsideration and Supplemental Post-Hearing Memorandum of

Law filed 8/28/12 at 1 (emphasis added).

On January 3, 2013, Judge Sarmina heard argument on the reconsideration of

Appellant’s penalty phase mitigation claim and additional guilt phase claims. Appellant

briefly argued trial counsel’s failure to present evidence in support of voluntary

intoxication and mental deficit diminished capacity defenses but did not address

counsel’s failure to present a heat of passion defense. The Commonwealth did not

comment on Appellant’s failure to properly raise the heat of passion claim as grounds for

post-conviction relief, neither was it addressed by Judge Sarmina, who decided at the

conclusion of the hearing that trial counsel was not ineffective. N.T. 1/3/13 at 29-30. In

so determining, Judge Sarmina first addressed trial counsel’s failure to assail Appellant’s

ability to form the specific intent to kill, noting that “the evidence as a whole did, in fact,

show that [Appellant] was capable of forming the specific intent to kill and showed very

clearly that [Appellant] acted in a deliberate manner.” Id. Additionally, Judge Sarmina

determined that trial counsel was not obligated to seek additional expert opinions after Dr.

[J-1-2015] - 22
Tepper indicated his findings would not be helpful at the guilt phase of trial. Id. at 30.22

Thus, Judge Sarmina did not separately address mental deficit diminished capacity but

generally found that the evidence demonstrated that Appellant was capable of forming

the specific intent to kill and that trial counsel had reasonably retained and relied on Dr.

Tepper, thus supporting a finding that trial counsel should not be found ineffective for

failing to develop that defense.

With regard to the presentation of a heat of passion defense, Judge Sarmina

concluded that trial counsel was not ineffective for failing to present psychiatric testimony

in support of such a defense because Appellant could not make the requisite objective

showing of sufficient legal provocation by the victim; thus, all the elements of the defense

were not present. Id. at 30-31. Judge Sarmina further noted that even if Appellant

could prove sufficient legal provocation, he failed to establish that the killing happened so

suddenly as to preclude a cooling period. Id. Judge Sarmina also acknowledged that

this Court had determined on direct appeal that there was no evidence of provocation.

22 During the penalty phase of trial, Appellant complained he believed that his “records
from the psychologist should have been brought forth before the end of this trial,” and
asserted that trial counsel rendered ineffective assistance for failing to do so. N.T.
2/17/96 at 3. Trial counsel explained in response that although he had retained Dr.
Tepper to build potential guilt phases defenses, he decided not to call Dr. Tepper to testify
during the guilt phase after “Dr. Tepper indicated that based on his examination he could
not render an opinion sufficient to assist the defendant at the guilt phase,” and further,
that “[h]e indicated to me specifically that he could not and it would probably be harmful to
the defendant if he were called to testify at that phaseL .”. N.T. 2/17/96 at 12-13. The
Commonwealth also responded to Appellant’s complaint, pointing out that the thrust of
the defense at trial was that Appellant had acted under an overwhelmingly powerful
first-time use of PCP, and that Dr. Tepper’s testimony contradicted that. Id. at 15.

[J-1-2015] - 23
Id. (citing Mason, 559 Pa. at 511, 741 A.2d at 714.23 After setting forth her reasons for

doing so on the record, Judge Sarmina denied reconsideration and dismissed Appellant’s

request for post-conviction relief in open court, indicating that the parties would receive no

additional notice of the dismissal. N.T. 1/3/13 at 32.

Following his timely appeal of Judge Sarmina’s denial of relief, Appellant filed a

Rule 1925(b) statement. Adding to the developing procedural quagmire, however,

despite arguing to Judge Sarmina in his “Motion for Reconsideration and Supplemental

Post-Hearing Memorandum of Law” that trial counsel failed to develop each of the three

discrete defenses of heat of passion, mental deficit diminished capacity and voluntary

intoxication diminished capacity, Appellant’s Rule 1925(b) statement alerted Judge

Sarmina only that Appellant intended to claim on appeal “counsel failed to L obtain and

elicit witness and expert testimony that would demonstrate petitioner was guilty of no

more than third-degree murder.” Pa.R.A.P. 1925(b) statement at 2, Matter 5. As a

result, the response contained in Judge Sarmina’s Rule 1925(a) opinion harkens back to

Appellant’s original claim that trial counsel failed to “investigate, procure and present

evidence” in support of the defense of voluntary intoxication, Amended PCRA petition at

17, and addresses the reasons trial counsel should not be found ineffective for failing to

develop that defense.

23 As noted supra, this Court determined on direct appeal that the record did not support
a heat of passion defense since Appellant claimed he was so intoxicated at the time of the
stabbing that he could not remember whether words were exchanged which would give
rise to a heat of passion defense, there was no evidence that the victim did anything
immediately before the stabbing to provoke Appellant, and the victim’s son testified that
his mother was just lying on the bed when Appellant came into the room and began
stabbing her. Mason, 559 Pa. at 511, 741 A.2d at 714.

[J-1-2015] - 24
 In doing so, Judge Sarmina initially opined that, to the extent Appellant asserts that

trial counsel erred in failing to call lay witnesses Larry Lawhorn and Brian Mason in

support of a voluntary intoxication defense,24 such an allegation was previously litigated

by this Court on direct appeal. Pa.R.A.P. 1925(a) Opinion filed 11/20/13 at 19-20 (citing

Mason, 559 Pa. at 514, n. 6, 741 A.2d at 716 n. 6. Turning to whether trial counsel was

ineffective for failing to call a mental health expert to explain the effects of PCP and opine

that the drug prevented Appellant from forming the specific intent to kill,25 Judge Sarmina

reiterates her conclusion that trial counsel was not ineffective for failing to do so because

(1) counsel acted appropriately by retaining Dr. Tepper, an experienced expert in forensic

and clinical psychology, to evaluate Appellant for purposes of building potential guilt

phase defenses; (2) counsel reasonably relied on Dr. Tepper’s indication to counsel that

based on his examination of Appellant he could not render an opinion to assist during the

guilt phase and to do so might instead be harmful to the defense; and (3) counsel was not

obligated to search for additional, different, expert opinions after receiving Dr. Tepper’s

opinion. Id. at 21-22 (citing Commonwealth v. Bracey, 568 Pa. 264, 278, 795 A.2d 935,

942-943 (2001) (“An attorney will not be deemed ineffective for choosing not to present

expert testimony in support of a particular defense if an expert, after conducting a

24 Appellant’s amended PCRA petition argued that despite trial counsel’s decision to
pursue a guilt phase voluntary intoxication defense, trial counsel’s lack of investigation
prevented trial counsel from presenting lay witnesses Lawhorn and Mason to provide
corroborating testimony that Appellant was in a drug induced state on the morning of the
murder. Amended PCRA petition filed 1/25/02 at 20-21, 23-24.
25 Appellant’s amended PCRA petition argued that trial counsel failed to present expert

testimony to explain the effects of PCP, to put Appellant’s PCP use on the day of the
offense into context, and to offer an opinion that the drug prevented Appellant from
forming the specific intent to kill. Amended PCRA petition filed 1/25/02 at 24, 26.

[J-1-2015] - 25
reasonable evaluation, informed the attorney that he could not aid the defense(s) at

issue.”).26

Additionally, as part of a discussion of Appellant’s Rule 1925(b) claim that the

PCRA Court erred by limiting the scope of the evidentiary hearing by not permitting

additional evidence to illustrate that Appellant was guilty of no more than third-degree

murder, Judge Sarmina opined that with regard to the presentation of a mental deficit

diminished capacity defense, trial counsel retained Dr. Tepper in an attempt to secure

expert testimony at the guilt phase to support any defense to murder of the first-degree,

including mental deficit diminished capacity. Dr. Tepper examined and evaluated

Appellant for such potential guilt-phase defenses, including the mental deficit diminished

capacity defense, but Dr. Tepper informed trial counsel that he could not testify in support

any guilt-phase defenses; thus, trial counsel cannot be deemed ineffective for reasonably

relying on Dr. Tepper’s learned evaluation. Id. at 22, n. 19.27

26 Judge Sarmina notes that her conclusion in this regard was not altered by Appellant’s
criticism that Dr. Tepper had not been able to properly evaluate Appellant in light of trial
counsel’s failure to provide the doctor with Appellant’s school records indicating
Appellant’s low IQ, because Judge Sarmina deemed such information irrelevant to
whether Dr. Tepper could have formed an opinion concerning the defense of voluntary
intoxication. Id. at 22, n. 18.
27 Also by way of addressing this claim, Judge Sarmina determined there was no genuine

issue of material fact necessitating a hearing on whether trial counsel was ineffective for
failing to present a heat of passion defense since, as determined by this Court on direct
appeal, Appellant failed to make the requisite objective showing of sufficient legal
provocation by the victim, thus counsel was not ineffective for failing to present psychiatric
testimony to support a heat of passion defense where all elements of the defense were
not present. Rule 1925(a) Opinion at 22, n. 19 (citing Commonwealth v. Watson, 523
Pa. 51, 565 A.2d 137 (1989); Commonwealth v. Sheppard, 648 A.2d 563, 566 (Pa.
Super. 1994)).

[J-1-2015] - 26
 Veering from the language of his Rule 1925(b) statement back to the more specific

language of his “Motion for Reconsideration and Supplemental Post-Hearing

Memorandum of Law,” Appellant currently asserts to this Court that trial counsel was

ineffective for failing to develop the defenses of heat of passion, mental deficit and

voluntary intoxication diminished capacity. Appellant’s brief at 10. 28 The

Commonwealth asks that we find waived the portion of this claim pertaining to the heat of

passion defense because it was not raised in Appellant’s amended PCRA petition and

Appellant failed to obtain leave of court to supplement the petition to include it. 29

Commonwealth’s brief at 25 (citing Reid, ___ Pa. at ___, 99 A.3d at 484; Baumhammers,

625 Pa. at 390, 92 A.3d at 730-731; Commonwealth v. Elliott, 622 Pa. 236, 261, 80 A.3d

415, 430 (2013).30 Appellant does not specifically disagree with the Commonwealth’s

28 While Appellant’s Rule 1925(b) claim is more general than the issue he currently raises
before this Court, the more specific claim contained in his brief may be viewed as
subsidiary to the general Rule 1925(b) allegation of error if it were raised before the PCRA
court. See Pa.R.A.P. 1925(b)(4)(v) (“Each error identified in the Statement will be
deemed to include every subsidiary issue contained therein which was raised in the trial
court.”).
29 Pursuant to the Pennsylvania Rules of Criminal Procedure, “[e]ach ground relied upon

in support of the relief requested shall be stated in the petition. Failure to state such a
ground in the petition shall preclude the defendant from raising that ground in any
proceeding for post-conviction collateral relief.” Pa.R.Crim.P. 902(B). As we noted
above, amendments to pending PCRA petitions are to be “freely allowed to achieve
substantial justice,” Pa.R.Crim.P. 905(A), but such amendments are not “self-authorizing”
with the simple filing of a “supplemental” pleading. See Porter, 613 Pa. at 523-24, 35
A.3d at 12. Instead, amendment is permitted only by direction or leave of the PCRA
court.” Id., 613 Pa. at 524, 35 A.3d at 12.
30 In Reid, a PCRA petitioner sentenced to death for first-degree murder filed a series of

supplemental PCRA petitions without seeking or receiving permission to do so, prompting
the Commonwealth to urge this Court to find the issues contained therein waived. Reid,
___ Pa. ___, 99 A.3d at 483. The PCRA court’s Rule 1925(a) opinion, however,
addressed the issues, in light of “the Court's inclination to liberality in these proceedings.”
(continuedL)

[J-1-2015] - 27
(Lcontinued)
Id., ___ Pa. ___, 99 A.3d at 483. This Court nonetheless found waived those claim that
were raised for the first time in apparently unauthorized supplemental petitions, noting
that:
Notwithstanding the PCRA court's indulgence in addressing all of
Appellant's claims, we agree that it was incumbent upon Appellant to
identify where in the record the supplemental petitions were authorized
and/or to reconstruct the record if such authorization was provided off the
record. Appellant has not done so. This Court has condemned the
unauthorized filing of supplements and amendments to PCRA petitions,
and held that claims raised in such supplements are subject to waiver.
See [ ]Elliott, 622 Pa. [at] 261, 80 A.3d [at] 430 [ ]; Roney, ___ Pa. [at] ___,
79 A.3d [at] 615–16 [ ]; [ ]Porter, 613 Pa. [at ___], 35 A.3d [at] 12 (2012).
Id., ___ Pa. ___, 99 A.3d at 484.
In Baumhammers, a PCRA petitioner sentenced to death for first-degree murder
raised in his brief to this Court a claim that did not appear among the claims raised in his
PCRA petition, prompting the Commonwealth to urge a finding of waiver.
Baumhammers, 625 Pa. at 389, 92 A.3d at 729. The petitioner reasoned that the claim
was nonetheless preserved because it was “related to the previous claim” and was
discussed in a pleading responsive to the Commonwealth's answer to the PCRA petition.
Id. Addressing the situation, this Court explained:
Our criminal procedural rules reflect that the PCRA judge “may grant
leave to amend ... a petition for post-conviction collateral relief at any time,”
and that amendment “shall be freely allowed to achieve substantial justice.”
Pa.R.Crim.P. 905(A); see Commonwealth v. Williams, 573 Pa. 613, 633,
828 A.2d 981, 993 (2003) (noting that the criminal procedural rules
contemplate a “liberal amendment” policy for PCRA petitions).
Nevertheless, it is clear from the rule's text that leave to amend must be
sought and obtained, and hence, amendments are not “self-authorizing.” [
] Porter, 613 Pa. [at] 523, 35 A.3d [at] 12 [ ]. Thus, for example, a petitioner
may not “simply ‘amend’ a pending petition with a supplemental pleading.”
Id. Rather, Rule 905 “explicitly states that amendment is permitted only by
direction or leave of the PCRA Court.” Id. at 523–24, 35 A.3d at 12; see
also Williams, 573 Pa. at 625, 828 A.2d at 988 (indicating that the PCRA
court retains discretion whether or not to grant a motion to amend a
post-conviction petition). It follows that petitioners may not automatically
“amend” their PCRA petitions via responsive pleadings.
Id., 625 Pa. at 391, 92 A.3d at 730. Noting that the petitioner did not seek leave to
amend his PCRA petition to include the claim; the claim could not be construed as
subsumed within the prior claim; the PCRA court did not treat Appellant's responsive
pleading as a request for leave to amend; the record contained no discussion of such a
(continuedL)

[J-1-2015] - 28
accusation that he did not obtain leave of court to amend his PCRA petition to include the

heat of passion issue. Instead, addressing this issue as part of a larger challenge to the

various “deficiencies” raised by the Commonwealth,31 Appellant asserts that the PCRA

court’s failure to give notice of its intention to dismiss as required by Pennsylvania Rule of

Criminal Procedure 909 denied him the opportunity to respond to the dismissal and

(Lcontinued)
request; and the court did not address the new substantive contention in its opinion
disposing of Appellant's PCRA claims, we found the claim waived, and further recognized
that “waiver cannot be avoided solely by reference to Appellant's Concise Statement of
Matters Complained of on Appeal, as such a statement, which is provided after the notice
of appeal has already been filed, cannot operate to add new substantive claims that were
not included in the PCRA petition itself.” Id., 625 Pa. at 391-392, 92 A.3d at 731
In Elliott, a PCRA petitioner sentenced to death for first-degree murder raised in a
supplemental brief to the PCRA court a claim that trial counsel was ineffective for failing to
meet with him personally prior to trial or otherwise prepare for trial. This court found the
claim waived, explaining:
Because Elliott did not include in his PCRA petition the claim alleging trial
counsel's ineffectiveness for failing to meet with him prior to trial, and did not
obtain permission to amend his petition to include the same, the issue is
waived. See Commonwealth v. Porter, 613 Pa. 510, 35 A.3d 4, 14 (2012)
(holding that a PCRA petitioner may not raise new claims by merely
supplementing a pending PCRA petition without court authorization
because to do so would “wrongly subvert the time limitation and serial
petition restrictions of the PCRA”); Pa.R.Crim.P. 902(B) (providing that the
“[f]ailure to state such a ground [for relief] in the [PCRA] petition shall
preclude the defendant from raising that ground in any proceeding for
post-conviction collateral relief”).
Elliott, 622 Pa. at 261, 80 A.3d at 430.
31 Appellant specifically references the Commonwealth’s allegations that counsel

neglected to substitute a certification or affidavit for appellate counsel after the original
certification was withdrawn; that Dr. Mash’s report was never filed; and that claims raised
in supplements were waived for lack of affirmative permission from the lower court.
Appellant’s Reply brief filed 2/2/15 at 9 (citing Commonwealth’s brief at 14, 21, 25, 30-31,
36, 63-64, 82).

[J-1-2015] - 29
remedy the deficiencies, requiring us to remand the matter.32 Appellant’s reply brief at

7-10.

Appellant’s argument is misplaced. He did not receive notice of dismissal for

failure to properly amend (and the accompanying opportunity to, presumably, seek to

cure the deficiency by properly amending) because that was not the ground upon which

Judge Sarmina dismissed the issue. Instead, because of the procedural irregularities of

this case, caused in part by Appellant’s own counsel’s indication to the court that the heat

of passion issue had been properly pleaded and was awaiting determination, Judge

Sarmina did not recognize that the issue had not been properly pleaded. As such, she

allowed both written and oral argument on it and addressed it on its merits, see N.T.

1/3/13 at 25-30, before determining that trial counsel was not ineffective for failing to

pursue a heat of passion defense because it could not be proven in the absence of the

necessary element of provocation. Although the Commonwealth is correct that

Appellant never received permission to amend his request for relief to include the heat of

passion claim, the Commonwealth is partially responsible for Judge Sarmina’s failure to

recognize that fact, as the prosecutor not only failed to contradict Appellant’s counsel’s

misstatements to the court, but also argued the issue at the January 3, 2013 hearing as if

it had been properly pled. Id. at 25.

Nevertheless, it is well-settled that claims raised outside of a court-authorized

PCRA petition are subject to waiver regardless of whether the Commonwealth raises a

32 Rule 909 requires the PCRA court to provide a capital petitioner with notice of the
court's intent to dismiss, and further obliges the PCRA court to “state in the notice the
reasons for the dismissal.” Pa.R.Crim.P. 909(B)(2)(a). Once notice is given, the
petitioner has 20 days in which to respond to attempt to cure the perceived deficiencies.
Pa.R.Crim.P. 909(B)(2)(b).

[J-1-2015] - 30
timely and specific objection to them at the time they are raised. Reid, ___ Pa. at ___, 99

A.3d at 484. While the Commonwealth in Reid urged this Court to find waiver in that

case, we did not hold that waiver was conditional upon the Commonwealth first objecting

to unauthorized claims. Instead, our decision depended only upon whether the

petitioner had sought and received permission to amend his claims through a

supplemental petition. Finding that the petitioner in Reid had not sought the court’s

permission, we found his claims to be waived.

The petitioner bears the onus of informing the PCRA court that he or she seeks to

add claims through an amended petition, and, in response, the court shall freely grant

leave to amend where doing so achieves substantial justice consistent with the dictates of

Pa.R.C.P. 905(A). As described above, Appellant failed properly to seek the PCRA

court’s permission to amend his PCRA petition to include, for the first time, a layered

ineffectiveness claim founded on the theory that trial counsel should have presented a

diminished capacity “heat of passion” defense at trial. Judge Sarmina entertained the

newly-raised theory on its merits during the evidentiary hearing not as part of a policy to

authorize and address all new claims at that time--she had, in fact, adopted no such

policy33--but in apparent reliance upon the parties’ taking up argument of the claim as if it

had been properly pleaded at some point before Judge Jones. We, therefore, find that

33 At the outset of the January 3, 2013, PCRA hearing, Judge Sarmina clearly stated its
purpose: “We [are] here for reconsideration as well as for any additional claims that
might not have been addressed by Judge Jones but which you thought should be
addressed.” Id. at 2. As Judge Jones could have neither “addressed” nor “failed to
address” a “claim” that was never raised before him in the first place, Justice Sarmina’s
statement must be understood as contemplating only those claims already raised before
the PCRA court.

[J-1-2015] - 31
Appellant has waived the heat of passion claim for failure to raise it in an authorized

amended PCRA petition.

Even if, under the particular circumstances of this case, we were willing to view

Judge Sarmina’s opening statement at the January 3, 2013, evidentiary hearing as

implicitly authorizing all new claims, including Appellant’s heat of passion claim, so as to

preclude the application of waiver doctrine herein, we would still find no error with Judge

Sarmina’s determination that trial counsel did not render ineffective assistance for failing

to present lay and expert testimony in support of a “heat of passion” defense. We

engage in merits review of this ineffective assistance claim first.

Applying the standard governing ineffectiveness claims under the PCRA, we begin

by reviewing Appellant’s assertion that this underlying claim is of arguable merit because

there was evidence that Appellant acted out of heat of passion, and the presentation of

such evidence, coupled with expert testimony, would have raised a reasonable doubt as

to first-degree murder. Appellant’s brief at 14. A heat of passion defense is a partial

defense that addresses the element of intent and, if successfully argued, mitigates

first-degree murder to third-degree murder. See Hutchinson, 611 Pa. at __, 25 A.3d at

314. It seeks to show that the defendant is guilty of voluntary manslaughter, not murder,

by proving that at the time of the killing he or she was acting under a sudden and intense

passion resulting from serious provocation by the victim. See 18 Pa.C.S. § 2503(a) (“[a]

person who kills an individual without lawful justification commits voluntary manslaughter

if at the time of the killing he is acting under a sudden and intense passion resulting from

serious provocation by L the individual killed.”).

[J-1-2015] - 32
 In order to successfully argue heat of passion, a defendant must prove (1)

provocation on the part of the victim, (2) that a reasonable man who was confronted with

the provoking events would become ‘impassioned to the extent that his mind was

incapable of cool reflection,” and (3) that the defendant did not have sufficient cooling off

time between the provocation and the killing. See Commonwealth v. Busanet, 618 Pa.

