Commonwealth v. May

Justice CASTILLE,

concurring.

I join the Majority Opinion without qualification in its treatment of Issues 2, 4, 5, 6, and 8. I concur in the result as to Issues 1 and 3, as I share some, but not all, of the concerns articulated in Mr. Justice Saylor’s Concurring Opinion. I also agree that appellant is entitled to penalty phase relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq., on his seventh claim, to wit, that his appellate counsel were ineffective in failing to challenge the trial court’s ruling that evidence relating to childhood abuse he suffered at the hands of his father was inadmissible. I write separately on Issue 7, however, because I do not entirely agree with the Majority’s constitutional analysis of this claim, including its ultimate and inapposite finding that counsel’s trial performance, and not their appellate performance, was deficient. In my view, a proper resolution of this claim requires a more thorough and nuanced approach, which I attempt to set forth below. In addition, I respectfully disagree with some broad preliminary observations the Majority makes which suggest that evidence concerning a capital defendant’s childhood must *215be introduced as mitigation evidence at the penalty phase of a capital trial.

I. The Appropriate Sixth Amendment Standard of Review.

In its seminal decision in Strickland, v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the U.S. Supreme Court stressed that, “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” 466 U.S. at 689, 104 S.Ct. 2052. This is so because it is “all too tempting” for a defendant to second-guess counsel, and “all too easy” for a court to deem a particular act or omission unreasonable merely because counsel’s overall strategy did not achieve the result his client desired. Id. See also Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) (Strickland Court adopted “the rule of contemporary assessment” because it recognized that “from the perspective of hindsight there is a natural tendency to speculate as to whether a different trial strategy might have been more successful”); Waters v. Thomas, 46 F.3d 1506, 1514 (11th Cir.1995) (“nothing is clearer than hindsight — except perhaps the rule that we will not judge trial counsel’s performance through hindsight”). Accord Commonwealth v. Bond, 572 Pa. 588, 819 A.2d 33, 51 (2002).

Citing to separate opinions filed in this Court’s non-majority decision in Commonwealth v. Jones, 572 Pa. 343, 815 A.2d 598 (2002), the Majority suggests that there are competing approaches to the Sixth Amendment standard for assessing claims of ineffective assistance of appellate counsel. The Majority then quotes at length from Madame Justice Sandra Newman’s Concurring Opinion in Jones for the absolute, bright-line proposition that appellate counsel “can never be effective in failing to raise a meritorious claim.” Majority op. at 211, 898 A.2d at 575. That broad test, as stated, apparently would deem irrelevant any consideration of the reasonableness *216of counsel’s actual performance: if the appellate claim seemed to have merit in hindsight, appellate counsel would be deemed per se ineffective. In resolving the instant claim, however, the Majority ultimately does not employ the per se approach of the Jones concurrence, but instead, very briefly discusses appellate counsel’s PCRA testimony and concludes that, because counsel articulated no strategic reason for failing to raise the claim at issue on appeal, the performance prong of the Strickland test is satisfied.

In my view, the question of the appropriate standard for assessing claims of appellate counsel has been answered by the the U.S. Supreme Court, which has made clear that the Strickland performance and prejudice test governs Sixth Amendment claims concerning appellate performance. Moreover, the High Court has recognized the special considerations which govern a review of the reasonableness of decisions by appellate counsel. That authority has been summarized as follows:

To prove [appellate counsel] ineffective under the Sixth Amendment, PCRA counsel would have had to prove not only the underlying merit of each waived claim ... but satisfy the entire Strickland standard. Smith v. Robbins, 528 U.S. 259, 289, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (petitioner “must satisfy both prongs of the Strickland test in order to prevail on his claim of ineffective assistance of appellate counsel”); Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). Moreover, ... even identifying an issue of “arguable” merit does not prove that appellate counsel acted unreasonably, or that prejudice ensued. This is so because, as the U.S. Supreme Court has recognized, appellate counsel is not constitutionally obliged to raise every conceivable claim for relief. Counsel may forego even arguably meritorious issues in favor of claims which, in the exercise of counsel’s objectively reasonable professional judgment, offered a greater prospect of securing relief. Jones v. Barnes, 463 U.S. 745, 750-54, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983); see also Robbins, 528 U.S. at 288, 120 S.Ct. 746, 145 L.Ed.2d 756 (“[A]ppellate counsel *217... need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal.”). “Generally, only when ignored issues are clearly stronger than those presented will the presumption of effective assistance of counsel be overcome.” Gray v. Greer, 800 F.2d 644, 646 (7th Cir.1986) (quoted with approval in Robbins, 528 U.S. at 259, 120 S.Ct. 746, 145 L.Ed.2d 756).
* * *
The High Court has explicitly recognized that appellate counsel is not constitutionally obliged to raise any and all nonfrivolous claims; to the contrary, the Court has, on repeated occasions, emphasized that vigorous, effective appellate advocacy requires the exercise of reasonable selectivity in deciding upon which claims to pursue. Robbins, 528 U.S. at 288, 120 S.Ct. 746, 145 L.Ed.2d 756; Barnes, 463 U.S. at 750-54, 103 S.Ct. 3308, 77 L.Ed.2d 987. “This process of ‘winnowing out weaker arguments on appeal and focusing on’ those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.” Smith, 477 U.S. at 536, 106 S.Ct. 2661, 91 L.Ed.2d 434 (quoting Barnes, 463 U.S. at 751-52, 103 S.Ct. 3308, 77 L.Ed.2d 987). See also Buehl v. Vaughn, 166 F.3d 163, 174 (3d Cir.1999) [ (per Alito, J.) ] (“One element of effective appellate strategy is the exercise of reasonable selectivity in deciding which arguments to raise.”). Barnes emphasized that “[t]here can hardly be any question about the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review.” 463 U.S. at 752, 103 S.Ct. 3308, 77 L.Ed.2d 987.

