Commonwealth v. Rivers

SAYLOR, Justice,

Dissenting.

Appellant’s post-conviction claims were dismissed by the PCRA court without an evidentiary hearing. The lead opinion affirms the summary dismissal of Appellant’s claim that trial counsel was ineffective for failing to investigate and present an adequate case of mitigation at the penalty phase of trial, finding that Appellant’s brief does not suggest that trial counsel lacked a reasonable basis for his course of conduct. The pertinent section of Appellant’s brief opens as follows:

In an unprecedented disregard of his obligations as a death penalty lawyer, trial counsel failed to investigate and present abundant and overwhelmingly powerful mitigating evidence.
At the penalty phase of trial, defense counsel briefly presented mitigating evidence that appellant was a good mother and hard worker who had struggled to overcome her earlier problems in order to provide a better life for herself. That testimony completely failed to inform the jury of the *267horrific physical and sexual abuse inflicted on appellant by her own parents, or of the lifelong effects of that abuse on her mental and emotional functioning. It totally failed to tell the jury the full extent of the nightmare of appellant’s prior life. It told the jury nothing at all about appellant’s well-documented, and mitigating mental and emotional disturbances .... TUI of this mitigating information was readily available to counsel had counsel conducted a minimally adequate investigation. Counsel’s failure to conduct such an investigation and present the available and compelling mitigation is simply unsupportable and cannot be justified through any hindsight analysis.

(emphasis in original). The brief proceeds to describe the alleged mitigation evidence in substantial detail, with references to supporting affidavits and exhibits that were attached to the amended petition filed in the PCRA court, including affidavits of a licensed psychiatrist, Appellant’s daughter, and Appellant’s common-law husband. While I join in the lead’s expressed concern regarding certain aspects of the appellate advocacy demonstrated in this and other capital cases, given the described presentation, I do not believe that Appellant or her present counsel is fairly faulted for not framing an appropriate argument on this particular claim.

The opinion announcing judgment of the court deems Appellant’s proffer of an alternate case of mitigation irrelevant, since trial counsel did present a mitigation theory at trial. Yet, in cases in which an adequate proffer is made, our precedent requires some assessment and comparison of the qualitative aspects of the alternative strategies within the circumstances of the particular case. See Commonwealth v. Brown, 544 Pa. 406, 425, 676 A.2d 1178, 1187 (1996) (allowing for the possibility of post-conviction relief if “it can be concluded that an alternative not chosen offered a potential for success substantially greater than the course actually pursued”)(quoting Commonwealth v. Pirela, 510 Pa. 43, 59, 507 A.2d 23, 31 (1986)), cert. denied, 519 U.S. 1043, 117 S.Ct. 614, 136 L.Ed.2d 538 (1996); see also Commonwealth v. Williams, 557 Pa. 207, 245-49, 732 A.2d 1167, 1187-90 (1999). In the *268present first-degree murder case involving the intentional, brutal killing of an elderly woman who was in Appellant’s care, Appellant’s claim appears to be that the effort to invoke the catch-all mitigator by casting some general positive light upon her life, while salutary, carried substantially less weight with the jury than would a demonstration that she suffered or had been the subject of serious, affective environmental abnormalities and mental illness.1 Significantly, Appellant contends that pursuit of the latter strategy would have established the specific mitigating circumstances involving extreme mental or emotional disturbance, and substantially impaired capacity to appreciate the criminality of her conduct and to conform her conduct with the requirements of the law.2 See 42 Pa.C.S. § 9711(e)(2), (3). Where, as here, such a claim is supported by the requisite affidavits and documentation, I would permit the petitioner to proceed with the attempt to establish both the alternative strategy and its relative weight in comparison to the strategy actually pursued at a post-conviction hearing.3

*269The lead opinion describes this approach as suggesting that Appellant’s allegation of mental illness is, on this record, a “passport to a mitigated penalty.” Op. at 930- 31 n. 5. This mischaracterizes my position, however, since I do not purport to speak to the merit of Appellant’s claim. Rather, in light of the averments and supporting affidavits and documentation presented, I simply cannot support the reasons offered by the majority in countenancing the summary dismissal of Appellant’s claim without a factual assessment concerning the veracity and weight of Appellant’s evidence in the circumstances of this particular case.4 Indeed, it would seem that the same reasons offered by the lead to support summary dismissal in the present case could have been, but were not, employed by this Court in Smith (in which a hearing was conducted and *270this Court ultimately granted sentencing relief), dr in Base-more (in which a post-conviction hearing was conducted), or in Williams (in which this Court found error in the PCRA court’s failure to conduct a post-conviction hearing).