1, 34-35, 54 A.3d 35, 55 (2012) (holding no evidence of provocation where the victim's

threats against Appellant were made weeks prior to the shooting, thereby affording

Appellant sufficient time to engage in cool reflection); Martin, 607 Pa. at 186, 5 A.3d at

189 (“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.”);

Commonwealth v. Williams, 602 Pa. 360, 391 n. 30, 980 A.2d 510, 529 n. 30 (2009) (a

violent confrontation occurring two days before the murder would not serve to reduce the

degree of guilt to manslaughter, since killings do not occur under the heat of passion

where there was sufficient time for cooling between whatever provocation might have

existed and the actual killings). Further, “[i]f any element is missing, the provocation

defense fails.” Martin, supra. See also Commonwealth v. Sanchez, 623 Pa. 253, 314,

82 A.3d 943, 980 (2013) (“If any of these be wanting—if there be provocation without

passion, or passion without a sufficient cause of provocation, or there be time to cool, and

reason has resumed its sway, the killing will be murder.”).

Here, in declaring that there was arguable merit to a heat of passion defense,

Appellant posits that the required provocation came in the form of the cumulative effect of

[J-1-2015] - 33
his “stormy relationship” with the victim and her revelations of infidelity. Appellant’s brief

at 14-15. Appellant asserts that such revelations are shown through (1) the declaration

of Appellant’s Uncle, Larry Lawhorn, that Appellant told Lawhorn that the victim boasted

to Appellant of her infidelity while they were dating; and (2) Appellant’s statement to Dr.

Robert Sadoff that the victim told Appellant about her sexual exploits with other men

during her relationship with Appellant. Id. at 15 (citing Declaration of Larry Lawhorn; N.T.

10/24/11, 31-32, Declaration of Dr. Robert Sadoff). Appellant does not specifically

assert that, at the time of the killing, the victim’s provocation caused him to act, nor does

he address the implications of a cooling off period.

In response, the Commonwealth disputes the arguable merit to the pursuit of a

heat of passion defense, reflecting that Appellant made no claim the victim did anything

immediately prior to the killing to provoke him, let alone that such hypothetical

provocation incited Appellant to a sudden and intense passion, and noting that instead,

Appellant testified that he had no recollection of the killing or his state of mind when

committing it. Commonwealth’s brief at 26. In so arguing, the Commonwealth assails

as inadmissible hearsay Appellant’s Uncle’s rendition of what Appellant allegedly told him

the victim allegedly told Appellant, and further posits that regardless, revelations of

infidelity are not sufficient provocation to support a heat of passion defense. Id. at 27

(citing Commonwealth v. Miller, 605 Pa. 1, 20-21, 987 A.2d 638, 649-51 (2009)

(allegations of victim's past infidelities and flirtatiousness insufficient provocation);

Watson, 523 Pa. at 61, 565 A.2d at 137 (awareness that victim, appellant's former

long-time girlfriend, had a new boyfriend was not sufficient legal provocation)). The

Commonwealth additionally asserts that expert testimony regarding Appellant’s state of

[J-1-2015] - 34
mind would have become relevant only had Appellant been able to show sufficient legal

provocation, which he could not, and further, that trial counsel cannot be faulted for failing

to investigate Appellant’s recollections of the circumstances of the crime, because

Appellant told trial counsel that he had no such recollections. Id. at 28.

We find Appellant has failed to show there was arguable merit to a heat of passion

defense, and has not presented a basis upon which trial counsel may be found to have

acted unreasonably. To the extent that Appellant suggests a heat of passion defense

may be based purely on provoking actions or statements that are not contemporaneous

to the resulting “sudden and intense passion,” Appellant is clearly mistaken, as the

passage of time between provocation and the “passion” must be viewed as a cooling

period, and killings will not be deemed to have occurred under the heat of passion where

there was sufficient time for cooling between whatever provocation might have existed

and the actual killings. See Williams, supra.34

To the extent Appellant’s argument may be construed as suggesting there was a

provoking event and/or statement immediately prior to the killing, such a suggestion is

specious in light of Appellant’s own testimony that he does not recall his actions from the

night before the murder until after it was committed, much less remember what provoked

34 With regard to Appellant’s reliance on Commonwealth v. McCusker, 448 Pa. 382, 292
A.2d 286 (1972) for the proposition that “in making the objective determination as to what
constitutes sufficient provocation, reliance may be placed upon the cumulative impact of
a series of related events,” Appellant’s brief at 14 (emphasis omitted) (citing McCusker,
448 Pa. at 389, 292 A.2d at 290), Appellant neglects to mention that the series of related
events in that case involved a prior revelation of infidelity coupled with two other
provoking statements made immediately prior to the killing. McCusker, 448 Pa. at 389,
292 A.2d at 289-290.

[J-1-2015] - 35
those actions,35 and the testimony of the victim’s son that she did nothing prior to the

attack and was merely lying on the bed. Further, revelations of infidelity have been

deemed insufficient to constitute provocation for purposes of a heat of passion defense.

See Miller, 605 Pa. at 22, 987 A.2d at 651 (“In numerous cases, evidence showing a

history of minor disputes and allegations of past infidelity has been held not to be

sufficiently provocative to reduce murder to manslaughter.”); Commonwealth v. Dick, 602

Pa. 180, 187, 978 A.2d 956, 960 (2009) (A tumultuous relationship between appellant

and his wife and their argument sometime prior to the incident was “clearly insufficient” to

establish “heat of passion,” and appellant did not prove arguable merit to the pursuit of a

heat of passion defense).

For these reasons Appellant has failed to prove arguable merit to the pursuit of a

heat of passion defense. Even if we were to presume such a defense has arguable

merit, Appellant must also show that trial counsel’s course of action lacked a reasonable

basis, and he simply has not done so based on the omissions alleged. Appellant faults

trial counsel for failing to develop accounts of Appellant’s “long-term, intense and

contentious” relationship with the victim, and specifically argues that counsel should have

obtained and presented letters from the victim to Appellant expressing her love for him.

35 Appellant’s citation to Dr. Sadoff’s findings do not alter our opinion in this regard.
Although, upon initial review, Dr. Sadoff’s opinion could be read to suggest that the victim
said something to Appellant immediately prior to the murder to provoke him, since Dr.
Sadoff’s opinion was based in part on “Appellant’s recitation of the facts,” and since
Appellant testified that he did not remember anything from the night before the murder
until after it was committed, Appellant’s recitation of the facts obviously could not include
anything that happened during that time frame, including anything that may or may not
have been said by the victim immediately before the crime, and thus Dr. Sadoff’s findings
cannot be viewed as suggesting that such a statement was made.

[J-1-2015] - 36
Appellant’s brief at 16-17. It is unclear how such letters would be of any benefit to

proving that the victim provoked Appellant prior to the attack, causing him to act out of

sudden and intense passion. Also, because Appellant testified that he did not recall the

events of the killing, he could point to no evidence supporting his claim that he acted in the

heat of passion. Further, there was no evidence of provocation on the part of the victim

immediately prior to the attack, and the letters Appellant faults trial counsel for failing to

obtain do not provide such evidence. As such, it was not unreasonable for counsel to

forgo attempting to persuade the jury that Appellant acted in the heat of passion.

We turn now to Appellant's claim that trial counsel was ineffective for failing to

develop a diminished capacity defense, and we conclude that Appellant has failed to

show trial counsel rendered ineffective assistance with regard to the presentation of such

a defense. A diminished capacity defense is focused on negating the element of specific

intent to kill and may be grounded in mental defect or voluntary intoxication. See

Hutchinson, 611 Pa. at ___, 25 A.3d at 312; Commonwealth v. Spotz, 616 Pa. 164, 210,

47 A.3d 63, 90 (2012). “To establish a diminished capacity defense, a defendant must

prove that his cognitive abilities of deliberation and premeditation were so compromised,

by mental defect or voluntary intoxication, that he was unable to formulate the specific

intent to kill.” Spotz, 616 Pa. at 211, 47 A.3d at 90-91. A diminished capacity based on

voluntary intoxication cannot be made out by mere evidence of intoxication, but rather

requires evidence that demonstrates the defendant was intoxicated to such an extent he

was unable to form the requisite intent. Commonwealth v. Spotz, 587 Pa. 1, 47, 896

A.2d 1191, 1218 (2006). “For a defendant who proves a diminished capacity defense,

first-degree murder is mitigated to third-degree murder.” Hutchinson, supra (citing

[J-1-2015] - 37
Commonwealth v. Saranchak, 581 Pa. 490, 866 A.2d 292, 299 (2005)). The factual

circumstances under which a voluntary intoxication diminished capacity defense could be

mounted are obviously different than those which would warrant a mental deficit

diminished capacity defense. Nonetheless, Appellant addresses the defenses together

for purposes of establishing that he has met the three Strickland/Pierce factors and

showing that trial counsel rendered ineffective assistance.

Appellant initially asserts there exists arguable merit to the claim that trial counsel

should have investigated and presented evidence to support a diminished capacity

defense by involuntary intoxication or mental deficit. With respect to involuntary

intoxication, Appellant argues, counsel knew Appellant was low-functioning mentally and

struggled with substance abuse since his teen years. Appellant’s brief at 11. This

profile, when coupled with testimony offered by family members who viewed Appellant to

appear “highly intoxicated” and “paranoid” on the evening in question, should have

prompted counsel to investigate further into Appellant’s medical and corrections history,

which, Appellant asserts, would have provided additional evidence of his violent reactions

to heavy drug use. Appellant concludes reasonable counsel in trial counsel’s position

would have then consulted an expert as to the intoxicating effects of marijuana and PCP

on Appellant’s mental state.

Contrary to Appellant’s position, however, it is clear that trial counsel did undertake

such a defense by presenting extensive testimony from Appellant, his mother, and his

brother, Kevin, regarding Appellant’s highly intoxicated state before the murder (fueled in

part by his first-time use of PCP to the point where he blacked out completely and

appeared to be hallucinating), and Appellant’s dazed and unusual appearance after the

[J-1-2015] - 38
crime occurred. Moreover, he pursued the expert neuropsychological opinion of Doctor

Tepper as to the likely effects of intoxication on Appellant, but he reasonably opted

against using the unfavorable opinion Dr. Tepper offered. Therefore, though the record

supports the position that there was arguable merit to investigating and presenting a

diminished capacity-involuntary intoxication defense, it also shows that trial counsel did,

in fact, investigate and present the claim. Whether trial counsel took a reasonable tack

with respect to advancing this defense implicates the reasonable basis prong of this

ineffectiveness claim, which we take up infra.

As for the arguable merit to Appellant’s assertion that trial counsel should have

pursued a diminished capacity-mental deficit defense, Appellant fails to establish that the

record would have supported such a defense. Although the diminished capacity

doctrine is well-recognized as a permissible defense to first-degree murder in the

appropriate situation, this Court has recognized that the defense is an extremely limited

one. See Commonwealth v. Taylor, 583 Pa. 170, 187, 876 A.2d 916, 926 (2005) (citing

Commonwealth v. Travaglia, 541 Pa. 108, 123, n. 10, 661 A.2d 352, 359 n. 10 (1995)).

Because the defense is directed exclusively at the negation of specific intent, for evidence

to be admissible it must necessarily put into question the criminal defendant's very ability

to form the intent to kill. Id. Thus, “[e]vidence that the defendant lacked the ability to

control his or her actions or acted impulsively is irrelevant to specific intent to kill, and thus

is not admissible to support a diminished capacity defense. Furthermore, diagnosis with

a personality disorder does not suffice to establish diminished capacity.” Hutchinson,

611 Pa. at ___, 25 A.3d at 312 (citations and footnote omitted). Additionally, the

evidence must provide insight as to the defendant’s mental state at the time of the

[J-1-2015] - 39
offense, “the only relevant time for a diminished capacity defense.” Commonwealth v.

Spotz, 610 Pa. 17, 144, 18 A.3d 244, 319 (2011) (citing Commonwealth v. Rainey, 593

Pa. 67, 928 A.2d 215, 237 (2007) (requiring a defendant advancing a defense of

diminished capacity based on mental defect to “establish [that he or she] had a mental

defect at the time of [the] murder that affected his [or her] cognitive abilities of deliberation

and premeditation necessary to formulate specific intent to kill.”)).

Here, the only basis upon which Appellant suggests counsel was obligated to

pursue a mental deficit diminished capacity defense was trial counsel’s knowledge that

Appellant was “low functioning,” his IQ was “barely above the [intellectually disabled]

level,” he had “learning difficulties” as a child and, according to Appellant’s uncle, suffered

from a “nervous condition.” Appellant’s brief at 11-12. Even if true, these contentions

do not suggest Appellant’s cognitive abilities of deliberation and premeditation were so

compromised by mental defect that he was unable to formulate the specific intent to kill,

much less that he suffered from such mental deficit at the time of the stabbing. Further,

any support the evidence of Appellant’s low IQ and learning disabilities may have

provided for a mental deficit diminished capacity defense was countered by the evidence

that, at the time of the attack, Appellant appeared to be fully capable of deliberate and

reasoned thought, as exhibited by Appellant’s lucid attempt to negotiate access to the

victim’s house and his sober demeanor after turning himself in to police. Further, the

arguable merit to a mental deficit diminished capacity defense was not suggested to

counsel by his expert, as Dr. Tepper, with knowledge that Appellant suffered such

diminished IQ and learning difficulties, was nevertheless of the opinion that Appellant was

[J-1-2015] - 40
indeed able to form a specific intent to kill.36 We conclude, therefore, that Appellant has

failed to show there would have been arguable merit to the pursuit of a diminished

capacity-mental deficit defense. Commonwealth v. Philistin, 617 Pa. 358, 379, 53 A.3d

1, 12 (2012) (“[A]s appellant failed to show he lacked the ability to form a specific intent to

kill, a diminished capacity defense was inapplicable, and trial counsel was not ineffective

for failing to present such defense.”).

Even assuming there would have been arguable merit to pursuing both a voluntary

intoxication and a mental deficit diminished capacity defense, we nonetheless find

Appellant has failed to show that trial counsel’s course of action lacks a reasonable basis,

thus Appellant has not met the second prong of the Strickland/Pierce test. With regard to

trial counsel’s alleged failure to appropriately pursue these defenses, Appellant accuses

trial counsel of failing to seek additional records, failing to interview additional family

members to learn more about how Appellant reacted when on drugs, and failing to

consult with an expert and provide the expert with such records and testimony.

Appellant’s brief at 12-13.

36 Dr. Tepper testified he met with Appellant on two occasions, for a total of four to five
hours, during which time Dr. Tepper collected background information from Appellant and
performed intellectual and personality tests on him. N.T. 2/16/96 at 72-73. The tests
revealed a verbal scale IQ of 71, and a non-verbal scale IQ of 73. Dr. Tepper also
reviewed police reports, school records, and drug and alcohol treatment records, and
interviewed Appellant’s mother. Id. at 73. Appellant and his mother reported to Dr.
Tepper that Appellant suffered learning difficulties, behavioral problems, which were
confirmed by the records Dr. Tepper reviewed. Id. at 75-76. Dr. Tepper testified at the
PCRA hearing that in light of Appellant’s actions near the time of the crime, Dr. Tepper
could not opine that Appellant was unable to form the specific intent to kill, but instead he
believed Appellant was “able to form certain intents, whether it's killing or getting to
locations.” N.T. 10/25/11 at 190-91.

[J-1-2015] - 41
 Appellant specifically faults trial counsel for failing to obtain records from the Albert

Einstein Medical Center showing that Appellant overdosed on drugs as a teenager, and

Philadelphia Prison System records confirming Appellant’s heavy drug use and revealing

“possible suicide attempts” and head trauma. Id. at 12. The Commonwealth counters

that trial counsel reasonably pursued a voluntary intoxication defense by presenting

testimony that Appellant used PCP for the first time the night before the stabbing, that

during the early morning hours before the stabbing Appellant was mumbling and

hallucinating (behavior which was markedly different from how he normally reacted when

high), and that after the stabbing Appellant was extremely disoriented and remembered

nothing of the previous hours’ events. Commonwealth’s brief at 16-17 (citing N.T.

2/12/96 at 155-167; 2/13/96 at 25-26, 30-36). The Commonwealth asserts that trial

counsel properly relied on Appellant and his family to provide accurate background

information, and, to the extent that they did not supply information about purported

“suicide attempts” and “head trauma,” counsel cannot be found incompetent for failing to

uncover such information. Id. at 20. Further, the Commonwealth points, out, Appellant

himself specifically denied being suicidal. Id. at 20 n.4 (citing N.T. 10/24/11, 58; 6/22/12,

17-18.

Appellant also faults trial counsel for failing to present the testimony of his brother

Brian that Appellant had a longstanding drug problem and appeared high before the

stabbing. He specifically asserts that Brian would have testified Appellant was a drug

addict from the time he was a teenager, that Appellant hallucinated when he was high,

and that Appellant looked high on the night of the murder. Appellant’s brief at 13 (citing

N.T. 10/26/11, 190; Declaration of Brian Mason [Appendix to Amended PCRA petition,

[J-1-2015] - 42
tab 4]). The Commonwealth counters that because only Appellant’s mother and uncle

cooperated with trial counsel, and counsel was never informed that Brian Mason had any

information that would have supported the defense, counsel cannot be deemed to have

acted unreasonably in failing to call Brian Mason to testify. Commonwealth’s brief at 19

(citing N.T. 10/25/11 at 18; N.T. 10/26/11 at 202). The Commonwealth further asserts

that Brian Mason’s testimony would have been cumulative. Id. at 20.

Appellant lastly posits that “[p]rofessionally reasonable counsel who was in

possession of this evidence would have consulted an expert with respect to diminished

capacity/voluntary intoxication and provided the relevant information to the expert.”

Appellant’s brief at 13. Appellant observes that his current counsel was able to obtain an

opinion from Dr. Barbara Mash, an expert in neuropharmacology, that the intoxicating

effects of marijuana and PCP, combined with Appellant’s underlying organic brain

syndrome and history of cocaine dependence, prevented Appellant from forming a

specific intent to kill. Id. at 13-14 (citing Declaration of Dr. Barbara Mash attached as

“Exhibit C” to Appellant’s brief).

To the extent that the Commonwealth construes Appellant as faulting trial counsel

for failing to call Dr. Mash as an expert witness, the Commonwealth insists such a claim

has been waived by Appellant’s failure to include it in a PCRA petition. Commonwealth’s

brief at 21 (citing Reid, ___ Pa. at ___, 99 A.3d at 484; Baumhammers, 625 Pa. at 390, 92

A.3d at 729-730; Elliott, 622 Pa. at 261, 80 A.3d at 430). Regardless, the

Commonwealth posits, trial counsel cannot be deemed ineffective on this basis because

counsel did, in fact, consult an expert, Dr. Tepper, who evaluated Appellant’s history of

drug and alcohol abuse, including his use of PCP, and the impact such abuse might have

[J-1-2015] - 43
had on Appellant’s ability to control his behavior. Commonwealth’s brief at 17 (citing

N.T. 2/16/96 at, 76-80, 83-84).37 The Commonwealth emphasizes that trial counsel was

nonetheless unable to offer Dr. Tepper as a guilt phase witness because Dr. Tepper told

trial counsel that "he could not render an opinion sufficient to assist ... defendant at the

guilt phase" and "it would probably be harmful to ... defendant if he were called to testify at

that phase." Id. at 17 (citing N.T. 2/17/96, 12-13); 22-23 (citing N.T. 10/25/11, 50).38

The Commonwealth further notes Dr. Tepper himself testified, in a manner completely

incompatible with a diminished capacity defense, that Appellant’s actions near the time of

the crime revealed that he was able to form an intent to kill. Id. at 23 (citing N.T.

10/25/11, 190-191). 39 The Commonwealth observes Appellant cites to nothing to

indicate that Dr. Tepper’s opinion in this regard would have changed had he reviewed any

of the additional information Appellant faults counsel for failing to provide. Id.40 Thus,

the Commonwealth asserts, trial counsel appropriately relied upon Dr. Tepper’s opinion

37 Appellant discussed his longstanding drug and alcohol abuse with Dr. Tepper,
including Appellant’s consumption of alcohol and his use of marijuana, cocaine and PCP.
N.T. 2/16/96 at 82-84.
38 As noted above, during the penalty phase of trial, counsel explained that Dr. Tepper

had indicated he could not provide helpful guilt phase testimony. Counsel then
reiterated this during the PCRA hearing, when he testified that Dr. Tepper told him that he
could not help during the guilt phase of trial. N.T. 2/17/96 at 12-13); N.T. 10/25/11 at 50.
39 Dr. Tepper testified at the PCRA hearing that in light of Appellant’s actions near the

time of the crime, Dr. Tepper could not opine that Appellant was unable to form the
specific intent to kill and instead agreed that Appellant was “able to form certain intents,
whether it's killing or getting to locations.” N.T. 10/25/11 at 190-91.
40 In response to Appellant’s suggestion that it was unreasonable for the PCRA court to

credit trial counsel’s explanation for why Dr. Tepper was not called to testify at the guilt
phase, as it was not made in an adversarial proceeding, Appellant’s brief at 21, the
Commonwealth counters that Appellant does not challenge the accuracy of trial counsel’s
explanation and cites to trial counsel’s testimony at the PCRA hearing confirming the
statement made during the penalty phase. Commonwealth’s brief at 23 (citing N.T.
10/25/11 at 50, 190-191).

[J-1-2015] - 44
and was not obligated to seek out additional experts in the hope that they would provide a

more favorable opinion. Id. at 22 (citing Bracey, supra; Commonwealth v. Lewis, 560

Pa. 240, 244, 743 A.2d 907, 909 (2000)).

We conclude that because the information contained in the additional records cited

by Appellant would have been merely cumulative of the evidence of Appellant’s lifelong

struggle with drugs, presented at trial through his own testimony and that of his mother

and brother, Kevin, Appellant has failed to show that trial counsel’s failure to obtain the

additional records was unreasonable. See Hanible, 612 Pa. at 221, 30 A.3d at 449 (Trial

counsel cannot be deemed ineffective for failing to present additional evidence

cumulative of that already presented). Similarly, the proposed testimony from Brian

Mason would have been cumulative of the evidence already presented. Additionally, to

prevail on a claim that trial counsel was ineffective for failing to present a witness, the

defendant must demonstrate (in addition to the existence of the witness and counsel’s

awareness of that witness) that the witness was willing and able to cooperate on behalf of

the defendant; and that the proposed testimony was necessary to avoid prejudice to the

defendant. Commonwealth v. Tharp, ___ Pa. ___, 101 A.3d 736, 757-58 (2014) Here,

Brian Mason never told trial counsel that he observed Appellant on the morning before

the crime, and counsel testified that only Appellant’s mother and uncle cooperated with

counsel’s investigation. N.T. 10/25/11 at 18, 38; N.T. 10/26/11 at 202. Further, Brian’s

statements as to Appellant’s history of drug addiction and his condition prior to the crime

would only have served to corroborate the testimony already presented, and cannot be

deemed necessary to avoid prejudice to Appellant.

