Commonwealth v. Brown

*516Justice SAYLOR,

dissenting.

I respectfully dissent, as I would remand to the PCRA court for an evidentiary hearing on the Appellant’s capital, post-conviction petition. In accordance with the Post-Conviction Relief Act, Appellant provided the PCRA court with a series of declarations, including that of his trial counsel, to the effect that:

I was shocked by the jury’s guilt-phase verdict and I had not done any preparation for the penalty phase of the case.... I had no strategic or tactical reason not to adequately prepare for penalty phase.
I failed to interview any witness about any aspect of Mr. Brown’s mental health or upbringing. I was aware of Mr. Brown’s obsession with space and space travel but it did not occur to me to consult with a mental health expert. I have reviewed the affidavits submitted in this case that chronicle Mr. Brown’s history of mental problems, the abuse and neglect he received when he was young, his bipolar disorder and organic brain damage. Had I known such information, I would have presented it to the jury.... I had no strategic or tactical reason for failing to investigate, develop, or present this compelling evidence concerning Mr. Brown’s background, life history, and mental illness.

Appellant also presented a corroborating declaration from an attorney who was appointed as associate counsel:

[Lead counsel] was not prepared for the fact that this was a capital case. For example, on July 2, 1991, six days before trial, he indicated to me by letter that he was not sure whether the Commonwealth was going to ask for a death-qualified jury. [Lead counsel] did no penalty phase preparation prior to the guilt-stage verdict. After the guilt-stage verdict, he urged people who were in the courtroom to testify on [Appellant’s] behalf, but he did not conduct any interviews or ask anyone about [Appellant’s] background. Similarly, he asked [Appellant’s] girlfriend, Harriet Carter, to write down every good thing that she could think about him. He did not inquire about his background, childhood or *517his mental health. There was no strategic or tactical reason not to investigate [Appellant’s] history and background. Nor did [lead counsel] contact any mental health experts. There were several indications that [Appellant] was mentally ill. For example, [Appellant] was obsessed with space travel and signed his letters to me and [lead counsel] with “stardate.” Similarly, in several interviews with the police, witnesses indicated that [Appellant] acted very strange. I have reviewed affidavits submitted in this case that chronicle [Appellant’s] history of mental problems, the abuse and neglect he received when he was young, and his bipolar disorder and organic brain damage. Had I known of such information, I would have urged [lead counsel] to present it during the penalty phase. It would have greatly strengthened Appellant’s penalty phase defense and explained to the jury the circumstances surrounding the crime. There was no strategic or tactical reason for failing to investigate, develop, or present this compelling evidence concerning [Appellant’s] background, life history, and mental illness.

Further, as alluded to in the declarations of counsel, Appellant also furnished the court with an attestation from a psychiatrist to Appellant’s suffering from major mental health impairments as of the time of the commission of his offenses, including bipolar disorder and organic brain damage; a report of a neuropsychologist describing impairing effects of Appellant’s asserted mental health deficits in terms of his cognitive abilities and functioning; and life-history declarations from various witnesses attesting to Appellant’s abandonment and abuse during his childhood.

The United States Supreme Court has made very clear that capital counsel have a duty to conduct a thorough investigation of the defendant’s background in preparation for the penalty phase of trial. See Wiggins v. Smith, 539 U.S. 510, 546, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003); Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 1514-15, 146 L.Ed.2d 389 (2000). To the extent that a mitigation investigation is truncated, the reviewing court must determine whether the decision to curtail the inquiry was supported by reasonable proles*518sional judgment. See Wiggins, 589 U.S. at 528, 123 S.Ct. at 2536.

The majority appears to accept that counsel in this case may not have conducted the sort of thorough mitigation investigation that is contemplated under prevailing norms, but despite the disturbing implications of the declarations presented, it rejects the proposition that a factual inquiry is implicated. With respect to the mental health dynamic, the majority posits that “the record at the time of trial did not reveal evidence of mental illness or abuse that would have prompted trial counsel to conduct a further investigation in this regard.” Majority Opinion, op. at 478-79, 872 A.2d at 1149. To the extent that this would be true, however, it is not dispositive, since counsel’s duty to investigate was not confined to matters developed as of record. In fact, claims of ineffective assistance of counsel are most often extra-record claims; indeed, this was a primary premise of the Court’s recent decision to defer them to post-conviction review so they could be properly developed on a full and complete evidentiary record. See Commonwealth v. Grant, 572 Pa. 48, 64, 66, 813 A.2d 726, 736-37 (2002).

