Commonwealth v. Robinson

Justice SAYLOR,

concurring.

I join Parts I and V of the majority opinion and concur in the result relative to the balance.

With respect to Parts II and III, concerning Appellant’s claim that his penalty counsel performed a deficient mitigation investigation and was ineffective in the presentation of the evidence which he did uncover, I support the majority’s decision to credit the post-conviction court’s finding that Appellant failed to establish sufficient prejudice. I have difficulty, however, to the extent the majority attempts to rationalize penalty counsel’s handling of the mitigation case, including the presentation of life-history witnesses and the opinion testimony from Dr. Sadoff. See, e.g., Majority Opinion, at 1018-19. As to the life-history aspect, the majority recognizes that the defense presentation was “paltry.” See id. at 1019. For my part, moreover, I fail to see that Dr. Sadoffs testimony added much “affirmatively helpful testimony” to the mix, id. at 1018, or that the psychiatrist’s testimony somehow converted a paltry case of life-history mitigation into a “full human picture of’ Appellant, id. at 1018. In point of fact, as I read the eight pages of transcript covering Dr. Sadoffs direct examination by penalty counsel, beyond reinforcing the Commonwealth’s position that Appellant is a sociopath, the psychiatrist did little more than confirm the unremarkable propositions that substance abuse can affect conduct and that anti-social behavior can be learned. See N.T., Nov. 9,1994, at 2575-83.

In other words, with or without Dr. Sa-doff, the mitigation presentation was paltry, and, in such circumstances, I question the reasonableness of presenting this sort of expert testimony and thus requiring an explanation for the defense’s own position that the defendant is a sociopath. See, e.g., Cummings v. Sec’y for Dep’t of Corr., 588 F.Sd 1331, 1368 (11th Cir.2009) (observing that “a diagnosis of antisocial personality disorder ... is not mitigating but *1023damaging”). On my review of this record, I see the absence of available strategic choices at the penalty stage as having more to do with the appointment, a month before trial, of a relatively new attorney with no experience in homicide cases as capital penalty counsel, See N.T., Dec. 17, 2010, at 21-22, 25, than with some inherent centrality to the defense mitigation case of the limited psychiatric testimony which counsel adduced.

Regarding Part IV, I support the majority’s holding that the post-conviction process is not generally a forum for the innovation of new legal principles. Nevertheless, I am circumspect as to whether this approach should be absolute, particularly since we are now deferring to the post-conviction forum claims which traditionally were considered on direct appeal. See Commonwealth v. Grant, 572 Pa. 48, 818 A.2d 726 (2002).