[J-1-2015] - 45
 Neither do we find that Appellant has proven that trial counsel acted unreasonably

in retaining Dr. Tepper, but declining to call him as a guilt-phase witness in support of a

diminished capacity defense, in light of Dr. Tepper’s conclusion that Appellant was,

indeed, capable of forming the intent to kill. See Commonwealth v. Whitney, 550 Pa.

618, 632-33, 708 A.2d 471, 478 (1998) (trial counsel reasonably decided not to elicit guilt

phase testimony from the expert he had retained to evaluate the defendant, because the

expert determined that the defendant failed to meet the criteria for diminished capacity

and would have weakened that defense).

Appellant also asserts that he suffered prejudice as the result of trial counsel’s

course of action in this regard, alleging that had trial counsel conducted a reasonable

investigation and provided the results to an appropriate expert, that expert could have

testified that Appellant’s “underlying cognitive impairments and cocaine dependence,

together with his intoxicated state at the time of the offense” rendered Appellant incapable

of forming specific intent to kill, prompting the jury to acquit Appellant of first-degree

murder. Appellant’s brief at 18-19. The Commonwealth disagrees, arguing that

additional evidence attempting to prove that Appellant’s purported mental deficit and

intoxication prevented him from forming the specific intent to kill would not overcome in

the minds of the jury the evidence introduced as to Appellant’s actual demeanor before,

during and after the stabbing, which showed that he did, in fact, commit the crime in a

deliberate and purposeful manner. Commonwealth’s brief at 24.

In light of our conclusion that there was no arguable merit to the pursuit of a mental

deficit diminished capacity defense, our conclusion that trial counsel appropriately

investigated and presented a voluntary intoxication defense, and the evidence of record

[J-1-2015] - 46
concerning Appellant’s demeanor before, during, and after the commission of the crime

that contradicted the assertion that he was unable to form the required specific intent, we

find that Appellant has not shown that but for trial counsel’s course of action, the outcome

of this matter would have been different, thus Appellant has not established that he was

prejudiced.

Appellant asserts that we should remand for an evidentiary hearing on the issue of

trial counsels’ failure to develop a mental deficit diminished capacity defense. In

suggesting that a hearing is necessary, Appellant first perceives that it was unreasonable

for Judge Sarmina to credit trial counsel’s statement at the January 1, 2013 hearing,

discussed supra, that Dr. Tepper was unable to support such a guilt phase defense,

because, Appellant asserts, the statement was not made in the context of an adversarial

proceeding. Appellant’s brief at 20-21. Appellant did not complain of Judge Sarmina’s

reliance on trial counsel’s explanation at that the time it occurred, however, nor did

Appellant raise the allegation of error in his Rule 1925(b) statement. As such, it cannot

now provide a basis for relief. See Pa.R.A.P. 302(a) (“Issues not raised in the lower

court are waived and cannot be raised for the first time on appeal.”); Pa.R.A.P.

1925(b)(vii) (“Issues not included in the Statement and/or not raised in accordance with

the provisions of this paragraph (b)(4) are waived.”); Commonwealth v. Hairston, 624 Pa.

143, 170, 84 A.3d 657, 672 (2014) (citing Commonwealth v. Castillo, 585 Pa. 395, 888

A.2d 775, 780 (2005) (“Any issues not raised in a Pa.R.A.P. 1925(b) statement will be

waived.”)); Commonwealth v. Murray, 623 Pa. 506, 535, 83 A.3d 137, 155 (2013)

(Allegation that the trial court violated notions of due process by partaking in an ex parte

[J-1-2015] - 47
communication waived under Pa.R.A.P. 302(a) due to failure to lodge an objection at the

time the communication was revealed).

Appellant additionally asserts that remand for an evidentiary hearing is necessary

because he raised material issues of fact as to trial counsel’s failure to provide Dr. Tepper

with Appellant’s school records and psychiatric and family counseling records, and the

PCRA court ignored trial counsel’s failure to obtain evidence to independently support a

mental deficit diminished capacity defense. Appellant’s brief at 21 (citing N.T. 10/25/11,

12-13). Appellant has not proven the necessity of remand for an evidentiary hearing on

this issue, however. Judge Sarmina did not find credible Dr. Tepper's testimony that had

he received the records he would have been persuaded to send petitioner for

neuropsychological testing, and she was not persuaded that had Dr. Tepper been

provided additional records he would have changed his opinion at trial that petitioner did

"not exhibit any signs or symptoms indicative of an underlying major mental illness or

disorder."

In conjunction with Appellant’s assertion that trial counsel rendered ineffective

assistance for failing to raise and/or properly support diminished capacity and heat of

passion defenses, Appellant also argues appellate counsel’s ineffectiveness as follows:

Appellate counsel had no reasonable basis for failing to raise [trial
counsel’s failure to investigate and present evidence supporting a
diminished capacity/voluntary intoxication or heat of passion/voluntary
manslaughter defense] on direct appeal. He could have made this claim
as one sounding in trial counsel’s ineffectiveness for failing to investigate
and raise a meritorious defense. For the reasons set out above, the claim
would have been meritorious. Moreover, counsel could have had no
strategic reason for failing to raise this claim on appeal, as the raising of a
meritorious claim was obligatory. Appellant has also established
prejudice. Had counsel raised this claim on direct appeal, there is a
reasonable probability that the outcome of the appeal would have been
different.

[J-1-2015] - 48
Appellant’s brief at 20. Because Appellant has not demonstrated his entitlement to relief

on the underlying claim of trial counsel’s ineffectiveness, however, his claim of appellate

counsel's ineffectiveness is necessarily defeated as well. See Moore, 580 Pa. at 289, n.

3, 860 A.2d at 94, n.3.

Claim 2. Whether Mr. Mason is Entitled to a New Trial Because the
Commonwealth Elicited Improper, Prejudicial Hearsay and
Whether Counsel were Ineffective When They Did Not Object or
Raise the Issue on Direct Appeal.

Officer Terry Brown testified as a prosecution witness as Appellant’s trial. As

noted above, Officer Brown arrested Appellant on March 31, 1994 for assaulting the

victim. The following exchange occurred at trial:

PROSECUTION: What observations about [the victim’s] demeanor did
you make that led you to any particular conclusion about her state of mind?

WITNESS: Well, she was --- she had like a frightened look on her face
like she really didn’t want us to stop or she did want us to stop, it was really
hard to tell, but I knew something was wrong, at which time as they
approached the driver’s side of the wagon I jumped out of the wagon and I
said to the female, Miss, are you alright. She started to say yes.

DEFENSE COUNSEL: Your Honor, objection.

COURT: Overruled.

WITNESS: She started to say yes and then the defendant, I noticed that
the female had bruises on her forehead, she had one on her neck, she had
one on her mouth, and at which time the defendant said that a bunch of girls
had jumped her, at which time she snatched away from the defendant and
said he did it.

DEFENSE COUNSEL: Objection, Your Honor.

THE COURT: Just a moment. Overruled.

PROSEUCTION: And she said what?

[J-1-2015] - 49
 WITNESS: At which time she pointed to the defendant and she state to
me he did it. I automatically placed the defendant under arrest. L I
spoke with the female, asked her was she okay and I asked her if she
wanted to press charges, at which time she was very unsure and I said,
well, he’s under arrest anyway for what I see and from what you stated, he’s
under arrest. She-

PROSECUTION: What -- go ahead.

WITNESS: At which time she says if you place him under arrest he’s
going to kill me.

NT 2/9/96, 63-64.41 Appellant’s trial counsel did not object to this final response, nor was

the issue raised by appellate counsel via post-verdict motion or on direct appeal

Appellant now asserts to this Court:

As evident from the prosecutor’s question preceding the impermissible
hearsay, which was changed mid-sentence, the prosecutor knew that the
hearsay was improper. The prosecutor asked, “What- go ahead.”
Evidently, his question was going to be “What [did she say]?” But, the
prosecutor presumably feared that such a question would draw an objection
and so he changed it to, “. . . go ahead.”

Appellant’s brief at 22. Appellant asserts that the prosecutor’s question called for “highly

improper and prejudicial hearsay, the statement did not fit any of the hearsay exceptions,

and trial counsel erred in failing to object to it.” Id. at 22-23.42

41 Judge Jones later instructed the jury the evidence it heard “tending to prove that the
defendant was arrested for an offense for which he is not on trial” was before it for the
limited purpose of “tending to show motive, intent and malice.” NT 2/14/96 at 122.
42 Appellant does not address what constitutes hearsay. As this Court has explained:

“Hearsay, which is a statement made by someone other than the declarant
while testifying at trial and is offered into evidence to prove the truth of the
matter asserted, is normally inadmissible at trial.” Commonwealth v.
Carson, 590 Pa. 501, 913 A.2d 220, 254 (2006); See Pa.R.E. 801(c) & 802.
Of course, out-of-court statements by an unavailable declarant may be
admissible if they fit within one of several recognized hearsay exceptions,
such as former testimony, a statement under belief of impending death, a
statement against interest, or a statement of personal or family history.
(continuedL)

[J-1-2015] - 50
 Before addressing the merits of this claim we note that the Commonwealth has

asserted that it has been waived for Appellant’s failure to include it in his amended PCRA

petition or any subsequent court approved amendment/supplement to that petition.

Commonwealth’s brief at 30-31 (citing Reid, ___ Pa. ___, 99 A.3d at 484;

Baumhammers, 92 A.3d at 729-30; Elliott, 80 A.3d at 430).

A review of the record confirms that the claim was not included in Appellant’s

January 25, 2002 amended PCRA petition. Instead, it is raised in “Petitioner’s

Supplement and Response in Opposition to the Commonwealth’s Motion to Dismiss and

Reply in Support of his Motion for Relief pursuant to Atkins v. Virginia,” filed on November

10, 2003. The supplement and response specifically asserted:

Upon further investigation, Petitioner, through counsel and pursuant to
Pa.R.Crim.P. 905(A) (“Amendment [of a post-conviction petition] shall be
freely allowed to achieve substantial justice”), avers the following
supplemental claims:
L
Claim XVII. MR. MASON IS ENTITLED TO A NEW TRIAL BECAUSE
THE COMMONWEALTH IMPROPERLY ELICITED IMPROPER,
PREJUDICIAL HEARSAY AND COUNSEL WERE INEFFECTIVE WHEN

(Lcontinued)
See Pa.R.E. 804. In the alternative, out-of-court statements may be
admissible because they are non-hearsay, in which case they are
admissible for some relevant purpose other than to prove the truth of the
matter asserted. See Commonwealth v. [Raymond] Johnson, 576 Pa. 23,
838 A.2d 663, 680 (2003) (defendant's statements threatening witness's
family admissible as verbal acts, a form of non-hearsay, because evidence
not offered to establish truth of matter asserted, but rather, to demonstrate
fact of attempted influencing of witness); Commonwealth v. Puksar, 597 Pa.
240, 740 A.2d 219, 225 (1999) (statements by witness who overheard
defendant and his brother (the victim) arguing were admissible as
non-hearsay because not offered to prove truth of matter asserted, but
rather to establish motive for killings).
Commonwealth v. Ali, 608 Pa. 71, 126-27, 10 A.3d 282, 315-316 (2010).

[J-1-2015] - 51
 THEY DID NOT OBJECT OR RAISE THE ISSUE ON POST-VERDICT
MOTIONS OR DIRECT APPEAL.

“Petitioner’s Supplement and Response in Opposition to the Commonwealth’s Motion to

Dismiss and Reply in Support of his Motion for Relief pursuant to Atkins v. Virginia,” filed

11/10/03 at 68, 79 (capitalization in original).43

Appellant does not point to the location in the record where permission to add this

supplemental claim was granted by the PCRA court, and our review of the docket sheet

and record reveal nothing to suggest Appellant received such permission.44 Although

Judge Jones dealt with several of Appellant’s claims, he did not specifically address this

allegation, nor was it addressed by Judge Sarmina when she took up the case. As we

noted above, following the transition from one judge to the other, there was obviously

confusion over what issues had been addressed by Judge Jones and what issues

remained for Judge Sarmina’s determination. It is clear from the briefs and arguments

presented by the parties, as well as the transcripts of the proceedings before Judge

Sarmina, that the question of whether Judge Jones had granted Appellant permission to

amend his PCRA petition to include this issue did not arise once the matter was

transferred to Judge Sarmina. It is also clear that the underlying ineffectiveness claim

was not one of the “remaining” issues Appellant sought permission to argue to Judge

Sarmina following the evidentiary hearing on the penalty phase mitigating evidence issue,

43 Like Appellant’s current brief to this Court, the supplement and response asserted that
the statement in question was hearsay, and did not fit any of the hearsay exceptions.
“Petitioner’s Supplement and Response in Opposition to the Commonwealth’s Motion to
Dismiss and Reply in Support of his Motion for Relief pursuant to Atkins v. Virginia,” filed
11/10/03 at 79.
44 The docket sheet accompanying the certified record in this case titles the November

10, 2003 document a “Brief in Opposition to Motion for Dismissal.”

[J-1-2015] - 52
and it is similarly clear that Judge Sarmina did not address the issue.45 Thus, when

Judge Sarmina dismissed Appellant’s PCRA petition, this claim was not mentioned in any

way.

Appellant does not dispute the Commonwealth’s assertion that he failed to secure

permission to amend his request for post-conviction relief to include this claim, but, he

now complains that the PCRA court’s failure to provide proper Rule 909 notice prevented

him from curing certain deficiencies alleged by the Commonwealth, including the failure

to secure permission to supplement his PCRA petition with additional claims. Appellant

did not raise this alleged error before the PCRA court at the time his request for

post-conviction relief was denied, nor did he include it in his Rule 1925(b) statement.46

Instead, he waited until February 22, 2015 (nearly two years after his PCRA petition was

denied) to include it in a reply brief to the Commonwealth’s brief to this Court. Reply brief

filed 2/2/15 at 9.

Because Appellant did not include the claim in a court-approved amendment to his

PCRA petition, it was never decided by the PCRA court. Further, Appellant did not alert

the PCRA court that the issue had been passed over until it was too late for the court to

act to remedy the situation by allowing the amendment.47 This claim has not been

45 Unlike the heat of passion issue, Appellant did not address this claim to Judge Sarmina
during the oral arguments that followed the evidentiary hearing.
46 The Rule 1925(b) statement raises the underlying ineffectiveness claim itself, as if it

had been addressed and denied by the PCRA court and is properly before this court for
review. Pa.R.A.P. 1925(b) statement filed 2/20/13 at 4, claim 14.
47 Inclusion of the issue in Appellant’s Rule 1925(b) statement does not alter this

circumstance. See Ali, 10 A.3d at 293 (A claim raised in a Rule 1925(b) statement
could not undo trial-level waiver); Steiner v. Markel, 600 Pa. 515, 523, 968 A.2d 1253,
1257 (2009) (“[A] 1925(b) statement can therefore never be used to raise a claim in the
(continuedL)

[J-1-2015] - 53
preserved for determination by this Court. Reid ___ Pa. at ___, 99 A.3d at 484;

Baumhammers, 625 Pa. at 390, 92 A.3d at 729-30; Elliott, 622 Pa. at 261, 80 A.3d at 430.

Claim 3. Whether Mr. Mason is Entitled to a New Trial Because the
Commonwealth Exercised its Peremptory Challenges in a
Gender-Discriminatory Manner and Whether Prior Counsel were
Ineffective for Failing to Litigate This Issue.

Appellant’s brief to this Court asserts that because the Commonwealth “used its

peremptory strikes in a gender discriminatory manner to exclude women from the jury,”

and “had no gender-neutral reason for striking these female prospective jurors,”

Appellant’s equal protection was violated and he is entitled to a new trial. Appellant’s

brief at 25 (citing J.E.B. v. Alabama, 511 U.S. 127 (1994)).48 Since Appellant’s trial and

(Lcontinued)
first instance.”); Commonwealth v. McMullen, 599 Pa. 435, 452, 961 A.2d 842, 852
(2008) (“A claim which is waived before the trial court is not given life by raising it for the
first time after an appeal has been taken.”).
48 J.E.B., which extended the holding of Batson, supra, determined that “[i]ntentional

discrimination on the basis of gender by state actors violates the Equal Protection Clause,
particularly where ... the discrimination serves to ratify and perpetuate invidious, archaic,
and overbroad stereotypes about the relative abilities of men and women.” J.E.B. 511
U.S. at 130-31. The defendant has the initial burden of demonstrating a prima facie case
that the prosecutor discriminated against potential jurors on the basis of gender, and to do
so must specifically identify:
(1) the gender of all the venirepersons in the jury pool; (2) the gender of all
venirepersons remaining after challenges for cause; (3) the gender of those
removed by the prosecution; (4) the gender of the jurors who served; and
(5) the gender of jurors acceptable to the Commonwealth who were stricken
by the defense.
Spotz, 587 Pa. at 35-36, 896 A.2d at 1211 (citing Commonwealth v. Aaron Jones, 542 Pa.
464, 668 A.2d 491, 519 (1995)).

[J-1-2015] - 54
direct appeal counsel did not complain of this allegedly discriminatory use of peremptory

strikes, Appellant couches his allegation as an ineffectiveness claim. Id.49

Appellant did not raise this allegation in his amended PCRA petition, but included it

in his “Petitioner’s Supplement and Response in Opposition to the Commonwealth’s

Motion to Dismiss and Reply in Support of his Motion for Relief pursuant to Atkins v.

Virginia,” filed on November 10, 2003. As with Appellant’s previous issue, the

Commonwealth again asserts that this allegation has been waived for failure to include it

in a court approved supplement/amendment. Commonwealth’s brief at 36 (citing Reid,

___ Pa. at ___, 99 A.3d at 484; Elliott, 622 Pa. at 261; 80 A.3d at 430).

Appellant does not point to the location in the record where the PCRA court

granted him permission to supplement/amend his request for post-conviction relief to

include this claim of gender discrimination in the Commonwealth’s peremptory

challenges. As with the prior issue he does not dispute that his request to amend his

PCRA petition was never granted, and instead asserts via his February 2, 2015 reply brief

that he was prevented from curing this deficiency by the PCRA court’s failure to provide

49A petitioner raising a Batson/J..E.B. claim through an ineffectiveness of counsel
challenge has an additional burden.
Defaulted [Batson/J.E.B.] claims argued through the derivative guise of
ineffectiveness are not, indeed cannot, be treated the same as properly
preserved [Batson/J.E.B.] objections. See Commonwealth v. Uderra, 580
Pa. 492, 862 A.2d 74, 86 (2004). When there is no [Batson/J.E.B.]
objection during jury selection, “a post-conviction petitioner may not rely on
a prima facie case under [Batson/J.E.B.], but must prove actual, purposeful
discrimination by a preponderance of the evidence ... in addition to all other
requirements essential to overcome the waiver of the underlying claim.”
Id. at 87. In the absence of such a showing, the petitioner cannot meet the
Strickland standard.
Commonwealth v. Sepulveda, 618 Pa. 262, 301-02, 55 A.3d 1108, 1132 (2012) (footnote
omitted).

[J-1-2015] - 55
proper Rule 909 notice. For the reasons expressed with regard to the previous issue, we

find that this issue has not been preserved for our review.

Claim 4. Whether Appellant is Entitled to Relief from His Death Sentence
Because Counsel was Ineffective at the Penalty Phase for Failing
to Investigate, Develop, and Present Mitigating Evidence; Whether
Appellate Counsel was Ineffective for Failing to Raise Trial
Counsel’s Ineffectiveness, All in Violation of the Sixth, Eighth, and
Fourteenth Amendments.

Appellant raised this issue in his January 25, 2002 amended PCRA petition, which

asserted trial counsel’s ineffectiveness for failing to investigate, develop and present

mitigating evident of Appellant’s mental health impairments and history of substance

abuse at the penalty phase of trial, and correspondingly asserted that appellate counsel

was ineffective for failing to argue trial counsel’s ineffectiveness. Amended PCRA

petition filed 1/25/02 at ii-iii, 36, xi, 108.

A review of the records reveals that at the penalty phase hearing, Appellant’s trial

counsel pursued mitigating circumstances under 42 Pa.C.S. § 9711(e)(2)-(4) and (8),

urging the jury to find that Appellant was under the influence of extreme mental or

emotional disturbance and that his capacity to appreciate the criminality of his conduct or

to conform his conduct to the requirements of law was substantially impaired, as well as

asking them to consider his age at the time of the crime and any other evidence of

mitigation concerning Appellant’s character and record and the circumstances of the

offense. N.T. 2/16/96 at 31-36, 40.50 Trial counsel called witnesses in support of the

50 A reading of this portion of the penalty phase transcript reveals that Appellant’s
accusation that “[c]ounsel did not know the statutory mitigating factors prior to
commencement of the sentencing phase,” Appellant’s brief at 30, is blatantly specious.

[J-1-2015] - 56
mitigating circumstances, and incorporated all the evidence presented on Appellant’s

behalf during the guilt phase of trial. Id.

Larry Lawhorn, Appellant’s uncle, explained to the jury that Appellant suffered from

difficulties from a young age, prompting Appellant’s mother to seek educational and

psychiatric help for him. Id. at 43-45. Mr. Lawhorn explained that although Appellant

was a respectful person who was clearly crying out for help, “the systems failed him.” Id.

at 46. Thelma Mason, Appellant’s mother, testified that Appellant had problems

concentrating and suffered from learning disabilities that caused him to repeat first grade.

Mrs. Mason told the jury that Appellant, along with rest of the family, underwent

counseling to determine what the problem was, but Appellant continued to have trouble

through elementary school into junior high school. Id. at 55-56. Appellant was

eventually enrolled in school for children with learning disabilities and behavior problems,

which caused the other children in his neighborhood to tease him for being different. Id.

at 56-57. Mrs. Mason further explained that Appellant eventually started doing drugs

and getting in trouble with the law, and continued to do drugs even while in court ordered

treatment. Id. at 57-58. Appellant’s drug problems persisted, she told the jury, and he

overdosed when he was 17 or 18, but even afterward he continued to battle addiction.

Id. at 58-59. Mrs. Mason confirmed that Appellant had no self-esteem. Id. at 58-60.