Lastly, I join the opinion announcing the judgment of the court and concurring opinions in emphasizing that post-conviction petitioners absolutely must plead and support the essential elements of a claim under the Post Conviction Relief Act in order to be entitled to a hearing on their claims, and must establish those essential elements to demonstrate eligibility for relief. Since petitioners are subject to a final judgment of sentence and have had the benefit of an available direct appeal process, they face substantial hurdles; ultimately, the availability of post-conviction relief will often depend upon factual and legal findings by a post-conviction court entailing credibility assessments and judgments concerning the weight of the evidence presented. See generally Basemore, 560 Pa. at 293-94, 744 A.2d at 737 (remanding to a post-conviction court for the performance of such credibility assessments and judgments concerning alleged mitigating evidence). Nevertheless, in the face of a proffer such as that made by Appellant, I do not believe that such process should be circumvented by summary dismissal. Accord Commonwealth v. Williams, 566 Pa. 553, 782 A.2d 517 (2001).

Justice CAPPY joins this dissenting opinion.

. Many jurisdictions recognize that, in some circumstances, substantial weight may attach to the latter form of evidence. See, e.g., United States v. Barnette, 211 F.3d 803, 825 (4th Cir.2000)(stating that "psychiatric evidence is an important part of many trials”); Baxter v. Thomas, 45 F.3d 1501, 1515 (11th Cir.1995)("[p]sychiatric mitigating evidence 'has the potential to totally change the evidentiary picture’ ”) (quoting Middleton v. Dugger, 849 F.2d 491, 495 (11th Cir. 1988)); People v. Coleman, 168 Ill.2d 509, 214 Ill.Dec. 212, 660 N.E.2d 919 (1995)(“[t]his court has acknowledged the critical importance of a defendant’s background and mental health to the sentencing decision”). As noted below, the Pennsylvania General Assembly has. also recognized this fact in its statutory prescription of two mitigating circumstances related to mental condition. See 42 Pa.C.S. § 9711(e)(2), (3).

. Centrally, Appellant supports this contention with the affidavit of an expert psychiatrist to the effect that, at the time of her offense and currently, Appellant suffered and suffers: post-traumatic stress disorder as a result of, inter alia, being persistently subjected to traumatic childhood physical and sexual abuse and rape as an adult woman; dysthymia with a history of depressive episodes; and a paranoid personality disorder that has at times resulted in overtly psychotic episodes. The psychiatrist offers the opinion that such conditions constitute an extreme emotional disturbance and substantially impaired and impair Appellant's capacity to appreciate the criminality of her conduct and conform her conduct to the requirements of the law.

. In Commonwealth v. Smith, 544 Pa. 219, 675 A.2d 1221 (1996)(plural-ity opinion), this Court vacated a sentence of death and remanded for a *269new sentencing hearing on a claim that counsel was ineffective in failing to present mitigating evidence concerning the defendant's mental health. See id. at 245-46, 675 A.2d at 1234. Trial counsel in the case had pursued two other mitigating factors but apparently had otherwise elected to limit the scope of the presentation for tactical reasons. See id. at 245 n. 12, 675 A.2d at 1233-34 n. 12. Nevertheless, based upon the fact that the record disclosed that the appellant suffered some mental problems, and the jury appeared to consider the appellant's mental state significant, the Court granted relief. See id. at 244-45, 675 A.2d at 1233-34 (holding that “where counsel is informed that his client has suffered some mental problems that may provide evidence of mitigation in the penalty phase, counsel is ineffective if he fails to pursue such evidence”).

In my view, the narrow holding of Smith is assailable for the reason that a post-conviction hearing actually had been conducted in the case and the appellant apparently failed to develop an actual record of mental health mitigation to support the necessary conclusion that the alternative, available course substantially outweighed the strategy pursued. See Smith, 544 Pa. at 250-51, 675 A.2d at 1236 (Castille, J., dissenting). Nevertheless, the essential principle has carried forward in our decisional law that, where the issue of an attorney’s ineffectiveness in failing to pursue an alternative strategy to establish mitigation is properly framed with an adequate proffer, an assessment should be undertaken of the nature and quality of the evidence that purportedly should have been presented to the sentencing jury, as well as of the reasonableness of trial counsel’s investigation. See, e.g., Commonwealth v. Basemore, 560 Pa. 258, 289-94, 744 A.2d 717, 735-38 (2000); Williams, 557 Pa. at 245-49, 732 A.2d at 1187-90.

. Although the majority asserts that this would constitute an “additional” post-conviction hearing, the record should be made clear that Appellant has had no, hearing on her post-conviction claims.