Jones, 815 A.2d at 613, 614 (Opinion Announcing Judgment of Court by Castille, J.).

I recognize that focusing on an academic and non-contextual consideration of issues as theoretical absolutes would certainly streamline the inquiry; but such an approach would violate the constitutional standard and ignore the reality of appellate *218advocacy. Appellate claims do not arise in the abstract; they arise from the concrete, ever-changing circumstances attending actual cases. Any lawyer with a modicum of appellate litigation experience knows that appellate court decisions in all but the most routine of appeals are unpredictable. I do not indulge the fiction that appellate judges merely reveal immutable and indisputable truths awaiting a proper caption for exposure of these truths. Jurisprudential principles and standards emerge from the crucible of fact-bound litigation of actual cases and controversies, and the ultimate resolution often still may prove debatable among reasonable jurists. No matter how confident, or how unsure, an appellate advocate is in the claims he has raised, he will find that they indeed proved meritorious, or not, only upon receipt of the court’s opinion(s) and a counting of the votes. It is not uncommon for a lawyer to find himself vindicated on an issue at trial, rejected on post-verdict motions, vindicated again on direct appeal, then rejected again on discretionary appeal. It is not uncommon that the most brilliant, focused and novel appellate arguments suffer through multiple rejections before finally being accepted.

In short, there are strategic decisions to be made by counsel on appeal, no less than at trial. An analysis of the performance of appellate counsel must assess the actual reasonableness of counsel’s performance in light of the contemporaneous real-world concerns which framed their advocacy.

II. Analysis of Counsel’s Performance Under Strickland.

The Majority begins its analysis of Issue 7 with a lengthy discussion of the evolving role of childhood evidence as mitigation in a capital sentencing proceeding. Majority op. at 207-10, 898 A.2d at 573-74. Respectfully, in my view, the Majority misapprehends the scope of the relevant authority. The governing precedent on this point cited by the Majority stands only for the proposition that childhood evidence offered at the penalty phase in mitigation is admissible when relevant to the defendant’s character or record. See, e.g., Eddings v. Oklahoma, 455 U.S. 104, 114, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) *219(sentencer may not “refuse to consider, as matter of law, any relevant mitigating evidence”); Lockett v. Ohio, 438 U.S. 586, 608, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (statute that precluded sentencer from considering relevant mitigating factors held unconstitutional). Thus, a court cannot exclude such relevant evidence if proffered by the defendant.

This authority concerning the relevance and admissibility of evidence, however, does not support the Majority’s overbroad dicta suggesting that childhood evidence is “an essential component” of the penalty process, or that it is of “paramount importance” to apprise the jury of the circumstances of the defendant’s childhood, or that it is “vital to a fair sentencing procedure.” The fact that the U.S. Supreme Court deems such evidence to be relevant, and thus teaches that courts should not exclude it when proffered by the defense, does not mean that a defendant, or his counsel, is obliged to forward childhood information. See Wiggins v. Smith, 539 U.S. 510, 535, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (finding counsel ineffective for failing to adequately investigate defendant’s background, though not suggesting that results of thorough investigation must be presented). Indeed, a defendant could waive the presentation of such evidence; or, counsel could avoid childhood evidence if, in counsel’s reasonable professional judgment, counsel concludes that it would not advance the defense case. Childhood evidence can be a double-edged sword; some things about a defendant’s childhood obviously may weigh in favor of returning a death sentence. The fact that childhood evidence is admissible, in short, does not mean it is required, and the Majority is mistaken in suggesting otherwise.