In addition to calling lay witinesses to explain to the jury Appellant’s limited mental

capacity and the depth of his struggles with drug addiction, trial counsel also elicited the

testimony of Dr. Tepper, who testified that he met with Appellant on two occasions, with

each meeting lasting between two and two and a half hours, during which time he

interviewed Appellant, collected background information, and performed intellectual and

[J-1-2015] - 57
personality tests. Id. at 72-73. Dr. Tepper explained that as part of his evaluation of

Appellant, he interviewed Appellant’ mother, and reviewed the police reports for the

crime, Appellant’s school records, and some drug and alcohol treatment records. Id. at

73. Dr. Tepper indicated that Appellant’s full scale IQ is 71, with a verbal scale score of

71 and a nonverbal scale score of 73. Id. at 74. Appellant and his mother informed Dr.

Tepper that Appellant suffered from learning problems, and Appellant’s school records

confirmed that Appellant had academic and behavioral problems beginning in

kindergarten. Id. at 75. The personality testing, along with the interviews, suggested to

Dr. Tepper that Appellant has long standing feeling of inadequacy and inferiority, low

self-esteem, and difficulty expressing himself. Id. at 76. Dr. Tepper explained to the

jury that such problems can cause the sufferer to turn to drugs and alcohol, and may

account for the long standing report and record history of Appellant drug and alcohol

issues. Id. at 76-77. Dr. Tepper explained that because Appellant cannot deal with his

emotions or effectively express himself, he may resort to drugs and alcohol, and when he

gets upset or angry he does not have other resources to deal with that anger in a

controlled fashion. Id. at 77. Dr. Tepper further explained that because of Appellant’s

limited intellectual abilities and his low self-esteem, Appellant’s ability to deal with

problems and interact with other people is already reduced, causing him to react more

impulsively and angrily. Id. at 79. When Appellant is upset, agitated or intoxicated, Dr.

Tepper told the jury, Appellant is even less able to maintain control. Id. at 80. Dr.

Tepper was aware of Appellant’s long standing problems with drugs and alcohol, as

Appellant reported to Dr. Tepper that he began experimenting with marijuana and

anti-anxiety pills as a teenager, and later began using cocaine and PCP. Id. at 83.

[J-1-2015] - 58
 In order to convince the jury that it should find aggravating circumstances, the

Commonwealth asserted that Appellant committed the killing in the perpetration of a

felony, that he had a significant history of felony convictions involving the use or threat of

violence, and that he knowingly created a grave risk of death to another person in addition

to the victim when committing the offense. 42 Pa.C.S. § 9711(d)(6)-(7), (9). The

Commonwealth incorporated pertinent guilt phase testimony, including the testimony of

the victim’s mother as to Appellant’s entry into her home and the presence of the victim’s

son, and the testimony of the victim’s son as to where he was and what he observed, and

also incorporated the stipulation as to Appellant’s felony convictions. N.T. 2/16/96 at 41.

At the close of the penalty phase of trial, the jury found two aggravating circumstances

(that Appellant killed the victim while committing a felony, and that he had a significant

history of felony convictions involving the use or threat of violence), but no mitigating

circumstances.

Appellant’s amended PCRA petition specifically faulted trial counsel for failing to

investigate evidence of Appellant’s childhood dysfunction and abuse and his mental

health deficiencies, and for failing to prepare the penalty phase witnesses to testify.

Amended PCRA petition filed 1/25/02 at 37, 41, 42. Although Judge Jones did not

originally grant an evidentiary hearing in this issue, See Order filed 1/19/05, he later

indicated that the hearing would encompass whether trial counsel rendered ineffective

assistance for failing to investigate, develop, and present evidence of Appellant’s mental

health treatments and history of substance abuse. N.T. 11/16/07 at 3; N.T. 11/27/07 at

10. As noted above, Judge Jones was moved to the Federal bench before he was able

to conduct the evidentiary hearing, however, and Judge Sarmina took his place. When

[J-1-2015] - 59
the evidentiary hearing eventually commenced on October 24, 2011, Appellant indicated

to Judge Sarmina that its subject matter had been limited by Judge Jones “to the question

of whether trial counsel was ineffective in failing to present L adequate mental health

testimony and background as it pertains to the mitigators E2 and E3 [that Appellant was

under the influence of extreme mental or emotional disturbance and that his capacity to

appreciate the criminality of his conduct or to conform his conduct to the requirements of

law was substantially impaired].” N.T. 10/24/11 at 6-7.51

During the evidentiary hearing, Appellant presented expert testimony from Dr.

Robert L. Sadoff, an expert in forensic psychiatry, Dr. Gerald Cooke, an expert in forensic

and neuropsychology, Dr. Richard Restak, an expert in neurology; and Dr. Tepper,

Appellant’s trial expert. Attorney Thomas Moore, Appellant’s trial counsel also testified,

as did Attorney Gerald Stein, Appellant’s direct appeal counsel. Appellant presented lay

testimony from his mother, his uncle, Larry Lawhorn , and his brother, Brian Mason.

Following the evidentiary hearing, the parties submitted post-hearing briefs, and

oral argument occurred on February 13, 2012, at the conclusion of which Judge Sarmina

51 Although Appellant’s PCRA counsel represented to Judge Sarmina that Judge Jones
limited the evidentiary hearing in this regard, N.T. 10/24/11 at 6-7, Appellant now asserts
to this Court that we should remand the matter for consideration of all mitigating evidence,
unconstrained by such limitation, because Judge Sarmina erred in relying on counsel’s
representation. Appellant’s Reply brief filed 2/2/15 at 3. Appellant did not raise this
issue before Judge Sarmina in his February 6, 2012 post-hearing memorandum of law, in
his June 19, 2012 supplemental post-hearing memorandum of law, during the June 22,
2012 oral argument, or in his August 28, 2012 motion for reconsideration. Neither did
Appellant include this allegation in his Rule 1925(b) statement of matters complained of
on appeal, thus it has not been addressed by Judge Sarmina. Further Appellant did not
raise the issue in his original brief but instead waited until he filed his reply brief on
February 2015 to seek remand. He is not entitled to relief on this allegation. Pa.R.A.P.
302(a); Pa.R.A.P. 1925(b).

[J-1-2015] - 60
determined that Appellant had not proven that trial counsel was ineffective for failing to

adequately present mitigating evidence. Appellant then filed a supplemental

post-hearing memorandum of law, and finally, a motion for reconsideration of Judge

Sarmina’s February 13, 2012 denial of relief. Judge Sarmina denied reconsideration on

January 3, 2013. Appellant appealed, and his Appellant’s Rule 1925(b) statement of

matters complained of on appeal alerted the court that Appellant intended to assert that

trial counsel rendered ineffective assistance at the penalty phase of trial for failing to

investigate, develop and present mitigating evidence of Appellant’s “dysfunctional

upbringing and mental health impairments and history of substance abuse, including

evidence of intellectual disability, brain damage, childhood dysfunction, Dysthymia,

attention-deficit/hyperactive disorder, and the psychiatric/psychological impact of drug

abuse,” and that appellate counsel was ineffective for failing to pursue these claims.

Pa.R.A.P. 1925(b) statement, issue 6.

In addressing these allegations, Judge Sarmina acknowledged Appellant’s

insistence that trial counsel’s failure to investigate Appellant’s background prevented

counsel from presenting to the jury the full extent and significance of Appellant’s history of

drug abuse and his mitigating mental impairments. Pa R.A.P. 1925(a) Opinion at 55

(citing Appellant’s Post-Hearing Brief, filed 2/6/2012 at 3). In addressing whether

Appellant has proven trial counsel ineffective in this regard, Judge Sarmina considered

the burden imposed upon counsel with respect to the presentation of mitigation evidence,

examined the evidence that trial counsel actually presented during the evidentiary

hearing, and assessed whether counsel’s course of action was unreasonable.

[J-1-2015] - 61
 With regard to counsel’s course of conduct, Judge Sarmina cited the United States

Supreme Court’s indication that “[c]ounsel for a capital defendant has a duty to ‘conduct a

thorough investigation of the defendant’s background.’” Id. at 56 (citing Williams v.

Taylor, 529 U.S. 362, 396 (2000)). Turning to the pronouncements of this Court, Judge

Sarmina quoted the following discussion from Carson,:

The key to our evaluation of counsel’s investigation is not focused on
whether counsel should have presented a mitigation case or specific
evidence, but rather questions whether the investigation supporting
counsel's decision not to present a particular mitigation case or evidence
was reasonable. In evaluating the reasonableness of counsel's
investigation, this Court must remember that counsel’s decisions may
depend heavily on the information that his client provides to him.

Rule 1925(a) opinion at 56 (citing Carson, 590 Pa. at 580, 913 A.2d at 266 (citations

omitted)).

With regard to trial counsel’s performance here, Judge Sarmina concluded that

Appellant has not shown that trial counsel’s course of action was unreasonable, thus

Judge Sarmina opines that trial counsel did not render ineffective assistance and

Appellant is not entitled to relief on this issue. To reach this conclusion, Judge Sarmina

initially noted that trial counsel hired Dr. Tepper for purposes of both the guilt and penalty

phases, and she acknowledges Dr. Tepper’s testimony at the evidentiary hearing that as

part of his evaluation he met first with Appellant and gathered background information

from him January 1995, then met and gathered background information from Appellant’s

mother in February 1995. Id. (citing N.T. 10/25/11 at 95). Judge Sarmina

acknowledges that following Dr. Tepper’s interview with Appellant’s mother, Dr. Tepper

requested that trial counsel provide him with additional school records, mental health

records, and drug treatment records. Id. (citing N.T. 10/25/11 at 100). Dr. Tepper then

[J-1-2015] - 62
interviewed Appellant for a second time and administered psychological testing in March,

1995. Id. (citing N.T. 10/25/11 at 95). Judge Sarmina notes that although Dr. Tepper

did not receive all the records he requested, based on the records he did receive, the

testing he performed, and the information provided by Appellant and his mother, Dr.

Tepper was able to testify at the penalty phase hearing that Appellant was borderline

intellectually disabled, that he had long-standing feelings of inferiority and problems with

drug addiction, and that the cumulative effect of these issues compromised Appellant’s

ability to exercise control over his own behavior. Id. (citing N.T. 2/16/1996 at 74-80).

Judge Sarmina notes Appellant’s current allegation that had trial counsel

uncovered the records requested by Dr. Tepper, Dr. Tepper would have “recommended

neurological testing, testing which ultimately revealed Mr. Mason's organic brain

damage.” Id. (citing Appellant’s Post-Hearing Brief, filed 2/6/2012 at 13). She further

acknowledges Dr. Tepper’s statement during the evidentiary hearing that had he received

“(1) records relevant to [Appellant’s] intellectual functioning, (2) prison records from 1992,

which indicated that [Appellant] suffered head trauma, and (3) Eagleville Hospital records

from 1993 regarding [Appellant’s] drug abuse[,]” he would have referred Appellant to a

neuropsychologist for a neuropsychological evaluation to look into potential or possible

brain dysfunction. Id. at 56-57 (citing N.T. 10/25/2011 at 125-45).

Judge Sarmina explains, however, that she did not credit Dr. Tepper’s testimony

that the receipt of such records would have persuaded him to refer Appellant to a

neuropsychologist. Id. at 57. Specifically, Judge Sarmina reiterates that based on Dr.

Tepper’s evaluation of Appellant, and the information he received from the records

provided and the interviews conducted, Dr. Tepper did not deem it necessary to order

[J-1-2015] - 63
neuropsychological testing and offered his opinion that Appellant did not exhibit any signs

or symptoms indicative of an underlying major mental illness or disorder. Id. at 57 (citing

N.T. 10/25/11 at 147); see also Letter from Dr. Tepper to trial counsel dated 3/28/95 at 4.

Judge Sarmina opines that none of the additional records presented at the evidentiary

hearing represented new information, i.e. information unknown to Dr. Tepper that would

have altered the conclusion already reached. Rule 1925(a) Opinion at 57. Records

which merely confirmed what Dr. Tepper already knew, could not, in Judge Sarmina’s

opinion, provide a persuasive reason for Dr. Tepper to change his opinion that Appellant

did not exhibit any signs or symptoms indicative of an underlying major mental illness or

disorder. Id. “[A]lthough Dr. Tepper may not have had the physical records in his

possession, he had already reached the conclusions to which he would have been

directed by this data.” Id.

Specifically with regard to Dr. Tepper’s assertion that he would have been alerted

to a possible neuropsychological problem if he had had records relevant to Appellant’s

intellectual functioning and intelligence testing, Judge Sarmina concluded that the data

included in the additional public school records would only have led Dr. Tepper to a

conclusion that he had already reached: “that [Appellant] had been severely limited

intellectually since he was a young child.” Id. at 58 In so determining, Judge Sarmina

specifically found that despite Dr. Tepper’s indication that he learned from the additional

public school records that Appellant had extremely low standardized test scores over a

number of years that evidenced constant attention and concentration difficulties which

might now be considered Attention Deficit Disorder and/or have been brain based, Dr.

Tepper was already aware from his original testing and interviews that Appellant fell

[J-1-2015] - 64
within the range of borderline intellectual disability, and that Appellant did so poorly in

school that he repeated first grade and was placed in a school for those with learning

disabilities. Id. (citing N.T. 10/25/11 at 131-132, 148-149, 156-158).52 Because the

records pertaining to Appellant’s intellectual function which trial counsel failed to provide

to Dr. Tepper provided only cumulative information to that which he was already aware,

the failure to provide such information does not support a finding that trial counsel

rendered ineffective assistance in this regard. Id.

Neither was Judge Sarmina persuaded that trial counsel rendered ineffective

assistance for failing to obtain prison records indicating that Appellant suffered some kind

of head trauma. Id. at 59. Judge Sarmina points out that as part of Dr. Tepper’s 1995

evaluation he had asked Appellant whether he had suffered any head injuries, but

Appellant did not report any. Id. (citing N.T. 10/25/11 at 111, 177). Judge Sarmina

posits that Appellant’s failure to include the 1992 incidents in the history he relayed to Dr.

Tepper suggests that Appellant did not consider them to be significant. Id. Dr. Sarmina

further opines that it was reasonable for Dr. Tepper and trial counsel to rely on Appellant’s

representations of his history, thus Dr. Tepper did not ask trial counsel to search for

records pertaining to unreported head injuries, and trial counsel cannot be faulted for

failing to initiate such a search on his own. Id.

With regard to trial counsel’s failure to provide Dr. Tepper with records pertaining

to drug treatment Appellant received at Eagleville Hospital in 1993, and Dr. Tepper’s

52 Judge Sarmina additionally notes that during the evidentiary hearing, Dr. Tepper could
not specify which records indicative of Appellant’s low intelligence were in his possession
at the time of trial, and which records were received thereafter. Id. at 58 (citing N.T.
10/25/11 at 150).

[J-1-2015] - 65
subsequent claim that had he reviewed such reports he would have recommended

neuropsychological testing, Judge Sarmina acknowledges Dr. Tepper’s indication that

the records reflected that Appellant suffered from at least a ten year history of extensive

drug use, Id. (citing N.T. 10/25/11 at 141-142), but Judge Sarmina further points out that

this information was already known to Dr. Tepper as a result of the information provided

by Appellant and his mother that Appellant began using cocaine and other drugs as a

teenager, id. at 60 (citing N.T. 10/25/11 at 165), and that Appellant abused PCP, used

nerve pills, and got high every day from December 1993 through March 1994, id. (citing

N.T. 10/25/11 at 165-166). As such, Judge Sarmina finds incredible the notion that Dr.

Tepper would have changed his opinion if he had reviewed this additional but cumulative

information regarding Appellant’s history of drug abuse. Id.

Judge Sarmina thus concludes that had Dr. Tepper been privy to the records

introduced at the evidentiary hearing, Dr. Tepper would have been confronted with nearly

the same information that he already had. Id. None of the information elicited during

the evidentiary hearing revealed a previously unknown aspect of Appellant’s life--it

merely confirmed Dr. Tepper’s prior findings to be substantially accurate and

complete--that Appellant was a borderline intellectually disabled offender, who struggled

academically throughout his life and abused serious drugs dating back to his teenage

years. Id. Judge Sarmina observes that based on Dr. Tepper’s accurate assessment

of Appellant’s condition and addictions, Dr. Tepper had reasonably concluded that there

was no need to refer Appellant for neuropsychological testing. Id. Judge Sarmina

concludes that as Dr. Tepper’s analysis of Appellant was based on sufficient information,

it was entirely reasonable for trial counsel to rely on Dr. Tepper’s determination that

[J-1-2015] - 66
neuropsychological testing was unnecessary. Id. at 60 (citing Bracey, 795 A.2d at

942-43 (“[C]ounsel was not required to disregard the findings of his expert and continue to

consult experts, at the expense of limited judicial resources, until he found one willing to

testify that Appellant was organically brain damaged . . .”).

In addition to finding that Appellant failed to prove the second prong of the

Strickland/Pierce analysis, Judge Sarmina further determines that even assuming,

arguendo, that trial counsels’ decision not to send Appellant for a neuropsychological

evaluation was entirely unreasonable, Appellant still failed to demonstrate that he was

prejudiced by the absence of testimony that he suffered from organic brain damage. Id.

at 61 n.30. Acknowledging the directive that to assess prejudice in the context of a claim

of ineffective representation as to a penalty phase mitigation investigation, the court must

“‘consider the totality of the available mitigation evidence — both that adduced at trial,

and the evidence adduced in the habeas proceeding — and reweigh it against the

evidence in aggravation,’” Judge Sarmina notes that here, the strongest, most persuasive

mitigation evidence available to Appellant was, in fact, presented during the penalty

phase through Dr. Tepper’s testimony that the combination of Appellant’s low intelligence

and use of drugs significantly impacted his ability to control his impulses. Id. (citing

Sears v. Upton, 561 U.S. 945, 955-56, 130 S.Ct. 3259, 3266-67, 177 L.Ed.2d 1025

(2010); N.T. 2/16/1996 at 78-79). Judge Sarmina suggests that the fact that the jury did

not find Appellant’s lack of impulse control, borne out of drug use and low intelligence, to

rise to the level of a mitigating circumstance indicates that other, less convincing evidence

would not have persuaded the jurors to find a mitigating circumstance, and she reiterates

that she had credited Dr. Barry Gordon's opinion that: (1) Appellant’s ability to appreciate

[J-1-2015] - 67
the criminality of his conduct or to conform his conduct to the requirements of law was not

substantially impaired by his neuropsychological condition or substance abuse, and (2)

that Appellant did not suffer from a mental or emotional disturbance so extreme that he

could not control his behavior. Id. (citing N.T. 10/27/2011 at 38-39). Judge Sarmina

observes that Dr. Gordon based his evaluation on the totality of Appellant’s actions at the

time of the murder, and that she specifically found Dr. Gordon’s reasoning to be sound.

Id. (citing N.T. 10/27/11 at 45-46).

Judge Sarmina thus concludes that the original evidence of mitigation presented

during the penalty phase, and the additional evidence of mitigation presented during the

post-conviction evidentiary hearing, would not have persuaded a jury to find a mitigating

circumstance, thus petitioner was not prejudiced by the failure to present such evidence.

Id.

Our relevant standard of review is well-settled:

In evaluating an ineffectiveness claim alleging counsel's failure to
investigate and present mitigation evidence in a capital case, “we consider
a number of factors, including the reasonableness of counsel's
investigation, the mitigation evidence that was actually presented, and the
additional or different mitigation evidence that could have been presented.”
[Commonwealth v. Lesko, 609 Pa. 128, __, 15 A.3d 345, 380 (2011)];
Commonwealth v. Collins, 585 Pa. 45, 888 A.2d 564, 580 (2005). None of
the aforementioned factors is, by itself, dispositive, because even if
counsel's investigation is deemed unreasonable, the defendant is not
entitled to relief unless the defendant demonstrates that prejudice resulted
from counsel's conduct. Id.

Tharp, ___ Pa. at ___, 101 A.3d at 764 (2014). Furthermore:

Strategic choices made following a less than complete investigation are
reasonable precisely to the extent that reasonable professional judgment
supports the limitation of the investigation. []Bridges, 584 Pa. at [ ---], 886
A.2d [at] 1132 [ ] (citing Commonwealth v. Fears, 575 Pa. 281, 836 A.2d 52,
72 (2003)). Our evaluation of counsel's performance is, however, highly
deferential, and the reasonableness of counsel's decisions cannot be

[J-1-2015] - 68
 based upon the distorting effects of hindsight. Id. Furthermore,
“reasonableness in this context depends, in critical part, upon the
information supplied by the defendant.” Bridges, 886 A.2d at 1132 (citing,
Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373, 383 (1986)).

Commonwealth v. Rega, 593 Pa. 659, 708, 933 A.2d 997, 1025-26 (2007). Finally:

In making this determination, the PCRA court is “to develop a specific
comparison of the mitigation case offered at trial with the credited evidence
offered on post-conviction review....” Commonwealth v. Beasley, 600 Pa.
458, 967 A.2d 376, 391 (2009); Commonwealth v. Gibson, 597 Pa. 402,
951 A.2d 1110, 1123 (2008) (“Gibson I ”) (same). In reviewing the PCRA
court's determination, “we reweigh the evidence in aggravation against the
totality of available mitigating evidence, which includes the evidence
presented at the penalty hearing and the evidence that would have been
presented had counsel conducted a proper investigation.” Gibson II, 19
A.3d at 526; see also Lesko, 15 A.3d at 384–85 (emphasizing that
Strickland prejudice in this context requires consideration of context of
case, including gravity of aggravating circumstances and strength of
mitigating circumstances found by jury).

Commonwealth v. Watkins, ___ Pa. ___,108 A.3d 692, 713 (2014) (per curiam).

The reasonableness of counsel’s investigation into potentially mitigating evidence

may depend upon the information provided by defendant, “and counsel cannot be

deemed ineffective for not introducing information uniquely within the knowledge of the

defendant and his family which is not supplied to counsel.” See Commonwealth v.

Williams, 577 Pa. 473, 485, 846 A.2d 105, 113 (2004) (citing Commonwealth v. Bond,

572 Pa. 588, 609-610, 819 A.2d 33, 45-46 (2002)). Nor may a determination of

ineffective assistance of counsel be founded upon counsel’s failure to present mitigating

evidence that would have been cumulative of evidence presented at the penalty phase.

Commonwealth v. Mitchell, ___ Pa. ___, 105 A.3d 1257, 1286 (2014) (refuting merit to

argument that even more details of defendant’s alcoholism would have persuaded jury to

accept his diminished capacity defense).