Moreover, the majority’s proposition is not accurate. In fact, as the majority itself notes (albeit in passing), in a 1991 pre-sentence report which was presumably available to counsel, Appellant was diagnosed as suffering from a personality disorder. See Majority Opinion, op. at 478-79, 872 A.2d at 1149. In addition to the other indicia of potential mental infirmity referenced in counsels’ declarations (if believed), this should, have triggered further inquiry on counsel’s part. Accord Basemore, 560 Pa. at 292, 294-96, 744 A.2d at 735, 737-38 (finding penalty-phase counsel’s awareness of unusual behavior and a mixed personality disorder on the part of his capital client important to the determination of whether further mitigation-based, mental-health investigation was warranted, and correspondingly, whether counsel’s stewardship was deficient, and remanding for fact finding in this regard).1 Most other *519courts recognize that capital sentencing jurors may place substantial weight on mental health mitigation;2 indeed, a thorough mental-health investigation is a pillar of the American Bar Association’s guidelines for the Appointment and Performance of Counsel in Death Penalty Cases.3

The majority also faults Appellant for not having apprised counsel of any mental health condition. See, e.g., Majority Opinion, op. at 478-81, 872 A.2d at 1149-50. Again, however, the focus of ineffectiveness inquiry does not rest upon the capital defendant, but rather, on the reasonableness of the pre-trial investigation conducted by counsel. See Wiggins v. Smith, 539 U.S. 510, 523, 123 S.Ct. 2527, 2536, 156 L.Ed.2d *520471 (2003); Commonwealth v. Malloy, 579 Pa. 425, 459, 856 A.2d 767, 788 (2004) (“The onus is not upon a criminal defendant to identify what types of evidence may be relevant and require development and pursuit. Counsel’s duty is to discovery such evidence through his own efforts, including pointed questioning of his client.”); Commonwealth v. Basemore, 560 Pa. 258, 290, 744 A.2d 717, 735 (2000) (“Obviously, ... different light falls upon counsel’s performance depending upon whether he asked and was not told, or he did not ask and therefore was not told.”). The relevant question simply cannot be answered without exploring, inter alia, what avenues counsel pursued to develop mitigation evidence, including what questions counsel asked of his client.4

The majority also offers a brief assessment concerning the prejudice prong of the ineffectiveness inquiry that affords no express comparison between the evidence presented at the penalty phase of trial and that which Appellant seeks to develop on post-conviction review that, and thus, lacks a reasoned accounting for the qualitative aspect of the capital sentencing process. Compare Majority Opinion, op. at 479-82, 872 A.2d at 1150-51 (reasoning that Appellant was not prejudiced by trial counsel’s performance during the penalty phase because “the jury found the mitigating circumstance that Appellant acted under extreme mental or emotional disturbance and the catchall mitigating circumstance of other evidence of mitigation.”), with Commonwealth v. Brown, 538 Pa. 410, 429, 648 A.2d 1177, 1186 (1994) (explaining that the *521weight of the evidence presented, and not the ability to “count” any particular mitigator, is the dispositive factor in the death penalty statute’s qualitative approach to the selection in capital sentencing). Again, other jurisdictions recognize the potential that the sort of mental-health mitigation that Appellant has proffered was omitted from his trial by virtue of his counsel’s inadequate preparation may be deemed by jurors to be of substantial weight in the sentencing equation. See supra notes 2 and 3. Indeed, some have done so by way of explicit contrast to the sort of generalized “humanizing” evidence alluded to by the majority. Compare Majority Opinion, op. at 479-82, 872 A.2d at 1150-51 (relying upon trial counsel’s having offered mitigation evidence portraying Appellant as a “caring friend and neighbor” to foreclose a hearing concerning Appellant’s post-conviction proffer of evidence of major mental health illness), with Allen, 366 F.3d at 850-51 (explaining the substantial difference between generalized “humanizing” evidence and evidence which tends to explain or afford some context to the defendant’s criminal behavior—“the mitigation evidence proffered by [the defendant], which consisted primarily of testimony that at some points in his life [the defendant] had been nice to some people and that some people cared for him, is not of the same ‘quantity and quality’ as that which supported our decision in Mayfield[, 270 F.3d 915 (C.A.9, 2001)] [, a case involving, inter alia, substantial life-history and mental-health related mitigation], and could not have ‘humanized’ him during the time frame of the murder conspiracy at issue.”); id. (“We have rarely granted habeas relief based solely upon humanizing, rather than explanatory, mitigation evidence in the face of extensive aggravating circumstances). Moreover, and again, the majority’s failure in its prejudice assessment to engage in any explicit comparison of the penalty-phase presentation with that which is offered on post-conviction review is contrary to precedent. See, e.g., Malloy, 579 Pa. at 461, 856 A.2d at 789 (explaining that “in considering whether appellant was prejudiced we must consider not only the evidence and argument presented at the penalty phase, but also the evidence and argument that would *522have been presented at the penalty hearing had trial counsel properly investigated such evidence” (emphasis in original)).5