In any event, the case sub judice does not involve the circumstance covered by the Majority’s dicta, but rather, a claim of ineffective assistance on appeal in failing to challenge the court’s penalty phase ruling on the admissibility of defense evidence in mitigation. When appellant’s claim is properly considered under the Strickland standard, I am constrained to conclude that he is entitled to penalty phase relief under existing law. To properly assess counsel’s appellate perform*220anee in this case requires an understanding of the context of the resentencing proceeding and its appeal which are at issue. On direct appeal, this Court upheld appellant’s conviction, but remanded for a new sentencing proceeding. We noted that the jury had been charged with two aggravating circumstances — that the killing was committed while in the perpetration of a felony, that felony being attempted rape,1 and that appellant had a significant history of felony convictions involving the use or threat of violence.2 The jury found only the first aggravating circumstance, also found a single mitigating circumstance, and then found that the aggravator outweighed the mitigator, which required a sentence of death. This Court, in an opinion by Mr. Justice (now Chief Justice) Cappy, held that the aggravating circumstance found by the jury was compromised because the jury’s verdict slip stated that it found that the felony appellant committed during the killing was rape (on which it was not charged) rather than attempted rape (on which it was charged). Because the jury found a felony aggravator that was not charged, we vacated and remanded for resentencing, being careful to note that we were not passing upon the sufficiency of the evidence to support the charged aggravator. Commonwealth v. May, 540 Pa. 237, 656 A.2d 1335, 1344-45 nn. 9-13 (1995).3

On remand, the Commonwealth provided notice of its intention to seek the death penalty based upon the same two aggravating circumstances ((d)(6) and (d)(9)) which it had pursued at the initial sentencing proceeding. Appellant’s counsel moved to prohibit consideration of the (d)(6) aggravator, arguing that the trial evidence was insufficient to prove attempted rape. The trial court agreed and granted the motion on November 30,1995.

The next day, December 1, 1995, the trial court held a hearing during which the parties discussed the most efficient *221way to proceed. The prosecutor noted that the new jury had to be given some sense of the underlying facts, and that he had considered presenting live witnesses to “give the jury a flavor” of what had occurred at trial, but felt that the court’s exclusion of the attempted rape aggravator precluded that option. The prosecutor suggested that the court could apprise the jury of the factual background of the case by reading the same synopsis of the trial evidence which it had provided prior to charging the guilt phase jury, and then note that the guilt phase jury had found appellant guilty of first degree murder. Appellant’s counsel agreed to this course of action, which kept live testimony concerning the guilt phase from being introduced before the new jury. N.T. 12/1/95 at 2-4, 11-12. By this procedural agreement, the new jury, for example, would not hear the live testimony of two young women (15 year-old G.S. and 19 year-old S.S.), whom appellant had viciously assaulted soon after murdering Kathy Lynn Fair, the victim in this case. Like Ms. Fair, G.S. and S.S. were repeatedly stabbed by appellant; in addition, appellant raped S.S., and he then left the two girls for dead near the same location where he had murdered Ms. Fair. Evidence of the December 1982 crimes against G.S. and S.S. were introduced at the guilt phase as signature crimes; this Court upheld the admissibility of that testimony on direct appeal. See Commonwealth v. May, 656 A.2d at 1340-41.

The discussion then turned to expected penalty phase evidence. The defense stipulated to the Commonwealth’s proof regarding the remaining aggravating circumstance, ie., appellant’s criminal record arising from the December 1982 attacks on G.S. and S.S. N.T. 12/1/95 at 13-14. With respect to mitigation evidence, defense counsel asked the court whether, if appellant were to present evidence concerning his character, work history, and conduct in prison, the Commonwealth would be permitted rebuttal. The court ruled that it would allow evidence of bad character so long as it was “appropriate rebuttal to evidence of positive character if that is offered by [appellant].” Defense counsel next broached the subject of calling appellant’s mother to testify concerning events in his *222childhood, to his “intellectual age” as opposed to his “chronological age,” and to his educational level. The prosecutor stipulated to appellant’s chronological age. The court then noted that it would permit competent evidence “on the intellectual capabilities of [appellant]” and that it did not deem such to be character evidence subject to the Commonwealth’s bad character rebuttal evidence. Id. at 15-18, 20, 25, 28-29.

The discussion then returned to evidence concerning appellant’s childhood, and specifically, his treatment at the hands of his father. Appellant’s proffer concerned evidence that his father was very domineering; that he beat his children with a belt leaving welts on them; and that he forced appellant to observe sexual conduct performed by his mother and sister, at the same time being told that he would be beaten if he told anybody about it. The trial court indicated that it did not see such “bad childhood” evidence fitting into any of the eight enumerated mitigating circumstances, and noted that it would sustain a Commonwealth objection to such evidence. Defense counsel then met with the prosecutor separately, and afterward informed the court that they had decided not to call witnesses at the penalty phase, but instead, would rely upon the stipulations concerning appellant’s age and his prior record. Id. at 18-21, 29-32.