[J-1-2015] - 69
 In addition to denying relief on the grounds stated in footnote 51, supra, our

comprehensive review of both the record and governing jurisprudence leads us to adopt

the probing, well-reasoned opinion of Judge Sarmina discerning no merit to any of

Appellant’s ineffectiveness claims. Accordingly, Appellant’s claim fails.

Claim 5. Whether Mr. Mason is Entitled to a New Sentencing Hearing
Because the Trial Court Impermissibly Curtailed the Questioning
of Defense Psychologist Allan Tepper and Whether Counsel were
Ineffective for Failing to Properly Litigate this Issue.

During the penalty phase of trial, Dr. Tepper testified that Appellant suffered from

personality and intellectual deficits, and was asked to explain to the jury the effect those

deficits, combined with Appellant’s long term drug use, would have on Appellant’s ability

to control his behavior. N.T. 2/16/96 at 79. Following Dr. Tepper’s response, which

indicated that Appellant’s ability to control his behavior was limited by these factors, trial

counsel inquired: “Is it possible that the defendant in a situation might be able to form the

specific intent to kill while not being able to control his conduct?” Id. at 80. The

Commonwealth objected, and Judge Jones sustained the objection. Id. Appellant

now asserts before this Court that it was error to sustain the Commonwealth’s objection

to this question, and further that following the objection, his trial counsel should have

argued to the court that the answer would properly be before the jury because it would

have been permissible evidence in support of the statutory mitigating factor of

substantially impaired capacity (Section 9711(e)(3)). 53 Id. Additionally, Appellant

53 Appellant asserts that if allowed to answer the question, Dr. Tepper would have
responded that “at the time of the killing, [Appellant] would have “been unable to conform
his conduct to the requirements of the law.” Appellant’s brief at 56 (citing NT 2/16/96 at
80).

[J-1-2015] - 70
claims, appellate counsel rendered ineffective assistance for failing to raise trial

counsel’s error. Id. at 57.

As with the second and third issues raised by Appellant’s brief to this Court,

Appellant did not raise this allegation in his amended PCRA petition, but instead included

it in his “Petitioner’s Supplement and Response in Opposition to the Commonwealth’s

Motion to Dismiss and Reply in Support of his Motion for Relief pursuant to Atkins v.

Virginia,” filed on November 10, 2003. Also as with those previous issues, the

Commonwealth asserts that this allegation has been waived for failure to include it in a

court approved supplement/amendment. Commonwealth’s brief at 36 (citing Reid, ___

Pa. at ___, 99 A.3d at 484; Elliott, 622 Pa. at 261, 80 A.3d at 430)).

Appellant does not point to the location in the record where the PCRA court

granted him permission to supplement/amend his request for post-conviction relief to

include this claim, and as with the prior issues he does not dispute that he did not obtain

permission to amend his PCRA petition, but instead asserts via his February 2, 2015 reply

brief that he was prevented from curing this deficiency by the PCRA court’s failure to

provide proper Rule 909 notice. For the reasons expressed with regard to the previous

issues, we find that this issue has not been preserved for our review.

Claim 6. Whether the Trial Court’s Failure to Instruct the Jury that “Life
Imprisonment” Means Life Without Possibility of Parole Violated
Appellant’s Rights Under the Sixth, Eighth and Fourteenth
Amendments to the United States Constitution and Whether Trial
Counsel was Ineffective for Failing to Request the Instruction and
Appellate Counsel was Ineffective for Failing to Raise the Issue
and Prior Counsel’s Ineffectiveness.

Appellant presented this issue in his amended PCRA petition, which argued in

pertinent part that such a penalty phase instruction was required under Simmons v. South

[J-1-2015] - 71
Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed. 133 (1994), because Appellant’s future

dangerousness had been put at issue by (1) the introduction during the guilt phase of trial

evidence of Appellant’s prior assault on the victim and his criminal history, (2) the

prosecutor’s statement during his guilt phase closing argument that the evidence showed

that Appellant had “occasions of violence,” and (3) the statement in the prosecutor’s

penalty phase closing argument that Appellant had a “history of violence.” Amended

PCRA petition filed 1/25/02 at 59, 61 (citing N.T. 2/9/96 at 59-66, 92-99; N.T. 2/14/96 at

97, N.T. 2/16/96 at 110, 112).54 Appellant reiterated these claims in his “Motion for

Reconsideration and Supplemental Post-Hearing Memorandum of Law,” which

additionally argued that on cross-examination of Dr. Tepper, the prosecution elicited

testimony that Appellant was “someone, who when angry, can and might respond with

violence,” and asked if Appellant “might become very violent” and “respond with

violence.” “Motion for Reconsideration and Supplemental Post-Hearing Memorandum

of Law” filed 8/28/12 at 10-11.

54 In Simmons, a plurality of the United States Supreme Court held that “where the
defendant's future dangerousness is at issue, and state law prohibits the defendant's
release on parole, due process requires that the sentencing jury be informed that the
defendant is parole ineligible.” Simmons, 512 U.S. at 156, 114 S.Ct. at 2190.
This Court considered the proper scope of Simmons in Commonwealth v.
Speight, 544 Pa. 451, 677 A.2d 317 (1996), cert. denied, 519 U.S. 1119,
117 S.Ct. 967, 136 L.Ed.2d 852 (1997). There, the defendant argued that
his trial counsel had been ineffective for failing to request a jury instruction
that a life sentence means that he must spend his natural life in prison
without the possibility of parole after the jury had asked the trial court for the
definition of a life sentence. We held that under Simmons, a jury must be
informed that life means life without the possibility of parole only when the
prosecutor injects concerns of the defendant's future dangerousness into
the case. In Speight, the prosecutor had not made the defendant's future
dangerousness an issue; therefore, no Simmons instruction was required.
Commonwealth v. May, 551 Pa. 286, 291, 710 A.2d 44, 47 (1998).

[J-1-2015] - 72
 Oral argument on this issue was conducted before Judge Sarmina on January 3,

2013. Judge Sarmina denied Appellant relief on the issue based on this Court’s

determination in Commonwealth v. Fisher, 559 Pa. 558, 741 A.2d 1234 (1999). N.T.

1/3/13 at 28.55

Judge Sarmina’s Rule 1925(a) opinion addresses the three instances alleged to

put Appellant’s “future dangerousness” at issue, Rule 1925(a) opinion at 36 (citing N.T.

2/14/96 at 97; 2/16/96 at 110, 112), and explains that at the time of Appellant’s trial,

then-controlling law required that trial courts provide a Simmons instruction only when the

defendant’s "future dangerousness" was "expressly implicated." Id.56

55 The appellant in Fisher asserted that the trial court erred in refusing to permit defense
counsel to argue, pursuant to Simmons “that a sentence of ‘life imprisonment’ in
Pennsylvania means that Appellant would spend the rest of his life in prison without the
possibility of parole” after the prosecutor’s closing argument (1) quoted from a prison
psychological evaluation report that indicated that “[s]adistic and hostile impulses are
suspected with rigid personality features and a potential for explosive action,” and (2)
queried “I wonder if after tomorrow he'll remain a good guy in prison when it no longer
matters? It won't do him any good after tomorrow.” Fisher, 559 Pa. at 577-578, 741 A.2d
at 1243-1244. The appellant argued that “the inference most likely to be drawn” from
these statements was that he “posed, poses and will continue to pose an explosive and
dangerous threat to persons with whom he interacts in the future,” but this Court
concluded that these two instances “did not impermissibly raise the issue of Appellant's
future dangerousness. Rather, the prosecutor's comments were a fair response to the
evidence of good character presented in mitigation by Appellant,” and reiterated that
“instructions detailing the character of a life sentence are not required where future
dangerousness is not expressly implicated.” Id., 559 Pa. at 578, 741 A.2d at 1244.
56 Judge Sarmina acknowledges that the U.S. Supreme Court has since revisited the

degree of evidence required to trigger a Simmons instruction in Kelly v. South Carolina,
534 U.S. 246, 122 S.Ct 726, 151 L.Ed.2d 670 (2002), which found that introducing
evidence, which only bore "a tendency” to prove dangerousness in the future raised the
specter of a defendant’s "future dangerousness.”' Rule 1925(a) opinion at 36, n.23
(citing Kelly, 534 U.S. at 253-254)). She further notes that this Court clarified, however,
that the expanded definition of "future dangerousness articulated in Kelly did not apply
retroactively, and attorneys who had failed to request a Simmons instruction based on the
(continuedL)

[J-1-2015] - 73
 Judge Sarmina opines that references to a defendant’s violent past are insufficient

to expressly implicate "future dangerousness," and unless the prosecution explicitly

connected a defendant’s prior conduct with the prospect of future harm, a Simmons

instruction was not implicated. Id. at 37 (citing Carson, 590 Pa. at592, 913 A.2d at 273;

Spotz, 587 Pa. at 88, 896 A.2d at 1243)). Here, she concludes, the references to

Appellant’s violent past were insufficient to expressly implicate “future dangerousness,”

thus trial counsel did not render ineffective assistance for failing to request a Simmons

instruction. Id. at 37-38. Since trial counsel was not ineffective, Appellant cannot show

that appellate counsel was ineffective. Id. at 38.57

Appellant’s argument to this Court reiterates the claims raised in his Amended

PCRA petition and the claim regarding Dr. Tepper’s cross-examination first asserted in

his “Motion for Reconsideration and Supplemental Post-Hearing Memorandum of Law.”

Appellant’s brief at 58-62.58

The trial transcript shows that the contested testimony of Dr. Tepper was part of a

larger line of the prosecution’s cross-examination which sought to impeach Dr. Tepper’s

medical impression that Appellant’s difficulty with expressing his emotions played a role

(Lcontinued)
new standard announced in Kelly could not be deemed ineffective for not having done so.
Id. (citing Spotz, 587 Pa. at 92-93, 896 A.2d at 1245-1246). Thus, Judge Sarmina
concluded, “[c]ounsel’s stewardship must be judged under the existing law at the time of
trial and counsel cannot be deemed ineffective for failing to predict future developments
or changes in the law." Id.
57 Judge Sarmina’s Rule 1925(a) opinion does not address Appellant’s assertion

regarding the cross-examination of Dr. Tepper that was raised for the first time in his
“Motion for Reconsideration and Supplemental Post-Hearing Memorandum of Law.”
58 As discussed above, to the extent that Appellant argues an issue that was not included

in his PCRA petition, and for which he was not granted permission to amend, the issue
has been waived.

[J-1-2015] - 74
in his past difficulties with controlling violent thoughts and impulses. Specifically, the

prosecutor read from Dr. Tepper’s report containing the doctor’s opinion that Appellant’s

substance abuse was part of an attempt to control his unpleasant thoughts and emotions,

but he nevertheless, despite these attempts, “possesses somewhat brittle and ineffectual

psychological defenses and thus under more anxiety provoking situations his underlying

thoughts and impulses may come through into consciousness in a less modulated or

controlled fashion.” N.T. at 86. The following testimony was then elicited:

PROSECUTION: Is that to say that if someone makes him angry he
might become very violent?

WITNESS: Simplistically, yes. I mean it’s also trying to say that he might
because of the -- the last sentence that you did not finish with, that because
of some of the underlying feelings he certainly may become either angry or
more violent if he’s pushed.

PROSECUTION: I am somewhat of a simple person, so I’m going to ask
you, is that another way of saying that when he becomes angry, he can
respond with violence?

WITNESS: Yes.

PROSECUTION: Now, then you indicated he had trouble expressing
himself at one point in time in your testimony, I’m not going to your report
now, that he had trouble expressing himself.

WITNESS: I stated that because of the lower verbal skills he has more
difficulty talking about working through problems or feelings.

PROSECUTION: Do verbal skills also include writing skills, writing one’s
feelings out?

N.T. at 86-87. The prosecution then asked Dr. Tepper to read several letters Appellant

had sent to Iona Jeffries and to offer his opinion as to whether they reflected a difficulty

with expressing personal feelings. The doctor opined that the letters contained thoughts

[J-1-2015] - 75
and feelings and were articulate enough to allow the reader to “get a sense of what they

are trying to convey.” N.T. at 87-88, 94-95.

Neither Dr. Tepper’s report nor the line of questioning based upon it suggested

that Appellant posed a future danger. Though written in the present tense and related to

the jury verbatim, Dr. Tepper’s report represented an assessment based on Appellant’s

case history and made no reference to future behavior. Moreover, the context in which

the report was discussed involved the past as well, for the prosecution’s focus was

Appellant’s state of mind around the time he killed Iona Jeffries, as is evidenced by the

prosecution’s attempt to show through Appellant’s letters written to Jeffries that he

possessed the ability to control his emotions and express his feelings at the critical time.

Where Appellant’s future dangerousness was not implicated by the cross-examination of

Dr. Tepper, the PCRA court correctly rejected Appellant’s layered claim of ineffective

assistance of prior counsel for failing to request a Simmons instruction. See Spotz, 610

Pa. at 111, 18 A.3d at 299-300 (rejecting ineffectiveness claim for failing to request a

Simmons instruction to which client was not entitled).

Appellant also contends the prosecution implied in its penalty phase summation

that Appellant possessed the propensity to commit violent acts and would continue to

have such propensity in the future. This argument is based on references to Appellant’s

“history of violence,” N.T. 2/16/96 at 112, and argument that “this person [Appellant] acts

with violence and . . . this killing was a further manifestation of how he responds to acts

and stimuli and his environment and when he gets angry or when he wants something.”

N.T. 2/16/96 at 110. Both challenged excerpts, however, implicate past conduct

generally (“history of violence”) and specifically (the killing was a manifestation of how

[J-1-2015] - 76
Appellant acts with violence and how he responds to stimuli when he gets angry), and did

not refer to future dangerousness. As noted above, Appellant’s trial pre-dated our

decision in Kelly, which prospectively expanded the scope of commentary that implicates

future dangerousness. Our decisional law relative to future dangerousness claims at the

time of Appellant’s trial stated that instructions as to what the term “life sentence” means

“are not required where future dangerousness is not expressly implicated.” See, e.g.,

Commonwealth v. King, 554 Pa. 331, 363, 721 A.2d 763, 779 (1998). As “[a]n attorney

cannot be deemed ineffective for failing to anticipate a change or development in the law,”

Carson, 590 Pa. at 593, 913 A.2d at 274, Appellant’s present ineffectiveness claim fails.

Claim 7. Whether Under Atkins v. Virginia, Appellant is Ineligible
for the Death Penalty; Whether the PCRA Court Erred in
Permitting Appellant, Over Counsel’s Objection, to “Waive”
this Claim.

While Appellant’s January 25, 2002 amended PCRA petition was pending before

Judge Jones, the United States Supreme Court decided Atkins on June 20, 2002.59 On

October 8, 2002, Appellant filed a motion for immediate re-sentencing to life

imprisonment pursuant to Atkins, based on Dr. Tepper’s testimony at trial, which

Appellant asserts was neither contested nor refuted by the Commonwealth, which

established that an IQ between 70 and 79 on the Wechsler IQ test is classified as

borderline intellectually disabled, and Appellant’s overall score was 71, placing him in that

range. Motion filed 10/8/02. Simultaneously, Appellant sought permission to

“supplement and amend” his January 25, 2002 amended PCRA petition to include a claim

59Broadly speaking, Atkins held that the Eighth Amendment's prohibition on cruel and
unusual punishment bars the execution of intellectually disabled offenders. Atkins, 536
U.S. at 321, 122 S.Ct. at 2252.

[J-1-2015] - 77
that he was entitled to post-conviction relief pursuant to Atkins because he had adduced

“considerable evidence regarding his limited mental capacity” during the penalty phase of

trial, including Dr. Tepper’s testimony that Appellant was “borderline [intellectually

disabled].” Supplemental Amended PCRA at II. 5., n. 2. 60 Judge Jones granted

Appellant’s request to supplement his PCRA petition to add this claim. N.T. 10/8/02 at 2.

On March 6, 2003, the Commonwealth filed a response to Appellant’s motion and

request to supplement and amended his PCRA petition, asserting that the issue raised

was legislative in nature and legislative action was currently pending; that Appellant’s

assertion that the Commonwealth must affirmatively prove lack of intellectual disability is

frivolous; and that Appellant’s claim of intellectual disability failed because his own expert

testified that he is not intellectually disabled. Appellant replied, and the Commonwealth

60 Appellant’s supplemental amended petition asserted that the PCRA court had
jurisdiction to hear the Atkins claim under Section 9545(b)(1)(iii) (pertaining to the
assertion of a constitutional right that was recognized after the expiration of the PCRA’s
one year time period filing and held to apply retroactively), Supplemental Amended
Petition at III. 21, suggesting that Appellant believed that in order for the court to have
jurisdiction over the supplemental amended petition, the petition had to fall under an
exception to the PCRA’s time requirements. If this were the case, Section 9545(b)(1(iii)
would not operate to confer jurisdiction, however, because the supplemental amended
petition was clearly filed more than 60 days after Atkins was decided, and would thus run
afoul of Section 9545(b)(2) (“Any petition invoking an exception provided in paragraph (1)
shall be filed within 60 days of the date the claim could have been presented.”) Perhaps
because Appellant’s decision to withdraw the Atkins claim removed the issue from the
court’s focus, neither Judge Jones nor the Commonwealth commented on Appellant’s
citation to Section 9545(b)(1)(iii) or the necessity of meeting an exception to the time bar.
Regardless, this Court has previously indicated that an amendment to a pending, timely
filed PCRA petition, is not independently subject to the PCRA’s time limitations.
Commonwealth v. Flanagan, 578 Pa. 587, 604-605, 854 A.2d 489, 499 (2004).
Flanagan also opined that “PCRA courts are invested with discretion to permit the
amendment of a pending, timely-filed post-conviction petition, and this Court has not
endorsed the Commonwealth's position that the content of amendments must
substantively align with the initial pleading. Rather, the prevailing rule remains simply
that amendment is to be freely allowed to achieve substantial justice.” Flanagan, 578
Pa. at 605, 854 A.2d at 499-500.

[J-1-2015] - 78
then filed a supplemental motion to dismiss on August 19, 2004, to which Appellant

responded on December 23, 2004.

On January 19, 2005, the PCRA court scheduled a February 17, 2005 evidentiary

hearing on several issues, including whether Atkins applied to the instant matter. Shortly

thereafter, however, the court indicated that the February hearing would encompass only

oral argument on the applicability of Grant to the present matter. PCRA court orders filed

1/19/05, 1/25/05. On October 26, 2005, the Commonwealth filed a supplemental brief in

opposition to Appellant’s claim for relief under Atkins, but before the Atkins issue was

further addressed by the court, Appellant filed another supplement to his request for

post-conviction relief on January 27, 2006, spurred by the disclosure of the “Sagel

Lecture” notes, asserting that the Commonwealth had violated Batson v. Kentucky, 476

U.S. 79 (1986). Finally, on March 1, 2006, the PCRA court indicated that it would set a

hearing date on the Atkins issue “in view of” Commonwealth v. Miller, 585 Pa. 144, 888

A.2d 624 (2005)).61 Docket entry dated 3/1/06.

61 Atkins left to the individual states the responsibility of setting procedures to assess a
defendant's claim of intellectual disability. Atkins, 536 U.S. at 317, 122 S.Ct. at 2250.
In Miller, this Court established the prevailing standard for Atkins claims in
Pennsylvania: a defendant must show, by a preponderance of the
evidence, that he is “[intellectually disabled]” under the definitions provided
by the American Psychiatric Association (APA) or the American Association
of Mental Retardation (AAMR), which was renamed the American
Association on Intellectual and Developmental Difficulties (AAIDD). Miller,
585 Pa. at 155, 888 A.2d at 631. These clinical definitions are as follows:
The AAMR defines mental retardation as a “disability
characterized by significant limitations both in intellectual
functioning and in adaptive behavior as expressed in the
conceptual, social, and practical adaptive skills.” Mental
Retardation[: Definition, Classifications, and Systems of
Supports 1 (10th ed. 2002) (Mental Retardation) ] at 1. The
(continuedL)

[J-1-2015] - 79
 On September 29, 2006, however, Appellant authored a pro se letter to Judge

Jones requesting the court to disregard the Atkins claim filed by counsel. Pro se letter

filed 9/29/06. In doing so, the letter referenced the testing that had been performed by

Dr. Gerald Cooke indicating that Appellant had an IQ of 78, expressed Appellant’s

understanding that “[intellectual disability] is characterized by an IQ of less than 70,” and

suggested “for that reason the Atkins petition doesn’t apply to me.” Id. Without

acknowledging Appellant’s pro se letter to Judge Jones, Appellant’s PCRA counsel filed a

motion for a jury trial on the Atkins claim on December 13, 2006.

Appellant appeared before the court on January 23, 2007, and he read a prepared

statement that he was “absolutely not retarded” and reiterated that he did not wish to

pursue an Atkins claim. Though Appellant was sworn in prior to making the statement,

the court directed that he was not subject to questioning by either side, which prompted

the following objection before Appellant completed his prepared statement:

(Lcontinued)
American Psychiatric Association defines mental retardation
as “significantly subaverage intellectual functioning (an I.Q. of
approximately 70 or below) with onset before age 18 years
and concurrent deficits or impairments in adaptive
functioning.” [Diagnostic and Statistical Manual of Mental
Disorders (4th ed. 1992) (DSM–IV),] at 37. Thus, ... both
definitions of mental retardation incorporate three concepts:
1) limited intellectual functioning; 2) significant adaptive
limitations; and 3) age of onset.
Id. at 153, 888 A.2d at 629–30 (footnote omitted). In sum, a defendant
may establish “mental retardation” under either the AAMR (AAIDD) or
APA/DSM–IV definition by showing by a preponderance of the evidence
that he has limited intellectual functioning, significant adaptive limitations,
and the onset of his subaverage intellectual functioning began before he
turned 18 years old. Williams, 619 Pa. at 224, 61 A.3d at 982.
Commonweath v. Hackett, 626 Pa. 593-94, 99 A.3d 11, 26-27 (2014).

[J-1-2015] - 80
[COMMONWEALTH]: My objection is, if the defendant wrote a letter, it is
inappropriate for him to sit here and read it to the Court. Nobody has a
copy of it. I mean, if he wants to testify, he should testify and be
cross-examined. I don’t know of a procedure where he just writes a letter
that only he knows about and is going to sit here and read it to the Court.

THE COURT: I understand your concern and the basis for your
objection. At this juncture, I’m simply inviting Mr. Mason to apprise the
Court as to whether or not he wishes to pursue the issue of Atkins versus
Virginia. Mr. Mason, can you cut to the chase?

[APPELLANT]: Should I start from the beginning?

THE COURT: Why don’t you answer that question?