Finally, the majority would simply accept the PCRA court’s credibility determination (made without the benefit of hearing the witnesses) that counsels’ concessions of unpreparedness are untrue, because counsel offered testimony from eight mitigation witnesses at the penalty phase of trial. See Majority Opinion, op. at 481-82 n. 9, 872 A.2d at 1151 n. 9. An examination of the actual penalty-phase mitigation testimony, however, covering a relatively brief 30 pages of transcript, supports rather than contradicts counsels’ declarations. The first witness called was a detective who had testified in the Commonwealth’s case-in-chief (and thus was immediately available to counsel), and the testimony proceeded as follows:

Q: Good morning again, Detective.
A. Good morning.
Q. I stopped you very briefly out in the hall a few moments ago, did I not?
A. Yes.
Q. I asked you a question, did I not?
A. Yes.
Q. Repeating that question, since that incident back in 1967 where Mr. Brown pled guilty to voluntary manslaughter and conspiracy, according to your records, has he been arrested or convicted of any crimes since that date?
*523A: Since the date of 1967, our records in the city of Philadelphia show that he has not been arrested in the city.
[Counsel]: Thank you very much.

N.T., Jul. 24, 1990.

The next witness was Appellant’s girlfriend, Harriet Carter, and her testimony opened as follows:

Q. I telephoned you last evening, did I not?
A. Yes.
Q. I told you over the telephone what the verdict was in this case?
A. Yes.
Q. I asked you to do something for me last night, did I not?
A. Yes.
Q. What did I ask you to do?
A. You asked me to write down everything good about John Brown.

N.T., July 24,1991, at 1032-33 (emphasis added). The bulk of the remainder of the Ms. Carter’s direct testimony (covering five pages of the transcript) consists of her reading the statement that she had prepared the previous evening. See id. at 1034-36. The remaining witnesses appear to have been persons Ms. Carter was able to summon to the courtroom, including her children Robert (whose testimony covers approximately 4 pages of transcript), Angela (2 pages), and April (2 pages); Ms. Carter’s brother (3 pages); Ms. Carter’s sister (1 page); and a friend of Ms. Carter’s (2 pages).6 Counsel’s post-conviction attestation that he was shocked by the guilt-phase verdict is also confirmed in the penalty-phase record, as he related this to the jury in his closing argument. See N.T., July 24, 1991, at 1075 (“and of course you saw the look of *524shock and surprise on my face when you announced your verdict”).

Thus, the record does not support the characterization of the attorneys’ post-conviction declarations as misrepresentations, but rather, strongly corroborates the declarations. Counsel’s presentation of the case for life imprisonment over death contains none of the deeper, explanatory-type evidence that would require an actual investigation and which Appellant now seeks to demonstrate was available to counsel, had he performed reasonably. Rather, it is precisely of the sort that could have been fashioned immediately before the penalty phase, as counsel have attested was the case and as the record supports.

