Commonwealth v. Saranchak

' SAYLOR, Justice,

concurring and dissenting.

While I agree with the majority’s decision not to award a new degree-of-guilt hearing, I respectfully differ with its reasoning and outcome concerning the claim of trial counsel’s ineffectiveness for failing to investigate and present mitigation evidence at the penalty hearing pertaining to Appellant’s life history and mental condition.

At the outset of its analysis of this claim, the majority finds it lacking in arguable merit, at least with regard to the life-history aspect. See Majority Opinion, op. at 509-11, 866 A.2d at 304. The majority, however, fails to address the PCRA court’s contrary conclusión, as follows:

[Bjased upon the information [trial counsel] did receive [from a psychiatrist’s report], he should have performed a more thorough investigation into possible mitigating circumstances. A more complete investigation would have revealed information that should have been presented to the jury. For that reason, we find arguable merit to [Appellant’s] claim, and we have found no reasonable basis for [trial counsel’s] failure to conduct a more thorough investigation.

Commonwealth v. Saranchak, No. 889, 889A-1993, slip op. at 16 (C.P. Schuylkill July 8, 2003).

Although the majority thus elects to supplant the factfinder’s decision on this point, it offers modest support for its decision in this regard, stating only, in general terms, that trial counsel sought out relevant information from Appellant’s *517mother and girlfriend. See Majority Opinion, slip op. at 16. The record, however, gives very little indication concerning the depth of the investigation in this regard. See, e.g., N.T., Feb. 11, 2003, at 86-87 (post-conviction testimony of trial counsel to the effect that “I remember talking to [Appellant’s mother]. Now exactly what we spoke about, I cannot recall.”); id. at 88 (testimony, with respect to trial counsel’s conversation with Appellant’s girlfriend, that “I don’t recall what I spoke to her about.”). Moreover, in its independent finding of no arguable merit, the majority makes no attempt to reconcile counsel’s failure to obtain school records reflecting Appellant’s placement in a special educational program for socially and emotionally disturbed children, see N.T., Feb. 11, 2003, at 89 & Ex. P-18, Appellant’s “obvious and apparent” status as a “seriously disturbed adolescent,” id. at 42, or counsel’s failure to interview various family members and others who were aware of Appellant’s history of psychiatric evaluation and treatment and developmental difficulties, as reflected in their post-conviction testimony to the effect that they simply were not contacted by counsel. See, e.g., N.T., Feb. 19, 2003, at 65-66 & Exs. D-6, D-7 (stipulated affidavits from two of Appellant’s teachers); id. at 135 (testimony of Appellant’s step father); id. at 151 (testimony of Appellant’s half-brother). In relation to the mental health aspect of this claim, the deficient character of counsel’s investigation and preparation is also reflected in his failure to obtain medical records detailing Appellant’s past psychiatric hospitalizations, see N.T., Feb. 11, 2003, at 88 & Ex. P-18, and his acknowledged failure to expand the scope of the retention of a defense psychiatrist past a competency evaluation based on a brief clinical observation and into a fuller, mitigation-based assessment. See N.T., Feb. 11, 2003, at 75 & Ex. P-10.

In my view, the PCRA court’s arguable merit determination as concerns counsel’s deficient stewardship in investigating and presenting mitigation evidence is amply supported in the record and should not be disturbed by this Court.

I recognize that the determination concerning prejudice is a closer question in this case. In this regard, as the majority *518notes, at the penalty hearing trial counsel developed several lines of mitigation, including generalized references to Appellant’s alcohol-related difficulties, see N.T., Sept. 15, 1994, at 94-95, 99-101, 107; positive adjustment to incarceration, see id. at 101; character and disposition when not subject to the influence of alcohol, see N.T., at 99-100; and positive role as a father of two children. See id. at 100. Nevertheless, I believe that the mitigation evidence that was omitted by virtue of counsel’s deficient conduct had greater potential significance in terms of the jurors’ decision whether to return a life sentence or a death verdict than that which has been attributed to it by the majority and by the PCRA court.

In particular, during the penalty hearing, the only mental health evidence that counsel presented was the testimony of Dr. Stefan Kruszewski, a psychiatrist who had been retained under court order solely to determine whether Appellant was competent to stand trial and whether his confession to the police was voluntary. See N.T., Feb. 11,2003, at 164 & Ex. P-10. Significantly, his penalty-hearing testimony was very narrowly focused along the lines of his retention, consisting primarily of an indication that, during the limited competency assessment, Appellant expressed remorse about the murders and took responsibility for his actions, but did not manifest any major psychiatric disability. See N.T., Sept. 15, 1994, at 164. Dr. Kruszewski also stated, in general terms, that if a person tends to be impulsive by nature, consuming alcohol can make that person more impulsive and can potentially lead to his committing a crime without being fully aware of what he was doing, see id. at 123; however, the witness did not connect this reasoning with anything that occurred in the present case. Nor was Dr. Kruszewski, or any other mental health expert, asked to perform a more comprehensive evaluation subsuming a review of available records from the hospitals in which Appellant was treated for psychiatric problems connected with multiple psychotic episodes (including at least one suicide attempt), or from Appellant’s school, where, again, he had been placed in a special program for students with social and emotional disturbances.