***

THE COURT: Now, Mr. Mason, do you understand the
question?

[APPELLANT]: Yes.

THE COURT: Can you give me an answer, yes or no?

[APPELLANT]: I wish not pursue [sic] the Atkins.

THE COURT: Now, can you tell me why?

[APPELLANT]: Should I -- can I finish reading my letter? It’s a
brief letter, Your Honor.

THE COURT: Yes, sir, go ahead.

[APPELLANT]: “I would like to thank you for giving me this
opportunity to put into words how I feel. Since I’m not a great verbal
communicator, I decided to express myself on paper.
“During the past two years, I begin [sic] to apply myself with tutoring
classes twice a week with an inmate, Mr. John Lesko. Mr. Lesko has been
approved by the prison administration to educate me with pay. At this
point, I wish not to waive any of my issues.
“I only wish to disregard the Atkins claim due to my ability and potential
to learn. Although I encountered a great deal of information, I’m very
aware that wouldn’t exempt me from having some complication and
difficulties in my life due to excessive drug abuse over the years.

[J-1-2015] - 81
 “However, I do acknowledge as well that I am a man that’s unlearned,
but I’m absolutely not retarded, and I pray this misrepresentation be
disregarded.”

THE COURT: Mr. Egan [PCRA counsel]?

[PCRA COUNSEL]: Your Honor, is the Court inviting questioning of
Mr. Mason at this time?

THE COURT: I think more I wanted a response rather than
questioning of Mr. Mason.

Id. at 17-21. This represented the full extent of Appellant’s involvement in the

competency colloquy.

Appellant’s counsel argued that Appellant did not have the right to pro se waive the

Atkins claim as this was a strategy decision that was instead to be made by appointed

counsel. Id. at 8-10, 21. The court directed the parties to brief whether a defendant

who articulates that he does not fall within the definition of intellectual disability has the

right to decide over the objection of counsel whether to pursue an Atkins claim, and the

Commonwealth and Appellant’s PCRA counsel submitted written argument on the issue

in March, 2007.

Meanwhile, PCRA counsel had received an Affidavit/Declaration from trial counsel

dated January 18, 2007, in which trial counsel opined that Appellant was “slow,” had a

“very limited” ability to assist in his defense, and did not “make the connection” that the

admission into evidence of certain pictures of Appellant and the victim would reflect on

Appellant’s own character, not just that of the victim. Affidavit/Declaration dated 1/18/07.

Believing that the Affidavit/Declaration set forth “indicia of incompetence,” counsel filed a

supplemental PCRA petition on Appellant’s behalf, asserting that Appellant is entitled to a

new trial because (1) the trial court erred in failing to sua sponte order a pre-trial

[J-1-2015] - 82
competency hearing, despite indicia that Appellant was incompetent; (2) trial counsel was

ineffective for failing to request a competency hearing; and (3) Appellant was tried while

incompetent. Supplemental PCRA petition filed 5/11/07.62 However, the supplemental

PCRA petition did not raise appellate counsel’s ineffectiveness for failing to present this

instance of trial counsel’s ineffectiveness on direct appeal.

The parties reappeared before the court on June 12, 2007, on the issue of whether

Appellant had the right to waive his Atkins claim over the objection of counsel. At the

outset, PCRA counsel reported that trial counsel had provided an affidavit expressing his

doubts about Appellant’s ability to comprehend matters during the representation, which

observation, PCRA counsel believed, was also “relevant to the Atkins claim” raised

before Judge Jones. N.T. 6/12/07 at 4. After a momentary exchange confirmed that

there had been no competency evaluation conducted prior to Appellant’s January, 2007,

appearance before the PCRA court, Judge Jones granted Appellant’s pro se request to

withdraw the Atkins claim, based on the judge’s determination that “Appellant exhibited a

level of competency sufficient to demonstrate that he has the ability and had the ability on

the day he testified to knowingly and intelligently waive his right to an Atkins claim, and

moreover, he did so.” N.T. 6/12/07 at 5-6.63 Thus, the PCRA court did not reach the

62 A defendant is presumed competent to stand trial, and to prove incompetence, he
must establish that he was either unable to understand the nature of the proceedings or
unable participate in his own defense. Commonwealth v. Smith, 609 Pa. 605, 650-651,
17 A.3d 873, 899-900 (2011).
63 Judge Jones eventually addressed the failure to hold a hearing on counsel’s

supplemental PCRA petition addressing Appellant’s competence to stand trial, after the
Commonwealth responded to the issue in a motion to dismiss citing various portions of
the record purportedly demonstrating Appellant’s competence to stand trial. Motion filed
12/14/07 (citing N.T. 2/13/96 at 55-121 [Appellant’s trial testimony]; N.T. 2/14/96 at 9-11
(continuedL)

[J-1-2015] - 83
merits of the Atkins issue raised by counsel, but instead went on to address the remainder

of Appellant’s post-conviction claims.64

Following the eventual denial of Appellant’s request for post-conviction relief,

Appellant’s Rule 1925(b) statement indicated that he would be raising the following two

questions with regard to the Atkins issue:

12. Is Petitioner constitutionally ineligible for the death penalty due to
intellectual disability under Atkins v. Virginia in violation of Petitioner’s rights
under the Fifth, Sixth, Eight, and Fourteenth Amendments to the United
States Constitution and Article I, Sections 9, 13 and 14 of the Pennsylvania
Constitution?
L
19. Did the PCRA court err by ruling that the constitutional exemption
from the death penalty due to intellectual disability can be waived and did
the court further err by accepting the waiver without permitting or
conducting inquiry into, and holding a hearing on, Petitioner’s competency
and capacity to waive important rights, and was Petitioner’s waiver invalid
because the waiver was not knowing, intelligent and voluntary and because
he lacked the capacity to waive important rights, in violation of Petitioner’s
rights under the Fifth, Sixth, Eight, and Fourteenth Amendments to the
Unites States Constitution and Article I, Sections 9, 13 and 14 of the
Pennsylvania Constitution?

Pa.R.A.P. 1925(b) Statement filed 2/20/13 at 3, 5.

Responding to the position set forth in Appellant’s Rule 1925(b) statement that

Judge Jones erred in concluding that an Atkins claim may be waived, Judge Sarmina

opines that while the United States Constitution requires that our Commonwealth provide

(Lcontinued)
[colloquy of Appellant prior to resting his case]; N.T. 2/20/96 at 6-7 [colloquy of Appellant
prior to formal imposition of sentence]; N.T. 2/16/96 at 854-85 [Dr. Tepper’s testimony on
cross-examination that Appellant was not incompetent]). Thereafter, on February 28,
2008, Judge Jones ruled that trial counsel was not ineffective for failing to request a
pre-trial competency hearing.
64 When this case was later taken up by Judge Sarmina, Appellant indicated to her that
the Atkins issue had been disposed of by Judge Jones, and Appellant reiterated his
position that Atkins did not apply to him and expressed his agreement with Judge Jones’
ruling permitting him to waive the Atkins claim. N.T. 2/13/12 at 12-13.

[J-1-2015] - 84
capital defendants the ability to advance a defense ofintellectual disability, a defendant

may choose to waive an Atkins claim so long as that choice is knowing, intelligent and

voluntary. She observes that capital defendants may elect not to pursue courses of

action which could potentially mitigate a sentence of death to a sentence of life

imprisonment without the possibility of parole. Pa.R.A.P. 1925(a) opinion at 52-53 (citing

Puksar, 597 Pa. at 275, 951 A.2d at 288 (holding that a capital defendant may knowingly,

intelligently and voluntarily waive the presentation of mitigation evidence);

Commonwealth v. Sam, 535 Pa. 350, 368, 635 A.2d 603, 611-12 (1993) (“A criminal

defendant has the right to decide whether mitigating evidence will be presented on his

behalf. We will not remove that right and compel admission of such evidence.")). She

finds that “[j]ust as a capital defendant may choose not to present mitigating

circumstances at a penalty-phase proceeding, a capital defendant may choose not to

present an Atkins claim.” Id. at 53.

Judge Sarmina quotes this Court’s explanation that:

although the Atkins decision recognizes a constitutional right, once a state
provides the accused access to procedures for making an [intellectual
disability] evaluation, there is no due process requirement that the
Commonwealth prove a negative, and assume the burden of vindicating the
defendant’s constitutional right by persuading the trier of fact that the
defendant is not [intellectually disabled] and is eligible for execution.

Id. (citing Commonwealth v. Sanchez, 614 Pa. 1, 71, 36 A.3d 24, 66 (2011)). Judge

Sarmina thus opines:

The Constitution requires that our Commonwealth provide capital
defendants the ability to advance a defense of [intellectual disability]. A
capital defendant may elect to pursue that defense, or may elect not to do
so. The decision not to avail oneself of an Atkins claim, like other claims
rooted in constitutional protections for which the defendant bears the
burden of proof by a preponderance of the evidence, may be made by the
accused himself.

[J-1-2015] - 85
Id. (citing Oregon v. Guzek, 546 U.S. 517, 526, 126 S.Ct. 1226, 1232-33, 163 L.Ed.2d

1112 (2006); Puksar, 597 Pa. at 275-76, 951 A.2d at 288). Judge Sarmina further posits

that “[i]n Pennsylvania, a capital defendant must affirmatively pursue an Atkins claim;

whether the failure to pursue the claim is borne out of a lack of evidence or a lack of

interest is immaterial.” Id. at 54.

Responding to the position set forth in Appellant’s Rule 1925(b) statement that

Appellant’s waiver was invalid because it was not knowing, intelligent and voluntary and

because he lacked the capacity to waive the right, Judge Sarmina acknowledges that in

light of the consequences of a decision not to pursue an Atkins claim, such a choice must

be made knowingly, intelligently and voluntarily, and she suggests that only a competent

defendant should be permitted to waive a constitutional defense. Id. (citing Puksar, 951

A.2d at 288, 288 n.10). Regarding the determination of competency, Judge Sarmina

concludes:

The competency standard is the same whether waiving the right to present
mitigating evidence, the right to counsel, or the right to present an Atkins
claim: the defendant must have the ability to consult with counsel with a
reasonable degree of understanding and have a rational understanding of
the nature of the proceedings. Id. "The focus of a competency inquiry is
the defendant’s mental capacity; the question is whether he has the ability
to understand the proceedings."

Id. (citing Commonwealth v. Starr, 541 Pa. 564, 589-90, 664 A.2d 1326, 1339 (1995))

(italics in original).

With regard to the circumstances at hand, Judge Sarmina acknowledges

Appellant’s initial counseled request to amend his PCRA petition to include the Atkins

claim, Appellant’s subsequent pro se indication that he no longer wished to pursue the

[J-1-2015] - 86
claim, and Judge Jones’ eventual colloquy of Appellant and grant of permission to waive

the claim. Id.

Prior to appearing in open court, petitioner recognized that he is "not a great
verbal communicator," so he wrote a short statement for the court.
Petitioner exerted time and effort to ensure that his desire to waive the
Atkins claim would be understood. As soon as Judge Jones permitted him
an opportunity, petitioner began reading his prepared statement. N.T.
6/12/2007 at 16. When Judge Jones interrupted in an effort to "cut to the
chase," petitioner stated that he understood Judge Jones question and
answered, "I wish not to pursue the Atkins." Id. at 18-19. By promptly
responding to Judge Jones' questions in a succinct fashion, and then
explaining his reasons for waiving the Atkins claim more elaborately
thereafter, petitioner evidenced an awareness of his purpose in court and
the ability to understand the proceedings.

Id. Judge Sarmina opines that based on the circumstances, it was well within Judge

Jones’ discretion to determine that Appellant “possessed the ‘level of competency

sufficient [to] demonstrate that he has the ability and had the ability on the day he testified

to knowingly and intelligently waive his right to an Atkins claim and, moreover, he did so.’”

Id. at 54-55 (citing N.T. 6/12/2007 at 6).

Judge Sarmina acknowledges that Appellant’s Rule 1925(b) statement also

asserted that Judge Jones’ colloquy failed to establish that petitioner knowingly,

intelligently and voluntarily waived his right to pursue an Atkins claim, Id. at 55, n. 26, but

she discerns that this issue has been waived because counsel did not raise the

sufficiency of that colloquy before the PCRA court, and “claims cannot be raised for the

first time on appeal.” Id. (citing Pa.R.A.P. 302(a) ("Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.")). Pertinent to Judge

Sarmina’s conclusion in this regard, she observed that she had given the parties the

opportunity to address Judge Jones’ June 12, 2007 decision to allow Appellant to waive

the Atkins claim during the February 13, 2012 oral argument conducted following the

[J-1-2015] - 87
October 2011 evidentiary hearing on the penalty phase mitigation issue. Id. at 52, n. 24

(citing N.T. 2/13/12 at 68).65

The brief filed before this Court on Appellant’s behalf argues that Appellant is

ineligible for the death penalty under Atkins and he should not have been permitted to

“waive” the claim because: (A) Atkins created a non-waivable categorical bar to the

execution of the intellectually disabled; (B) the decision whether to pursue an Atkins claim

lies solely with counsel; (C) the “waiver” colloquy was inadequate; (D) a competency

hearing should have been held prior to the waiver; (E) the PCRA court abused its

discretion in permitting Appellant to “waive” the eighth amendment prohibition against

execution of the intellectually disabled; and (F) Appellant suffers from intellectual

disability. Additionally, it raises several allegations of error with regard to Judge

Sarmina’s Rule 1925(a) opinion.66

65 When the proceedings commenced on February 13, 2012, Appellant accurately
indicated to Judge Sarmina that Judge Jones disposed of the Atkins issue, and Appellant
reiterated his position that Atkins did not apply to him and expressed his agreement with
Judge Jones’ ruling permitting him to waive the Atkins claim. N.T. 2/13/12 at 12-13.
Following oral argument on the penalty phase mitigation issue, Judge Sarmina inquired of
counsel: “Do either of you want to comment on Mr. Mason’s comment that he is not
retarded?” Id. at 68. In response, Appellant’s counsel expressed his belief that whether
Appellant was intellectually disabled had not been legally determined because Appellant
was permitted to waive an Atkins hearing, and stated "It’s my view that that’s not
something we can actually waive and that’s something that may or may not be an issue
for appeal, but it’s certainly not at issue before this Court.” Id.
66 “Although it is counsel who advocate, we generally attribute arguments to the parties

whom they represent.” Commonwealth v. Sam, 597 Pa. 523, 571, 952 A.2d 565, 594
(2008). To do so with regard to the Atkins issue would be inaccurate, however, as from
the time Appellant delivered his September, 2006 pro se letter to Judge Jones, through
his comments to Judge Sarmina during the February 13, 2012 oral argument, Appellant
has consistently expressed his belief that Atkins does not apply to him and that he does
not wish to pursue the claim. Although the Rule 1925(b) statement and brief to this Court
filed by counsel on Appellant’s behalf reiterate counsels’ position that Atkins applies to
(continuedL)

[J-1-2015] - 88
 Counsel initially assert that the constitutional prohibition on the execution of

intellectually disabled persons is analogous to the prohibition on the execution of insane

persons, those who were under the age of 18 at the time the crime was committed, or

those who have not committed an intentional or recklessly indifferent murder, and is thus

absolute and cannot be voluntarily waived. Appellant’s brief at 63 (citing Kennedy v.

Louisiana, 554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d 525, (2008); Roper v. Simmons,

543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005); Tison v. Arizona, 481 U.S. 137, 107

S.Ct. 1676, 95 L.Ed.2d 127 (1987); Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91

L.Ed.2d 335 (1986)). Quoting Atkins that “[the United States Constitution] ‘places a

substantive restriction on the State's power to take the life’ of a [intellectually disabled]

offender,” Id. at 64 (citing Atkins, 536 U.S. at 321), counsel also cite Rogers v. State, 276

Ga. 67, 575 S.E.2d 879 (Ga. 2003), as holding that “a capital defendant may not waive an

Atkins claim where his mental capacity is challenged or otherwise appears to be in

question, and requiring an adjudication to determine eligibility for death.” Id. 67 In

(Lcontinued)
Appellant and that he should not be permitted to withdraw the claim, nothing in the Rule
1925(b) statement or brief suggest that Appellant has altered his position to the contrary.
Thus, with regard to this issue, we attribute the arguments presented by Appellant’s
counsel (“counsel”), separate and apart from the position taken by Appellant himself.
67 As the Rogers court explained:

In Georgia, the procedure to be followed in [determining if a defendant is
[intellectually disabled] depends upon the date of trial. For those
defendants tried after July 1, 1988, OCGA § 17-7-131 permits them to
contend that they were [intellectually disabled] at the time of the crime and
to present evidence of such [intellectual disability] to the fact finder. In
capital cases, the fact finder is then required to determine during the
guilt-innocence phase of trial whether the defendant is guilty but
[intellectually disabled]. OCGA § 17-7-131(j). Under this statutory
scheme, where the trier of fact makes a specific finding that the defendant is
(continuedL)

[J-1-2015] - 89
further support of their stance, counsel filed an application to file a “short supplemental

brief addressing supplemental authority” on June 18, 2014, following the United States

Supreme Court’s May 27, 2014 decision in Hall, supra, asserting that Hall supports the

contention that Atkins claims are non-waivable. Supplemental Brief filed 6/18/14 at 1.68

(Lcontinued)
[intellectually disabled], the defendant cannot be executed but must instead
be sentenced to life imprisonment.
Rogers, 276 Ga. at 68-69, 575 S.E.2d at 881 (footnote omitted). Rogers further
explained that:
A defendant tried prior to July 1, 1988, for whom no judicial determination
on [intellectual disability] will have been made, may choose to raise the
issue of his or her [intellectual disability] by filing a petition for habeas
corpus and presenting sufficient credible evidence, including at least one
expert diagnosis of mental retardation, to create a genuine issue
regarding[intellectual disability].
Id., 276 Ga. at 69, 575 S.E.2d at 881 (citation omitted). If the habeas corpus court
determines there is a genuine issue, the defendant will be entitled to a full evidentiary
hearing before a jury on the issue of intellectual disability(a so-called Fleming hearing).
Id.
Rogers specifically held that once Rogers chose to initiate habeas corpus
proceedings by filing a petition alleging he was intellectually disabled, and successfully
adduced sufficient credible evidence of such intellectual disability to authorize a full
evidentiary hearing on the issue of his intellectual disability, Rogers could not elect to
waive his right to that evidentiary hearing and it was error for the trial court permit him to
waive the right to the hearing. Id., 276 Ga. at 69-70, 575 S.E.2d at 882.
68 We hereby grant counsels’ “Application to File a Short Supplemental Brief Addressing

Supplemental Authority” as found in the United States Supreme Court’s decision in Hall,
supra. As we explained in Hackett,:
The 5–4 decision in Hall narrowed the authority of the states to define
intellectual disability, holding that states cannot rely on a fixed IQ test
number (in Hall, 70) as conclusive evidence of a defendant's intellectual
disability if that score falls within a certain range, i.e., “the test's
acknowledged and inherent margin of error”—meaning, in practical terms, if
IQ tests reveal an IQ of 75 or lower. L The Court thus held that the Eighth
Amendment requires states to permit a petitioner with such a demonstrated
IQ to present additional evidence of [intellectual disability], including
testimony regarding adaptive functioning deficits. Id. at 1998–99.
Hackett, 626 Pa. at 619, 99 A.3d at 42 (Castille, C.J., concurring)(citingHall).

[J-1-2015] - 90
The supplemental brief additionally asserted that Commonwealth v. Robinson, 623 Pa.

345, 381, 82 A.3d 998, 1019 (2013) demonstrates that this Court has “interpreted Atkins

as presenting a categorical, non-waivable bar to the execution of the intellectually

disabled.” Id. at 2.69

In addition to contending that an Atkins claim may not be voluntarily waived,

counsel propose that the decision whether to pursue an Atkins defense “lies solely with

counsel.” Id. at 64. They acknowledge that a defendant may decide, against counsel’s

advice, “whether to plead guilty, waive a jury, testify in his or her own behalf, or take an

appeal,” but suggest that capital defense counsel should be permitted to choose to

pursue an Atkins claim without obtaining the defendant’s consent. Id. at 64 (citing

Florida v. Nixon, 543 U.S. 175, 187, 125 S.Ct. 555, 160 L.Ed.2d 565 (2004) (quoting

Taylor v. Illinois, 484 U.S. 400, 417-18, 108 S.Ct. at 657 (1988); Jones v. Barnes, 463

U.S. 745, 751, 103 L.Ed.2d 3308, 3312 (1983)).70 Here, counsel observe, since the goal

69 The appellant in Robinson unsuccessfully asked this Court to extend Atkins individuals
with severe brain damage. As cited by Appellant, we noted in dicta that:
This Court has broadly stated that questions relating to the legality of
sentencing are not waivable. Commonwealth v. Aponte, 579 Pa. 246, 855
A.2d 800, 802 n. 1 (2004). Additionally, the Atkins Court explained that
“the [United States] Constitution ‘places a substantive restriction on the
State's power to take the life’ of a[n] [intellectually disabled] offender,” 536
U.S. at 321, 122 S.Ct. 2242, leaving little doubt that actual Atkins claims
implicate the legality of sentencing.
Id.
70 Nixon held that counsel's failure to obtain the defendant’s express consent to a

strategy of conceding guilt at the guilt phase of a capital trial did not automatically render
counsel's performance deficient where defendant had remained unresponsive to
counsel’s attempts to explain the strategy. Instead, the High Court held, “if counsel's
strategy, given the evidence bearing on the defendant's guilt, satisfies the Strickland
standard, that is the end of the matter; no tenable claim of ineffective assistance would
remain.” Nixon, 543 U.S. at 192, 125 S.Ct. at 563.

[J-1-2015] - 91
of both Appellant and counsel was to obtain relief from Appellant’s convictions and death

sentence, it was up to counsel to determine how best to achieve that goal. Id. at 65.

They additionally assert that by allowing Appellant to withdraw the Atkins claim over

counsels’ objection, the PCRA court erroneously permitted hybridized representation.

Id. at 65, 65 n. 29 (citing Commonwealth v. Ellis, 534 Pa. 176, 180, 626 A.2d 1137, 1139

(1993) (“no constitutional right to hybrid representation either at trial or on appeal”).

