Commonwealth v. Busanet

CONCURRING OPINION

I join the Majority Opinion, save for the discussion concerning Appellant’s claim that trial counsel was ineffective in failing to investigate and present evidence of Appellant’s mental health history. In this regard, counsel testified during the post-verdict evidentiary hearing that he had “learned in very, very general terms from talking to [Appellant] that there was some kind of psychiatric problem;” however, counsel did not view such information as significant and did not believe that its introduction would have made any difference. Other than this general discussion with Appellant, counsel made no effort to ascertain the nature and extent of Appellant’s mental health history. Moreover, apart from asserting that Appellant’s role as an accomplice in the killing diminished his culpability and warranted the imposition of a life sentence as opposed to the death penalty, counsel did not introduce any mitigating evidence. Counsel justified such inaction based upon the belief that the proposed mental health evidence would have been inconsistent with the Commonwealth’s proof that Appellant *565“seemed to be wheeling and controlling the whole, frankly, the whole murder operation.”

As the majority acknowledges, “strategic choices made after a less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland v. Washington, 466 U.S. 668, 690-91, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984). Where, as here, counsel foregoes investigation, his judgment must be “directly assessed for reasonableness in all the circumstances,” while at the same time affording a heavy measure of deference to his decision. Id.1 Such assessment includes, inter alia, a comparison of the defense offered with that which the defendant has proposed. See generally Moore v. Johnson, 194 F.3d 586, 616-18 (5th Cir.1999) (evaluating the reasonableness of counsel’s asserted strategic basis for failing to investigate and present available mitigation evidence in conjunction with such proof).2 Although a decision to not develop and present certain evidence may be deemed reasonable where such evidence is inconsistent with the defense theory, see, e.g., Commonwealth v. Williams, 557 Pa. 207, 250-51, 732 A.2d 1167, 1190 (1999), in this case, the defense theory was premised upon diminished culpability associated with Appellant’s status as an accomplice. Evidence of Appellant’s emotional or mental health problems was not necessarily opposed with this theory, as such information may have been viewed by the jury as rendering him less culpable. See Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 2947, 106 *566L.Ed.2d 256 (1989) (stating that “evidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse”).3

Nevertheless, I agree with the majority and the trial court that Appellant failed to demonstrate prejudice, as he refused to meet with the mental health expert retained following trial, thus preventing him from rendering an opinion or diagnosis bearing upon • particular mitigating circumstances. In this regard, given the circumstances, including the continuances offered and opportunities provided to Appellant to submit to examination, I also support the trial court’s decision to deny a further continuance to permit examination after Appellant finally acceded.

Chief Justice ZAPPALA joins this concurring opinion.

. Courts in other jurisdictions have, however, generally declined to deem a strategic decision reasonable where counsel has failed to investigate. See, e.g., Baxter v. Thomas, 45 F.3d 1501, 1514 (11th Cir.1995); Ex parte Land, 775 So.2d 847, 853-54 (Ala.2000); People v. Coleman, 168 Ill.2d 509, 214 Ill.Dec. 212, 660 N.E.2d 919, 933 (Ill. 1995).

. This is not to say that a claim of ineffectiveness can succeed through a hindsight comparison of the trial strategy employed with an alternative not pursued. See Commonwealth v. Howard, 553 Pa. 266, 274, 719 A.2d 233, 237 (1998). At the same time, however, where it can be demonstrated that an alternative not chosen offered a potential for success substantially greater than the course actually pursued, a finding that a given strategy lacked a reasonable basis may be warranted. See id.

. With regard to the majority's discussion of Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002), it should be noted that, in Bell, the jury had been instructed for purposes of the sentencing proceeding to consider evidence from the guilt phase of the trial, during which counsel presented significant mental health evidence from a clinical psychologist, a neuropharmacologist, and the defendant’s mother concerning the defendant’s substance abuse and post-traumatic stress disorder related to his military service in Vietnam. See id. at 690, 122 S.Ct. at 1848. Also during the guilt phase, counsel elicited testimony that the defendant had expressed remorse for the killings. See id. While counsel did not re-introduce such evidence during the penalty phase, in cross-examining a prosecution witness, counsel brought out that the defendant had been awarded a bronze star in Vietnam. See id. Thus, in contrast with the present matter, counsel in Bell placed before the jury considerable evidence of mitigation.