It remains my position that, in circumstances (such as here) in which affidavits, declarations, or similar evidentiary proffers are presented to a PCRA court which, if believed, would bring the reliability of the death verdict into legitimate question, a post-conviction hearing and associated fact-finding are required. See Pa.R.Crim.P. 909(2) (authorizing dismissal of a PCRA petition only where there are no material facts in issue, and no relief is available as a matter of law).7 Under the clear import of the rules, and in light of the above perspective, the assessment concerning counsels’ truthfulness in conceding deficient stewardship in terms of penalty-phase preparation, as well as the credibility and weight of Appellant’s post-conviction proffer of mitigating evidence, should be made based on an evidentiary record. .

I also note my disagreement with several other aspects of the majority’s articulation and application of relevant legal precepts controlling the treatment of Appellant’s claims. For example, the majority suggests a very broad application of the previous litigation doctrine to bar Appellant’s claim that his trial and direct appeal counsel were ineffective for failing to *525challenge the legal availability of the sole aggravator on grounds of statutory construction, based on the Court’s disposition on direct appeal of a claim of prosecutorial misconduct in the Commonwealth’s underlying evidentiary presentation. See Majority Opinion, op. at 470-73, 872 A.2d at 1144-45 (citing Commonwealth v. Brown, 538 Pa. 410, 427-28, 648 A.2d 1177, 1185 (1994)). Apparently not fully comfortable with this application of previous litigation, the majority alternatively invokes the doctrine of waiver, based on the claim not having been raised on direct appeal. See id. at 471-73, 872 A.2d at 1145. This, however, simply overlooks Appellant’s separate assertion of ineffective assistance on the part of his direct-appeal counsel in failing to raise and preserve the claim;8 but it is well settled that if such a separate claim is proved, it may be relied upon to overcome waiver of an underlying claim. See, e.g., Commonwealth v. McGill, 574 Pa. 574, 586-87, 832 A.2d 1014, 1021-22 (2003). While the majority might fault Appellant’s present counsel for insufficiently developing such ineffectiveness claim, this Court has acknowledged the shortcomings of the jurisprudence that prevailed during the time frame in which this case was briefed, see id. at 584, 832 A.2d at 1020, and thus determined that the proper treatment of claims along these lines is not outright rejection on grounds of waiver, but rather, a remand for adequate development of the claim in accordance with the framework articulated in McGill. See id. at 591, 832 A.2d at 1024.9

The majority also articulates the exception to McGill’s remand rule by indicating that a petitioner must have pled, presented, and proved his underlying claim in order to be eligible for the remand. See Majority Opinion, op. at 475-78, 872 A.2d at 1147-48. McGill, however, does not require actual proof of the claim as a prerequisite to a mere remand in *526all circumstances—to the contrary, it states a general preference in favor of remand, and the logical and fair import of the exception that it recognizes is that it should apply only in circumstances in which the underlying claim is facially defective or capable of being deemed meritless on the state of the record presented. See McGill, 574 Pa. at 591-92, 832 A.2d at 1024-25. Indeed, in circumstances where (as here) the petitioner has been afforded no opportunity to prove his claims,10 as he was denied a post-conviction hearing, it is manifestly unfair to suggest that the availability of a McGill remand should depend upon some failure of the petitioner’s proofs.

. Even if the presentence report had not contained indicia of a personality disorder on Appellant’s part, I have previously expressed my difference with the position that the existence of a pre-sentence report *519prepared at the instance of the government obviates further mitigation investigation on the part of capital, penalty-phase counsel. See Commonwealth v. Fears, 575 Pa. 281, 319-20, 836 A.2d 52, 75 (2003) (Saylor, J., concurring); accord Averhart v. State, 614 N.E.2d 924, 930 (Ind.1993) (finding capital counsel ineffective, inter alia, for naively placing undue emphasis on the contents of a pre-sentence report in terms of the production of his own case for mitigation).