Couching Appellant’s efforts to end the pursuit of the Atkins claim as “an effort to

control and dictate the course of litigation of his case,” counsel next assert that Judge

Jones should have determined that Appellant’s mental disabilities precluded him from

representing himself and prevented him from “overrul[ing] counsel’s reasoned judgment”

as to the Atkins claim. Id. at 70 (citing Indiana v. Edwards, 554 U.S. 164, 175-176, 128

S.Ct. 2379, 2386-87, 171 L.Ed.2d 345 (2008) and Commonwealth v. El, 602 Pa. 126, 134

n. 2, 977 A.2d 1158, 1163 n.2 (2009)).71

71 “In [Edwards], the United States Supreme Court considered whether there was a
legally meaningful distinction between competency to stand trial and competency to
represent oneself at trial.” Spotz, 610 Pa. at 56, 18 A.3d at 266. Although noting that
“[t]he issue in Indiana v. Edwards is not relevant in this appeal,” this Court explained in El,
supra, that:
[Edwards] clarified the Faretta standard as applied to criminal defendants
who suffer from some form of mental illness, but are nonetheless competent
to stand trial. Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379, 171
L.Ed.2d 345 (2008). The question was whether the trial judge could deny a
defendant's request to proceed pro se where the judge determined that the
defendant's mental illness (schizophrenia), while not affecting his
competency to stand trial, nonetheless precluded him from adequately
representing himself. The Court held that the judge had such authority,
concluding that “the Constitution permits judges to take realistic account of
the particular defendant's mental capacities by asking whether a defendant
who seeks to conduct his own defense at trial is mentally competent to do
so. States [may] insist upon representation by counsel for those
(continuedL)

[J-1-2015] - 92
 Counsel further assert that Appellant’s full scale IQ result of 71 is within the range

of “intellectual disability.” Id. at 70 (citing N.T. 2/16/96; Commonwealth v. Gibson, 592

Pa. 411, 416, 925 A.2d 167, 170 (2007)).72 They indicate that Gibson involved a capital

defendant who “obtained Atkins relief with an IQ score of 74.” Id.73 Here, citing to the

testimony of Larry Lawhorn, NT 2/16/1996, 43-52; the testimony of Thelma Mason, NT

2/16/1996, 54-64; the testimony of Dr. Allan Tepper, NT 2/16/96, 72-104; the testimony of

Dr. Gerald Cooke NT 10/26/11, 14-143; the testimony of Dr. Robert Sadoff,

10/24/2011,13-85; the testimony of Dr. Barry Gordon, NT 10/27/11, 11-155; and the

testimony of Dr. Richard Restak NT 10/28/11, 3-48, counsel assert that Appellant

suffered from adaptive deficits in at least five of the eleven skill areas set forth in the

DSM-IV (functional academics, social and interpersonal skills, self-direction, selfcare,

and safety), and that Appellant also meets the American Association on Intellectual and

(Lcontinued)
competent enough to stand trial but who still suffer from severe mental
illness to the point where they are not competent to conduct trial
proceedings by themselves.” Id. at ___, 128 S.Ct. at 2387-88.
El, 602 Pa. at 135 n. 2, 977 A.2d at 1163 n. 2. Edwards, a diagnosed schizophrenic, had
a lengthy record of psychiatric reports which indicated active mental illness interspersed
with periods of competence.
72 Counsel acknowledge that “Dr. Cooke’s later testing showed a full scale IQ of 78, but

he noted Appellant tested in the [intellectually disabled] range on key subtests.”
Appellant’s brief at 71, n. 30 (citing NT 10/26/11, 22-23 (wherein, Dr. Cooke testified that
Appellant scored a 68 and a 67 in the subtests for immediate verbal memory and delayed
verbal memory)).
73 In Gibson, the appellant’s IQ was within the 70 to 75 range, but the Court noted that

both parties agreed that depending upon the degree of adaptive deficits it is possible for a
person with an IQ ranging from 70 to 75 to suffer from intellectual disability, and that in the
appellant’s case the testimony of his expert witnesses was consistent with the PCRA
court's understanding that such deficits were on a scale supporting the finding of
intellectual disability, thus the Court affirmed the PCRA court’s determination that the
appellant was intellectually disabled. Gibson, 592 Pa. at 417-418, 925 A.2d at 171.

[J-1-2015] - 93
Developmental Disabilities standards, which require that deficits be demonstrated in one

of three broad areas – conceptual, social, and practical. Id. at 71.

Counsel relatedly assert that the PCRA court erred in (1) likening the waiver of an

Atkins claim to the waiver of the presentation of mitigating evidence because Atkins

“imposes a categorical, substantive bar to the execution of the mentally disabled, and is

thus nonwaivable,” Id. (no citation to authority provided), (2) finding that it was within

Judge Jones’ discretion to “find the waiver to be adequate,” Id. at 71-72, and (3) failing to

apply controlling United States Supreme Court law on the requirements and adequacy of

waiver of important rights. Id. at 72 (not citation to authority provided).

Counsel next assert that even if an Atkins claim may be waived, the waiver

colloquy here was inadequate. Id. at 65. Specifically, they complain that Appellant was

not advised of the legal standards, applicable burdens, or the consequences of his

“waiver,” nor was counsel permitted to question Appellant, thus there is nothing in the

record from which a reviewing court could conclude that Appellant’s decision was

knowing, voluntary, and intelligent. Id. at 66.

Counsel additionally insist that “[a] competency hearing should have been held

prior to the waiver,” Appellant’s brief at 68, but argues in support thereof that a defendant

has a right not to be tried while incompetent and a corresponding right to a hearing on

competence. Id. (citing Cooper v. Oklahoma, 517 U.S. 348, 354 n.4, 116 S.Ct. 1373 n.4,

1377, 134 L.Ed.2d 498, (1996) (Because the right not to be tried while incompetent is so

fundamental, the trial court must “protect [it] even if the defendant has failed to make a

timely request for a competency determination.”); Drope v. Missouri, 420 U.S. 162, 95

S.Ct. 896, 43 L.Ed.2d 103 (1975) (Where there are indications of incompetency, a

[J-1-2015] - 94
defendant has a substantive due process right not to be tried while incompetent); Pate v.

Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) (Where there are

indications of incompetency, a defendant has a procedural due process right to a hearing

on competence)). This argument goes to the issue of whether Appellant is entitled to

relief as the result of the failure to hold a hearing on his competence to stand trial. As

noted, this ground for relief was raised and addressed before Judge Jones separate from

the Atkins issue.

The Commonwealth counters that Judge Jones properly allowed Appellant to

withdraw the Atkins claim, and argues that even if he had deferred to counsel and denied

Appellant’s request to withdraw the claim, it would not have entitled Appellant to relief.

With regard to granting Appellant’s request to withdraw the Atkins claim, the

Commonwealth observes that so long as the decision is knowing, intelligent and

voluntary, a defendant may properly direct his counsel not to present mitigating evidence

on his behalf during the sentencing proceedings, even mitigating evidence concerning

the defendant’s mental health. Commonwealth’s brief at 72 (citing Commonwealth v.

Small, 602 Pa. 425, 467, 980 A.2d 549, 574-75 (2009)); Puksar, 597 Pa. at 276-277, 951

A.2d at 288; Rega, 593 Pa. at 710-11, 933 A.2d at 1026-28; Commonwealth v. Birdsong,

538 Pa. 587, 602-03, 650 A.2d 26, 33-34 (1994); Sam, 535 Pa. at 368-69, 635 A.2d at

611-12. The Commonwealth further notes that this Court has concluded that ethical

rules "do[ ] not furnish counsel with the right to override what the client considers to be in

his best interest." Id. (citing Commonwealth v. Cross, 535 Pa. 38, 44, 634 A.2d 173, 176

(1994)).

[J-1-2015] - 95
 The Commonwealth urges that such precedent applies equally here. Although

recognizing that Atkins created a new defense to the imposition of a death sentence, the

Commonwealth emphasizes that the defendant still carries the burden of proof, such that

the defense must be litigated only if the defendant first proffers evidence to support it. Id.

(citing Commonwealth v. Sanchez, 614 Pa. 1, 65 n. 19, 36 A.3d 24, 62-63 & n. 19 (2011)).

Thus, the Commonwealth declares, the PCRA court here correctly concluded that, as

with the presentation of mitigation evidence, “counsel may not override their client's

decision and proceed with that defense.” Id.

Noting counsels’ reliance on Nixon to support the contention that counsel must be

permitted to override a defendant’s directions, the Commonwealth argues that Nixon is

factually dissimilar, and disputes that its holding is helpful to counsels’ position, arguing

that it instead involved a defendant (unlike Appellant here) who neither approved nor

rejected counsel’s tactic, and that it held only that "[w]hen counsel informs the defendant

of the strategy counsel believes to be in the defendant's best interest and the defendant

is unresponsive, counsel's strategic choice is not impeded by any blanket rule

demanding the defendant's explicit consent." Id. at 73 (citing Nixon, 543 U.S. at 192,

125 S.Ct. at 563 (emphasis in brief)).

The Commonwealth also disputes counsels’ suggestion that Appellant was

precluded from directing counsel to eschew the Atkins claim because he did not disagree

with the objectives of the litigation and had not waived counsel altogether. To the

contrary, the Commonwealth asserts, a defendant may direct counsel not to proceed with

specific lines of defense without waiving counsel or declining to challenge imposition of a

capital sentence. Id. at 73 (citing Rega, 593 Pa. at 710-11, 933 A.2d at 1026-28;

[J-1-2015] - 96
Birdsong, 538 Pa. at 602, 650 A.2d at 33-34). Likewise the Commonwealth disputes that

this is a matter of hybrid representation, as Appellant did not request to file his own briefs,

present witnesses, or argue portions of the case, but instead simply directed his

representatives not to pursue, in his name, a course of action he deemed objectionable.

Id.

The Commonwealth acknowledges counsels’ assertion that Atkins adopted a

categorical bar that "cannot be voluntarily waived," but the Commonwealth discerns that

this argument is misguided because the question here is not one of waiver but is instead

“whether a defendant may have the ultimate say on whether to pursue a particular line of

defense.” Id. at 74. In so arguing, the Commonwealth emphasizes that “[p]lainly, it

would violate the Eighth Amendment to execute an offender unless a jury had been given

an opportunity to consider mitigating evidence,” Id. (citing Guzek, 546 U.S. at 526, 126

S.Ct. at 1232) but “[t]his Court, however, has held that a defendant may instruct his

counsel not to present such evidence.” Thus, the Commonwealth opines, Appellant

here was entitled to decide whether to present evidence to the lower court to establish

that he was intellectually disabled. Id.

Even if Appellant’s decision is considered “waiver,” as opposed to voluntary

withdrawal, the Commonwealth maintains that constitutional rights, including under the

Eighth Amendment, may be waived. Id. at 74 (citing Stewart v. LaGrand, 526 U.S. 115,

119 S.Ct. 1018, 143 L.Ed.2d 96 (1999) (defendant waived constitutional challenge to

method of execution); Commonwealth v. Patterson, 625 Pa. 104, 144, 91 A.3d 55, 79

(2013) (defendant waived claim that death penalty was unconstitutional as applied to

him)). The Commonwealth points out that this Court -- like courts in other jurisdictions --

[J-1-2015] - 97
has in fact held an Atkins claim waived. Id. (citing Steele, 599 Pa. at 380, 961 A.2d at

808-09; State v. Frazier, 873 N.E.2d 1263, 1291 (Oh. 2007); Bowling v. Commonwealth,

163 S.W.3d 361, 371-72 (Ky. 2005); Winston v. Commonwealth, 604 S.E.2d 21, 51 (Va.

2004)). Indeed, the Commonwealth opines, “deeming an Atkins claim unwaivable would

eviscerate the procedures this Court has adopted for presenting such claims. Id. (citing

Sanchez, supra).74

The Commonwealth continues to dispute counsels’ contention that an Atkins claim

cannot be “waived,” discerning that:

Atkins claims are fundamentally different than the other "categorical bars"
counsel baldly assert cannot be "voluntarily waived." (Initial Brief of
Appellant, 63). As this Court has observed, "[t]he fundamental query in
Atkins differs in kind from that in a case such as Roper v. Simmons, 543
U.S. 551 ... (2005), which ties Eighth Amendment death ineligibility to an
objective mathematical measure, specifically, the defendant's age."
DeJesus, 58 A.3d at 85. Unlike proof of age, determining whether one is
intellectually disabled is "often highly subjective." Id. Moreover, the
defense typically requires substantial evidence, and must be presented to a
jury (at least in trials after Atkins was decided). Sanchez, 36 A.3d at 62-63.
Attempting to prove intellectual disability is thus more akin to presentation
of mitigation evidence or other trial defenses.

Id. at 75. The Commonwealth also distinguishes claims of incompetency to be executed

and the procedures applicable to those claims:

Unlike intellectual disability, a claim of incompetency to be executed
"presumably ripens only after a death warrant has issued."
Commonwealth v. Banks, 29 A.3d 1129, 1134 (Pa. 2011). Moreover,
unlike Atkins claimants, any offender with a meritorious incompetency claim
would also presumably be incompetent to forego it. See Commonwealth v.
Heidnik, 720 A.2d 1016, 1020 (Pa. 1998) ("it makes no sense" to inquire
whether a condemned prisoner is competent to forego raising a claim of
incompetency). Given the differences in the nature of the claims, and the

74 The Commonwealth additionally dismisses counsels’ reliance on Hall, observing that
Hall “concerned the definition of intellectual disability. It did not address whether a
defendant may decline to claim he has that condition.” Commonwealth’s brief at 75.

[J-1-2015] - 98
 timing in which they must be brought, this Court has held that procedures
for adjudicating competency to be executed are "inapposite" for Atkins
claims. Sanchez, 36 A.3d at 56 n.15.

Id. at 75-76.

Turning to counsel’s claim that the colloquy of Appellant was inadequate, the

Commonwealth echoes Judge Sarmina’s conclusion that because counsel raises this

issue for the first time on appeal, counsel has waived that challenge as a ground for relief.

Id. at 76 (citing Rule 1925(a) opinion at 55, n.26); Pa.R.A.P. 302(a); Fletcher, 604 Pa.at

524, 986 A.2d at 778; Puksar, 597 Pa. at 275, 951 A.2d at 288).

Even if preserved, the Commonwealth asserts, the allegation is meritless, as the

circumstances surrounding Appellant’s request to withdraw the Atkins claim and the

court’s decision to grant that request support a determination that Appellant’s decision

was knowing and intelligent. Id. at 76-77 (citing N.T. 6/12/07 at 6). The Commonwealth

acknowledges counsels’ effort to analogize these circumstances to cases involving guilty

pleas and the waiver of trial counsel, but the Commonwealth contends that Appellant’s

decision here is more closely akin to the decision to refrain from presenting mitigating

evidence, and it notes that there is no “constitutional requirement of or right to” a colloquy

before waiving mitigating evidence. Id. at 77 (citing Puksar, 597 Pa. at 275, n. 11, 951

A.2d at 288 n.11). The Commonwealth maintains that even in circumstances where a

colloquy is required, a defective colloquy does not, by itself, establish that the waiver was

unknowing or involuntary. Id. (citing Commonwealth v. Mallory, 596 Pa. 172, 189, 941

A.2d 686, 697 (2008); Spotz, 610 Pa. at 50-51, 18 A.3d at 263. Thus, the

Commonwealth reasons, even assuming counsel had preserved an objection to the

manner in which Appellant was permitted to withdraw the Atkins claim, any contention

[J-1-2015] - 99
that Appellant’s withdrawal was rendered involuntary or unknowing by the lack of a more

detailed colloquy is meritless. Id.

The Commonwealth also assails as waived counsel’s complaint that a

competency hearing was required, observing that counsel never requested such a

hearing. Id. at 77-78 (citing Fletcher, 986 A.2d at 778 & n.24 (defendant waived claim of

incompetence to waive counsel for post-trial motions)). Additionally, the Commonwealth

suggests that even if a hearing had been requested it would not have been granted in

light of the questionable “indicia of incompetence” offered by counsel, counsels’ failure to

identify any expert opinion that Appellant is, in fact, incompetent, and Appellant’s

demeanor and actions over the lengthy course of the trial and the PCRA proceedings,

which did not cast doubt on Appellant’s competence. Id. at 78-79.

Also waived for failure to present it before the PCRA court, according to the

Commonwealth, is counsels’ claim under Edwards supra, that an otherwise competent

defendant may nonetheless be found to lack sufficient mental capacity to represent

himself. Id. at 80 (citing Pa. RA.P. 302(a)). Even if the allegation of error had been

preserved, the Commonwealth contends that Edwards held that the Constitution permits

states to impose greater limits on self-representation but did not require courts to apply a

heightened standard of competency for self-representation.

The Commonwealth lastly challenges counsels’ suggestion that an evidentiary

hearing is necessary to prove Appellant’s ineligibility under Atkins, emphasizing that the

Commonwealth’s expert opined that Appellant is merely of “low normal intelligence,” and

counsel have failed to present any expert opinion that Appellant is intellectually disabled.

[J-1-2015] - 100
Id. at 80-81 (noting that Dr. Tepper did not so opine, and that Dr. Cooke suggested that

Appellant had borderline intellectual functioning but not intellectual disability).

A PCRA Court "is not obliged to hold a hearing [on an Atkins claim]
unless an adequate proffer has been made concerning [intellectual
disability], and an issue of material fact is determined to be present." Porter,
35 A.3d at 25. Since counsel did not proffer any expert opinions identifying
defendant as intellectually disabled, the PCRA court would have been
justified in denying their claim even had defendant not withdrawn it.

Id. at 81.

From among the numerous claims raised herein, we address whether the PCRA

court erred when it permitted Appellant to override counsels’ decision to pursue an Atkins

hearing, as we find it dispositive. In so doing, we specifically determine the allocation of

decision-making authority over whether to raise an Atkins claim where a defendant has

sought counsel’s assistance in vacating his or her sentence of death.

This Court has recognized that Atkins did not “speak of a

constitutionally-mandated procedure for determining [intellectual disability] in capital

cases.” Commonwealth v. Sanchez, 614 Pa. 1, 48, 36 A.3d at 52 (2011). Rather,

Atkins specifically left “‘to the States the task of developing appropriate ways to enforce

the constitutional restriction upon their execution of sentences.’” Id. (quoting Atkins, 536

U.S. at 317, 122 S.Ct. 2242). With no legislative response forthcoming, this Court laid

out over a series of cases the process by which an intellectual disability challenge may be

brought. In so doing, we held in one matter that, analogous to determinations of criminal

competency and sanity, a defendant seeking Atkins relief bears the burden to prove

intellectual disability under the accepted definitions by a preponderance of the evidence.

Commonwealth v. Mitchell, 576 Pa. 258, 839 A.2d 202, 210 nn.7&8 (2003). It follows

[J-1-2015] - 101
that a defendant bears the burden of bringing the Atkins-based claim in the first place or

may instead elect to forego bringing an Atkins claim altogether.

In a similar context, we have recognized a capital defendant’s right to forego the

presentation of mitigation evidence and declined to hold counsel ineffective for complying

with a capital defendant's apparently knowing and intelligent insistence to that end.

Puksar, 597 Pa. at 282, 951 A.2d at 292.75 See also Sam, 535 Pa. at 368-69, 635 A.2d

at 611-12 (holding a capital defendant has a right to present mitigating evidence at

sentencing, 42 Pa.C.S. § 9711(a)(2), and he can waive that right; counsel has no duty to

introduce mitigating evidence where a defendant specifically directed otherwise.);

Tedford, 598 Pa. at 712-15, 960 A.2d at 44-46 (where capital defendant instructs trial

counsel not to offer mitigating evidence, counsel's failure to investigate mitigation

evidence not prejudicial). We have not had occasion, however, to decide whether

counsel may persist in seeking an Atkins hearing over a defendant’s objection where the

defendant has otherwise authorized counsel to challenge his or her sentence of death.

The United States Supreme Court has identified four decisions that are

fundamental to a criminal case, such that counsel may not choose a course of action with

respect to them until first obtaining the express consent of the defendant:

It is [ ] recognized that the accused has the ultimate authority to make
certain fundamental decisions regarding the case, as to whether to plead
guilty, waive a jury, testify in his or her own behalf, or take an appeal, see
Wainwright v. Sykes, 433 U.S. 72, 93 n. 1, 97 S.Ct. 2497, 2509 n. 1, 53
L.Ed.2d 594 (1977) (BURGER, C.J., concurring); ABA Standards for
Criminal Justice 4-5.2, 21-2.2 (2d ed. 1980). In addition, we have held

75 In Puksar, we noted that there had been no challenge to the sufficiency of the colloquy,
although the colloquy appeared on its face to have been thorough, enabling this Court to
presume the waiver was knowing, voluntary, and intelligent. Puksar at 292.

[J-1-2015] - 102
 that, with some limitations, a defendant may elect to act as his or her own
advocate, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d
562 (1975). Neither Anders nor any other decision of this Court suggests,
however, that the indigent defendant has a constitutional right to compel
appointed counsel to press nonfrivolous points requested by the client, if
counsel, as a matter of professional judgment, decides not to present those
points.

***

This Court's decision in Anders, far from giving support to the new per se
rule announced by the Court of Appeals [that a client may dictate all
nonfrivolous claims to be raised in an appeal]....recognized that the role of
the advocate “requires that he support his client's appeal to the best of his
ability.” 386 U.S., at 744, 87 S.Ct., at 1400. Here the appointed counsel
did just that [by declining defendant’s request to add nonfrivolous appellate
claims].

Jones v. Barnes, 463 U.S. 745, 751, 753-54 103 S. Ct. 3308, 3312, 3314, 77 L. Ed. 2d

987 (1983).

In over thirty years since its decision in Jones, the Supreme Court has not added to

this narrow list of fundamental rights the exercise or waiver of which are for the defendant,

ultimately, to decide, though it has elaborated on the issue somewhat:

An attorney undoubtedly has a duty to consult with the client regarding
“important decisions,” including questions of overarching defense strategy.
Strickland, 466 U.S., at 688, 104 S.Ct. 2052. That obligation, however,
does not require counsel to obtain the defendant's consent to “every tactical
decision.” Taylor v. Illinois, 484 U.S. 400, 417-418, 108 S.Ct. 646, 98
L.Ed.2d 798 (1988) (an attorney has authority to manage most aspects of
the defense without obtaining his client's approval). But certain decisions
regarding the exercise or waiver of basic trial rights are of such moment that
they cannot be made for the defendant by a surrogate. A defendant, this
Court affirmed, has “the ultimate authority” to determine “whether to plead
guilty, waive a jury, testify in his or her own behalf, or take an appeal.”
Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987
(1983); Wainwright v. Sykes, 433 U.S. 72, 93, n. 1, 97 S.Ct. 2497, 53
L.Ed.2d 594 (1977) (Burger, C. J., concurring). Concerning those
decisions, an attorney must both consult with the defendant and obtain
consent to the recommended course of action.