*519By contrast, Appellant’s PCRA counsel presented the testimony of a licensed clinical psychologist, Harry Kropp, PhD, who did review these documents and did conduct a fuller clinical, mitigation-based assessment of Appellant. Dr. Kropp concluded, based upon such information, that as a child Appellant suffered from pervasive developmental disorder. See N.T., Feb. 11, 2004, at 17. He also noted that there was alcoholism and domestic violence in Appellant’s childhood home, and Appellant had been chemically dependent since the age of twelve or thirteen. See id. at 19-21. Further, when in grammar school, Appellant suffered from several additional psychological infirmities which, combined with his substance abuse, resulted in paranoid and delusional traits which became exacerbated by alcohol consumption. See id. at 13-14, 21, 39, 42. Dr. Kropp indicated that these conditions constituted significant impairments to normal functioning, and led to a condition in which Appellant—who apparently had wanted to join the military from an early age—would occasionally think that he in fact was in the military, and these delusions would become particularly strong when he consumed alcohol. See N.T. Feb. 11, 2003 at 27-28. Dr. Kropp described Appellant as having a serious mental illness, id. at 30, and noted that Appellant never received necessary psychiatric treatment, in part because of a virtual lack of any family support system that would assure that treatment was sought.

Likewise, after also conducting a fuller mitigation-based assessment, Dr. Rruszewski testified at the post-conviction hearing that Appellant had a psychoactive, substance-induced delusional disorder at the time of the killings. See N.T. Feb. 19, 2003, at 182. Although the PCRA court disbelieved a discrete portion of Dr. Kruszewski’s testimony concerning Appellant’s capacity to form criminal intent, it did apparently accept Dr. Kruszewski’s conclusion (consistent with that of Dr. Kropp) that Appellant was suffering from a serious mental disorder at the time of the killings. See Saranchak, No. 889, 889A-1993, slip op. at 15, 17. Indeed, the PCRA judge—who, as the majority notes, was the same as the trial judge— expressly found, in light of the availability of the pertinent *520records at the time of trial, that counsel’s performance in this area fell below an objective standard of reasonableness, and that the mental health evidence which should have been presented would have at least supported the (e)(8), or “catchall,” mitigating circumstance. See 42 Pa.C.S. § 9711(e)(8) (“Any other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.”). The PCRA court ultimately denied relief only because it felt that, even if this mitigating factor had been proved, there was no reasonable probability that the jury would have returned a sentence of life imprisonment rather than death.

It is evident from the trial record, however, that, had this information been elicited during the penalty hearing, the court also would have instructed the jury as to the mitigating circumstance pertaining to the influence of an extreme mental or emotional disturbance. See 42 Pa.C.S. § 9711(e)(2). The reason is that counsel specifically requested this instruction, and the trial court denied the request on the sole basis that there was no expert testimony to support it. See N.T. Sept. 15, 1994, at 132.1 Had the instruction been given, it is certainly plausible—and, in my opinion, reasonably likely— that at least one juror would have found the (e)(2) mitigator,2 based upon a combination of the undiscovered expert evidence and certain lay testimony that was presented at the penalty hearing concerning Appellant’s consumption of alcohol and *521highly unusual behavior around and after the time of the killings.3 Given the weight to the mitigation case added by the evidence that was foregone by virtue of counsel’s deficient stewardship, I also believe that there is a reasonable likelihood that these mitigating factors would have convinced at least one juror to favor a life sentence over death.

As such, counsel’s failure to undertake the required investigation and to present reasonably available mitigation evidence undermines my confidence in the reliability of the death verdict, and I would award a new sentencing hearing.

. To the extent the majority opinion may be understood to affirm the trial court’s view that the (e)(2) mitigating factor requires expert evidence, see Majority Opinion, op. at 512-13 n.16, 866 A.2d at 306 n.16, I am not in agreement, as there is nothing in the capital sentencing statute that suggests such a limitation. See 42 Pa.C.S. § 9711(c)(1)(h) (providing that the court "shall” instruct the jury concerning any statutory mitigating circumstance for which there is "some” evidence); Commonwealth v. Carpenter, 511 Pa. 429, 444, 515 A.2d 531, 538 (1986) (noting that lay testimony may support the (e)(2) mitigator).

. Penalty-phase prejudice occurs whenever there is a reasonable probability that even a single juror would have concluded that the mitigating circumstance existed and that, together with any other mitigation, it outweighed (or was of equal weight with) the aggravating circumstances. See 42 Pa.C.S. § 9711 (c)( 1 )(iv); see also Wiggins v. Smith, 539 U.S. 510, 537, 123 S.Ct. 2527, 2543, 156 L.Ed.2d 471 (2003).

. For example, one of the Commonwealth witnesses at the penalty hearing stated that Appellant confessed to her that he had "snapped” on the night in question, and there was evidence from other witnesses consistent with this observation, including testimony that Appellant had been drinking heavily, he was dazed and glassy-eyed, his manner had become subdued (which was in contrast with his usual demeanor after consuming alcohol), and he had spoken to his father’s gravestone earlier in the evening. Furthermore, when interviewed by police the next evening, Appellant seemed to think that the killings were accomplished as part of a military operation, and his responses were accordingly rigid and militaristic. The officers indicated that Appellant’s demeanor was unusual as well, as he appeared to.believe that he was a new recruit and the officers were his drill sergeants.