. See, e.g., Allen v. Woodford, 366 F.3d 823, 850-51 (9th Cir.2004) ("Defense counsel’s use of mitigation evidence to complete, deepen, or contextualize the picture of the defendant presented by the prosecution can be crucialf.]”); 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, 934 (1995) ("We acknowledge the critical importance of a defendant's background and mental health to the sentencing decision.”).

. See generally ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 4.1, commentary (rev. ed. Feb.2004) (observing that “mental health issues are so ubiquitous in capital representation that the provision of resources in that area should be routine”); id. 214 Ill.Dec. 212, 660 N.E.2d 919, commentary (“In particular, mental health experts are essential to defending capital cases. Neurological and psychiatric impairment, combined with a history of physical and sexual abuse, are common among persons convicted of violent offenses on death row.”); id. (observing that “the defendant's psychological and social history and his emotional and mental health are often of vital importance to the jury's decision at the punishment phase!;] .. . [c]ounsel must compile extensive historical data, as well as obtain a thorough physical and neurological examination.”).

. In defense of its apparent position that it is not necessary to explore what avenues counsel pursued, the majority cites Commonwealth v. Bracey, 568 Pa. 264, 795 A.2d 935 (2001), and Commonwealth v. Uderra, 550 Pa. 389, 706 A.2d 334 (1998). Both decisions, however, predate the United States Supreme Court's definitive clarification concerning the essential focus on counsel's investigation in Wiggins, 539 U.S. at 522-24, 123 S.Ct. at 2536, which was followed by this Court in Malloy, 579 Pa. at 461-62, 856 A.2d at 789. The majority’s efforts to distinguish Malloy on the facts, see Majority Opinion, op. at 481-82 n. 9, 872 A.2d at 1151 n. 9, do not speak to the straightforward legal proposition for which I have cited it, above.

It is also noteworthy that in both of the cases cited by the majority, Uderra and Bracey, the defendant was afforded an evidentiary hearing on the penalty-phase ineffectiveness claim, which is the sole relief that I would presently award.

. To the extent that the majority's prejudice analysis is predicated on the assertion that Appellant has failed to proffer that evidence of mental infirmity existed at the time of trial, see Majority Opinion, op. at 479-82, 872 A.2d at 1150-51, it overlooks the pre-existing diagnosis of a personality disorder, the unusual behavior relative to space travel, and the attestations of the defense psychiatrist to the effect that his diagnosis of long-standing major mental health disorder is confirmed by the historical information. See, e.g., Declaration of Richard Dudley, Jr., at ¶ 6 ("Mr. Brown's life history, as presented in the collateral information, confirms my view that Mr. Brown suffered from these deficits for much of his lifetime.”).

. The only other witness was Appellant's sister, who had testified as a Commonwealth witness in the guilt phase of trial.

. In addition, summary disposition of Appellant’s post-conviction petition was also procedurally inappropriate here, as the record does not reflect that Appellant was furnished pre-dismissal notice of the reasons why the court was denying a hearing, as is required by Criminal Procedural Rule 909(B)(2)(a).

. The majority controverts the observation that Appellant was denied an opportunity to prove his claim in this case, via reference to the PCRA court's having conducted "hearings solely to determine whether an evidentiary hearing was required.” See Majority Opinion, op. at 481-82 n. 9, 872 A.2d at 1151 n. 9. I fail to see, however, how characterizing oral argument on a Commonwealth motion to dismiss as a "hearing” alters the fact that Appellant was not afforded the opportunity to create an evidentiary record pursuant to Criminal Procedural Rule 909(B).

. Compare, e.g., Majority Opinion, op. at 471-73, 872 A.2d at 1145 (finding Appellant's challenge to the jury's finding of the (d)(12) aggravator waived “due to Appellant's failure to raise it on direct appeal”), with Brief of Appellant, at 16 (“All prior counsel were ineffective for failing to properly litigate this claim.”).

. Such remand, of course, might be avoided by merely addressing the underlying merits of Appellant’s statutory construction claim.