[J-1-2015] - 103
Nixon, 543 U.S. at 187, 125 S. Ct. at 560. Though the High Court recognized in Nixon

only a duty to consult with a defendant regarding “‘important decisions,’ which may

include questions of overarching defense strategy,” our jurisprudence has aligned itself

with the Pennsylvania Rules of Professional Conduct to recognize a duty to gain the

consent of a defendant regarding the overarching objective or purpose of a defense, and

leaves to counsel the authority to control the many aspects involving strategy and tactics

in achieving those objectives. See Sam, 535 Pa. at 367-69, 635 A.2d at 611-12 (relying

on Rule 1.2 of the Pennsylvania Rules of Professional Conduct wherein it provides that “a

lawyer shall abide by a client’s decisions concerning the objectives of representation”).76

In the collateral challenge brought before the PCRA court below, it was the

overarching objective of Appellant to obtain an order vacating judgment of capital

sentence. Just one from among the multiple claims counsel set forth to accomplish this

objective was an Atkins claim, and, so, counsel posited that prima facie evidence of

Appellant's intellectual disability necessitated an evidentiary hearing to determine

whether Appellant was protected under the Eighth Amendment's prohibition against the

execution of the intellectually disabled. Record evidence of Appellant's IQ score of 71 as

a child, his placement in special classes in elementary school, his adaptive challenges as

described by family and trial counsel, and the opinions of Dr. Tepper based on his most

76Rule 1.2 provides in pertinent part:
(a) A lawyer shall abide by a client’s decisions concerning the objectives of
representation, L and shall consult with the client as to the means by which
they are to be pursued. . . . In a criminal case, the lawyer shall abide by the
client’s decision, after consultation with the lawyer, as to a plea to be
entered, whether to waive jury trial and whether the client will testify.
Pa.R.P.C. 1.2.

[J-1-2015] - 104
recent post-conviction review of Appellant's history were offered to the PCRA court as

threshold support of this claim entitling Appellant to a full evidentiary hearing. Through

this claim and supporting proffer, counsels’ decision to advance an Atkins claim was not

in conflict with Appellant's PCRA objective but was, instead, an evidence-based strategy

offered in support of this objective.

The question remains as to whether Appellant’s decision over his Atkins rights

was, nevertheless, comparable to the fundamental decisions subject to a defendant’s

choice as described by the United States Supreme Court in Jones. The United States

Supreme Court has identified in the Eighth Amendment a fundamental, personal right in

the intellectually disabled to be insulated from capital punishment. Yet, here, there has

been no determination that Appellant is, in fact, intellectually disabled, and so the

constitutional right to avoid capital punishment on this basis has not yet attached in his

case. This fact, alone, distinguishes Appellant’s situation from those contemplated

under Jones, where the four fundamental rights recognized therein are clearly vested in a

defendant at the time he or she must decide whether to waive or exercise them. Here,

Appellant cannot be said to waive or exercise a conditional right where he has yet to

satisfy the condition upon which the right rests.

Rather than deciding on whether to waive or exercise a vested fundamental right,

Appellant and counsel were confronted with only the prospect of seeking an Atkins

hearing where a court could determine if Appellant indeed possessed a right to vacate his

capital sentence. Though surely important and potentially consequential, the decision to

pursue the hearing, itself, did not implicate the basic principles inherent in the concept of

[J-1-2015] - 105
a volitional defendant furnished with a set of rights with which to confront the

government’s case against him or her that were recognized in Jones.

For example, the decision of whether or not to plead guilty is “of such moment” as

described in Nixon, indeed, a defining moment for the defendant, who must either assert

his or her innocence of the charges or make an admission of guilt on the charges. In

either instance, the defendant’s act represents a basic, fundamental statement, be it one

of rejection or acceptance, on the government’s charge against the defendant.77 In

contrast, Appellant’s decision to forego an Atkins claim reflected no statement on his

77 The High Court’s decision in Nixon illustrates the judicially recognized, fundamental
right to plead guilty by differentiating it from the act of conceding guilt during a capital
case. Specifically, the High Court held that counsel was not obliged to obtain express
consent from a consistently aloof and non-responsive defendant before employing a
strategy that conceded guilt during the guilt phase of a capital trial. Central to this
holding was the distinction made between conceding guilt during trial and pleading guilty,
the latter of which is ultimately a decision for the defendant and always requires a
defendant’s express consent. Conceding guilt during the capital trial was an important
decision--even though the prospect of a conviction was already very high under the facts
of the case--for the obvious reason that it made a verdict of guilt and a subsequent death
phase proceeding all but a certainty. However, because the concession did not relieve
the prosecution of its burden to prove every element of the first-degree murder charge
beyond a reasonable doubt, kept intact defendant’s rights to a jury trial, to confront
witnesses against him, and to make evidentiary objections, allowed for at least the
theoretical possibility of jury rejection of the prosecution’s case, and would not severely
limit the grounds for appellate review, the chosen defense did not involve the loss of core,
fundamental rights that occurs with a guilty plea. As such, counsel was free to
implement this overarching defense strategy without gaining defendant’s express
consent, and the High Court reviewed counsel’s chosen strategy under the Strickland
rubric for ineffective assistance of counsel.
To be clear, Nixon was silent on whether the defendant could have, as a matter of
law, blocked counsel’s strategy had he openly objected to it, which is the issue we
address today. However, the Nixon discussion is instructive insofar as it did not consider
the highly important and consequential act of conceding guilt in a capital case to be the
functional equivalent of the fundamental right to plead guilty so as to condition counsel’s
authority on receipt of the defendant’s express consent.

[J-1-2015] - 106
position with respect to the sentence he faces. It certainly did not represent an

acceptance of his sentence or an admission that it is appropriate, for he has consistently

challenged his capital sentence.

Similarly, a counseled defendant has the fundamental right to demand that an

appeal be filed, but once it is filed, our jurisprudence has never recognized a right in the

appellant to command that counsel either raise or withhold a challenge to the legality of

sentence. The appellant's ultimate autonomy ends with the decision over whether to

take an appeal. If the appeal is taken, counsel may decide which nonfrivolous issues to

raise, including those pertaining to appellant's sentence. An appellant's recourse upon

impasse is to either seek to self-represent or wait to raise an ineffective assistance claim

on collateral appeal

Where, as here, the capital convict has expressed a desire to live and to challenge

his sentence of death, and counsel has raised an Atkins claim accordingly, the

defendant’s volitional interest in withdrawing the claim would seem to implicate only his

desire to avoid a categorization of “intellectually disabled” with which he does not identify

and which he appears to find embarrassing.78 As such, his decision to waive the right

cannot be “of such moment” to his case when it does not manifest a position vis a vis his

capital sentence. We mean not to diminish the importance of the defendant’s interest in

78 Where PCRA counsel seeks to advance an Atkins claim as was done here, we cannot
discern any potentially harmful consequence to the defense objective of sentence
vacation, any waiver or forfeit of a right--fundamental or otherwise, or any risk of incurring
an enhanced punishment. See Slobogin and Mashburn, The Criminal Defense Lawyer’s
Fiduciary Duty to Clients with Mental Disability, 68 Fordham L.Rev. 1581 (2000), in which
the authors argue that a client’s wishes regarding whether to present evidence of mental
abnormality as a defense or mitigating factor should generally control where he is
competent, but not where the position is the only one available, is very likely to prevail,
and its success would do more good than harm.

[J-1-2015] - 107
this regard, but we respectfully disagree that such an interest is “fundamental” to one’s

case as that term is contemplated in Jones and Nixon.

We note, additionally, that simply because the decision on whether to pursue an

Atkins hearing relates to a potential constitutional right in the defendant does not

necessarily elevate it to the rank of a fundamental decision within the Jones rubric on who

should decide. See, e.g., Wainwright, supra (holding defense counsel has ultimate

authority in deciding whether or not to advance defendant’s Fifth Amendment rights

through a motion seeking suppression of defendant’s statement allegedly obtained in

violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)).

Nor does the fact that a decision has importance and carries significant consequences

mean that it implicates rights judicially recognized as so personal and fundamental that

counsel implements it subject to defendant’s veto power. Indeed, numerous defense

decisions that have been held to lie within a counsel’s ultimate discretion are clearly of

great importance and consequence to a defendant’s case. See, e.g., United States v.

Chapman, 593 F.3d 365, 368 (4th Cir. 2010) (“[d]eciding whether to seek a mistrial (or

whether to accept or reject a mistrial offered by the trial court)” falls to counsel and not

defendant).

In Chapman, the federal circuit court of appeals left the decision over whether to

seek or accept an offer of mistrial to counsel in large part because the many technical

considerations to be identified and evaluated in such a matter bring the decision within

the realm of the strategic and tactical. Id. Deciding whether a defendant should pursue

the Eighth Amendment bar to capital punishment under Atkins likewise requires an

assessment of complex legal and highly technical diagnostic considerations. This fact

[J-1-2015] - 108
further distinguishes the Atkins hearing decision from the fundamental decisions

enumerated in Jones. Again, part of what qualifies the decisions regarding whether to

plead guilty, or attend trial, or testify in one’s defense as fundamental ones resting with

the defendant is the recognition that the defendant has an intimate knowledge and

understanding of the facts and circumstances of his or her underlying case that is crucial

to making such decisions. The same cannot be said for the defendant with a potentially

colorable Atkins claim, where the very question asking whether a defendant meets the

psychological criteria of “intellectually disabled” for purposes of the Eighth Amendment

turns on a complex, diagnostic inquiry into whether the defendant experienced onset of

both sub-average intellectual functioning as revealed by IQ tests and adaptive functioning

deficits based on standards and definitions adopted in the DSM and AAIDD before the

age of eighteen. In short, the intricacies and technical nature of the categorical

assessment at issue takes it outside the scope of basic, fundamental decisions subject to

a defendant’s control.

In light of the foregoing, we find that, where confronted with neither a basic,

fundamental decision concerning Appellant’s PCRA challenge nor disagreement

between counsel and Appellant with respect to the overarching objectives of the

challenge, the PCRA court erred in ruling that counsels’ authority to seek an Atkins

hearing was subject to Appellant’s veto. Furthermore, by acting directly on Appellant’s

pro se letter moving for the court to accept his waiver of the counseled Atkins claim, the

PCRA court impermissibly invited hybridized representation. What our jurisprudence

has consistently prohibited at both trial and appellate levels when strategic

disagreements arise between defendant and counsel is the option of hybrid

[J-1-2015] - 109
representation, where an otherwise represented defendant acts as de facto co-counsel

exercising control over parts of the defense. Ellis, supra (holding there is no right to

hybrid representation on appeal); cf Commonwealth v. Cooper, 611 Pa. 437, ___, 27

A.3d 994, 1000 (2011) (upholding court’s decision to acknowledge and give force to a pro

se filing from a counseled defendant where it dovetailed with counsel’s strategy and

where counsel ultimately adopted it). See also “Pennsylvania Rule of Appellate

Procedure 3304. Hybrid Representation.”79 The purpose behind the policy is to promote

efficiency in representation and to avoid conflicting strategies in the defense. Id. In the

event a represented defendant presents a pro se pleading, motion, or filing to the court,

therefore, the court shall not entertain it but shall, instead, forward it to counsel who may

then decide whether to act on the defendant’s concern. Ellis, supra.

The proper course for the PCRA court to have taken, therefore, would have been

to refrain from acting upon Appellant’s pro se letter and to forward it to counsel. By,

instead, unilaterally inviting Appellant to deliver a prepared statement in opposition to

counsel’s chosen course of representation, the court pitted defendant and counsel

against one another during the PCRA hearing.

79 Rule 3304. Hybrid Representation, provides:
Where a litigant is represented by an attorney before the Court and the
litigant submits for filing a petition, motion, brief or any other type of pleading
in the matter, it shall not be docketed but forwarded to counsel of record.

Note: The present rule is premised on Commonwealth v. Ellis, 534 Pa. 176,
626 A.2d 1137 (1993) and is to be distinguished from litigants who are pro
se in litigation.
Pa.R.A.P. 3304.

[J-1-2015] - 110
 We, therefore, remand this matter to the PCRA court for consideration of the

counseled Atkins-based claim and a determination as to whether it merits a full

evidentiary hearing consistent with Commonwealth v. Miller, 585 Pa. 144, 888 A.2d 624

(2005) (setting forth elements that appellant must prove by a preponderance of the

evidence in order to receive Atkins-based relief). If, on remand, Appellant continues to

express disagreement with counsels’ strategic choice, he may seek a hearing pursuant to

Commonwealth v. Grazier, 611 Pa. 437, 713 A.2d 81 (1998) as to his competency to

self-represent.80

Claim 8. Whether Appellant is Entitled to a New Sentencing Hearing
Because the Court Excused a Juror for Expressing only a
General Objection to the Death Penalty, in Violation of
Witherspoon v. Illinois and Whether Counsel were Ineffective
for Failing to Properly Litigate the Issue.

As with the second, third, and fifth issues raised by Appellant’s brief to this Court,

Appellant did not raise this allegation in his amended PCRA petition, but instead included

it in his “Petitioner’s Supplement and Response in Opposition to the Commonwealth’s

Motion to Dismiss and Reply in Support of his Motion for Relief pursuant to Atkins v.

Virginia,” filed on November 10, 2003. Also, as with those previous issues, the

Commonwealth asserts that this allegation has been waived for failure to include it in a

80 Of course, counsel may, in the alternative, decide that it would be best for Appellant
and his post-conviction interests if counsel were to adhere to his personal request to
discontinue the Atkins claim. Such adherence would not constitute ineffective
assistance unless Appellant is incompetent to make such a decision and the claim is
colorable. Confronted with any indicia of incompetence, counsel would be required to
request a full, comprehensive, and probing competency hearing in which the court may
ascertain whether Appellant understands the nature of the claim he is withdrawing and
the consequences of its withdrawal.

[J-1-2015] - 111
court approved supplement/amendment. Commonwealth’s brief at 82 (citing Reid, ___

Pa. at ___, 99 A.3d at 484; Elliott, 622 Pa. at 261, 80 A.3d at 430)).

Appellant does not point to the location in the record where the PCRA court

granted him permission to supplement/amend his request for post-conviction relief to

include this claim, and, as with the prior issues, he does not dispute that he did not obtain

permission to amend his PCRA petition but instead asserts via his February 2, 2015, reply

brief that he was prevented from curing this deficiency by the PCRA court’s failure to

provide proper Rule 909 notice. For the reasons expressed with regard to the previous

issues, we find that this issue has not been preserved for our review.

Claim 9. Whether Petitioner is Entitled to Relief Because of the
Prosecutor’s Improper Guilt and Penalty Phase Arguments and
Whether Counsel were Ineffective in Failing to Litigate these
Issues.

Appellant asserts that the prosecution sought to inflame the jury’s passions and

prejudices by “urging the jury to base its verdict on irrelevant factors” including his prior

bad acts and proclivity to commit crimes in the future, and, at the penalty hearing, by

resorting to a blatant call for vengeance. Appellant’s brief at 74. Our standard for

addressing allegations of prosecutorial misconduct is as follows:

It is well settled that, during the penalty phase, where the presumption of
innocence no longer applies, a prosecutor is afforded reasonable latitude
and may properly comment on the evidence with oratorical flair.
Comments by a prosecutor do not constitute reversible error unless their
unavoidable effect was to prejudice the jury, forming in their minds a fixed
bias and hostility toward the defendant such that they could not weigh the
evidence objectively and render a true penalty determination.
***
[R]emarks made by a prosecutor must be evaluated in the context in which
they occur. Furthermore [in closing argument], the prosecutor may fairly
respond to points made in the defense closing.
***

[J-1-2015] - 112
 [W]ithin reasonable bounds enforced by the trial court, a prosecutor may
employ oratorical license and impassioned argument in arguing for the
death penalty. While reference to irrelevant matters should be avoided, we
note that murder victims are not simply props or irrelevancies in a murder
prosecution, and innocuous references to victims and their families are not
necessarily prejudicial.

Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385, 408–09, 413, 415 (2003)

(internal citations and quotation marks omitted).

Specifically, during its guilt trial summation, the prosecution offered the following:

PROSECUTION: [A]nd how many prior incidents of nasty, malicious,
violent acts against this woman’s daughter do you have to hear about, non
PCP, angel dust, quote, unquote, induced before you recognize what this
case is all about?

DEFENSE: Objection.

COURT: Overruled.

N.T. 2/14/96 at 84. This guilt phase challenge, however, is waived, as Appellant’s PCRA

petition directed the present challenge only to his sentence. See Pa.R.A.P. 302(A)

(Issues not raised in the lower court are waived and cannot be raised for the first time on

appeal); Commonwealth v. Lambert, 568 Pa. 346, 361, 797 A.2d 232, 241 (2001).

Appellant also asserts that the prosecution’s summation in Appellant’s penalty trial

improperly directed the jury to show him no mercy in its deliberations:

PROSECUTION: [I]f there is really no doubt in your mind that the
aggravating circumstances in this case are all right here and there is no
mitigation in this brutal, senseless, horrible killing, then follow the law and
give Mr. Mason the same mercy that he gave Iona Jeffries.

2/16/96 at 114.

In Commonwealth v. Chmiel, 612 Pa. 333, 458, 30 A.3d 1111, 1184-85 (2011), this

Court upheld a virtually identical penalty-phase summation as an appropriate appeal for

the death penalty if the jury determines that aggravating circumstances outweigh

[J-1-2015] - 113
mitigating circumstances, because that is the only issue before the jury in a penalty

phase. Moreover, here, as in Chmiel, the trial court otherwise expressly cautioned the

jury in its instructions that neither passion nor prejudice should influence its decision one

way or the other. N.T. 2/16/96 at 140. Juries are presumed to follow such instructions.

Chmiel, supra. Accordingly, we discern no basis for relief on this claim.

Claim 10. Whether Appellant is Entitled to Discovery.

Appellant next submits that he is entitled under Pennsylvania Rule of Criminal

Procedure 902(E)(2)81 to discovery of the actual tapes of the 911 calls in this case, as, he

contends, the transcript he was provided indicated that portions of the tape were

“unreadable.” Appellant’s brief at 80. Discovery of the tapes, he argues, is needed to

substantiate the accuracy of the transcription. Appellant also contends that he is entitled

to discovery of copies of autopsy photographs to show a forensic expert, who “can make

determinations about whether a given homicide is a rage killing or not[.]” Appellant’s

brief at 81.

Initially, with respect to the request for autopsy photographs, Appellant fails to so

much as indicate whether trial counsel requested such purportedly critical evidence--let

alone direct us to where in the record we may find the request--nor does he address

whether counsel on direct appeal raised a claim asserting error with a trial court ruling

denying trial counsel’s request. As such, we know not whether the issue was waived or,

instead, previously preserved and litigated. If the former is true, and assuming for the

81Rule 902(E)(2) provides that “[o]n the first counseled petition in a death penalty case,
no discovery shall be permitted at any stage of the proceedings, except upon leave of
court after a showing of good cause.” Pa.R.Crim.P. 902(E)(2).

[J-1-2015] - 114
sake of argument that the evidence was, as Appellant now asserts, critical to a fair trial

and sentencing, then it was incumbent upon Appellant to couch the present claim within

an ineffective assistance of prior counsel claim. Having failed to do this, we find the

issue waived. See Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014 (2003)

(holding layered ineffectiveness claim is required to preserve an otherwise waived claim);

42 Pa.C.S. § 9544(b) (providing that an issue is waived under the PCRA “if the petitioner

could have raised it but failed to do so before trial, at trial, during unitary review, on appeal

or in a prior state postconviction proceeding.”) See also Commonwealth v. Ragan, 560

Pa. 106, 116, 743 A.2d 390, 395 (1999). If, in the alternative, the claim as raised herein

was previously litigated, then it is not cognizable under the PCRA. See 42 Pa.C.S. §§

9543(a)(3) and 9544(a)(2); Commonwealth v. Spotz, 610 Pa. at 45, 18 A.3d at 260.

Notwithstanding the claim preservation problem, we find that Appellant fails to

demonstrate that he made a showing of good cause for the PCRA court to grant the

discovery requests. In his argument, he provides neither a contextual nor a specific

explanation that was offered to the PCRA court as to what purpose may be served by

discovery of the actual 911 tapes, other than to say they may “provide him with

information about this case.” Appellant’s brief at 80. As for his request for autopsy

photos, he fails to develop his cursory claim that “[f]orensic experts can make

determinations [from autopsy photographs] about whether a given homicide is a rage

killing or not” in any meaningful way. Appellant’s brief at 81. No discussion ensues

regarding authority that may exist on this broad pronouncement, nor is there any attempt

to relate such prospective evidence to the balance of evidence admitted at trial on the

element of specific intent to kill. We find this undeveloped claim waived. See

[J-1-2015] - 115
Commonwealth v. Walter, 600 Pa. 392, 966 A.2d 560, 566 (2009) (holding claims waived

for failure to develop them).

Claim 11. Whether Appellant is Entitled to Relief From His
Conviction and Sentence Because of the Cumulative
Effect of the Errors.

Appellant contends, in this issue, that the cumulative effect of errors committed by

the trial court and trial counsel’s ineffectiveness prevented the jury from hearing important

evidence relevant to making its guilt phase and sentencing determinations. The

Commonwealth responds that this Court has previously stated that “no number of failed

claims may collectively attain merit if they could not do so individually.” Tedford, 960

A.2d at 56.

Where “multiple instances of deficient [trial counsel] performance are found, the

assessment of prejudice properly may be premised upon cumulation.” Commonwealth

v. Johnson, 600 Pa. 329, 345, 966 A.2d 523, 532 (2009). Because we have deemed all

of Appellant's ineffectiveness claims meritless and, thus, without prejudice, no cumulative

prejudicial effect could have attained. See Commonwealth v. Thomas, 615 Pa. 477,

500, 44 A.3d 12, 25 (2012). This claim fails.

Accordingly, with respect to issues one through six, and eight through eleven, we

affirm the order of the PCRA court. With respect to issue seven, we remand to the PCRA

court for further proceedings consistent with this decision. Jurisdiction is relinquished.

Mr. Justice Eakin did not participate in the decision of this case.

Mr. Justice Baer and Madame Justice Todd join the opinion.

Mr. Chief Justice Saylor files a concurring and dissenting opinion.

[J-1-2015] - 116