A penalty phase jury was selected on December 6, 1995. After the court summarized the testimony from the guilt phase for the new penalty jury, the Commonwealth sought to prove its case in aggravation by a stipulation and the brief testimony of a police witness, which established the fact of appellant’s April 29, 1983 convictions for the December 1982 attempted homicide of G.S., the attempted homicide of S.S., the aggravated assault upon G.S., the aggravated assault upon S.S., and the rape of S.S. The defense then read two stipulations respecting its case in mitigation: (1) that, before April 29, 1983, appellant had no prior criminal convictions; and (2) that, on April 29, 1983, he was 25 years of age. The defense did not present evidence relating to the “catchall” mitigating circumstance set forth in 42 Pa.C.S. § 9711(e)(8). N.T. 12/6/95 at 651-72.

*223In closing argument, appellant’s counsel focused on the Commonwealth’s proffered aggravating circumstance, arguing at length that appellant’s criminal record did not establish a significant history of prior violent felony convictions because, inter alia, his convictions arose from a single set of circumstances occurring one night in December 1982. The jury returned a sentence of death, finding the aggravating circumstance, while finding neither of the proffered mitigating circumstances.

On appeal from this second death sentence, appellant, who was still represented by his two trial attorneys, raised two claims arising under Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), to wit: (1) that the court erred in refusing to charge the jury that a life sentence in Pennsylvania means incarceration for life without the possibility of parole; and (2) that the court erred to the extent that it offered to issue such a charge but only with an elaboration that a pardon or commutation was potentially available to a life-sentenced prisoner. On April 2, 1998, this Court rejected both claims, discharged its statutory review of the sentence, and affirmed. Commonwealth v. May, 551 Pa. 286, 710 A.2d 44, 48 (1998).

Appellant then collaterally attacked his conviction and sentence under the PCRA, raising numerous claims of counsel ineffectiveness. An evidentiary hearing was held over the course of two days, during which both of appellant’s former attorneys testified.

Counsel testified to a cogent and consistent strategy for conducting the second penalty hearing, a strategy which had its roots in the events that transpired at the first penalty hearing. Counsel stated they were optimistic because they had managed to eliminate the single aggravator found by the first jury, and the remaining aggravator was one which the first jury had declined to accept. Counsel’s strategy at resentencing, then, centered upon the best way to defeat this aggravator. In the opinion of appellant’s trial lawyers, the best way to achieve the desired sentencing result was to shield the jury from hearing the most damaging trial evidence *224against appellant, which consisted of the testimony of appellant’s signature crime victims, G.S. and S.S. Both counsel characterized the prior victims’ testimony describing appellant’s signature attacks on them as “devastating.” N.T. 2/15/02 at 10; N.T. 4/9/02 at 20. Indeed, in the view of co-counsel Timothy Sheffey, Esquire, appellant had had no realistic chance of avoiding a first degree murder verdict once the court ruled evidence of the prior signature crimes admissible.

As a result of their observations at the first trial, counsel deliberately sought to make the second sentencing proceeding as “sterile” as possible. Attorney Sheffey explained the re-sentencing strategy as follows:

We felt that we had a panel of 12 jurors coming in who had not sat through the first trial, had not heard the evidence. And we felt that if we had an opportunity to avoid the death penalty, we had an opportunity to avoid it by having as sterile a proceeding as possible and not having any witnesses who were going to testify about what they were involved with or what they were subjected to. So the decision that we made was to try to develop as unemotional, antiseptic type of proceeding as possible which we came down to having the judge effectively read into the record the entire presentation [i.e., synopsis of trial facts] at the sentencing hearing because we thought we were going to try to take as much emotion out of the proceeding as possible to try to avoid the death penalty.

N.T. 4/9/02 at 17. Sheffey explained that this strategy also led to the determination not to present live witnesses at the second penalty hearing. Thus, in response to a query as to why they had not presented testimony regarding appellant’s childhood, Sheffey responded:

I think there were a couple of reasons. One, we wanted to avoid having any live witnesses so that if we were going to present live witnesses, then the Commonwealth was going to present live witnesses. If we were to present that type of evidence, there were a number of witnesses that depending on what was presented, the Commonwealth would be able to *225present witnesses. [S.S.] and [G.S.], or at least one of them, was available to testify.

Id. at 18. Sheffey explained that the same consideration played a role in counsel’s determination not to present testimonial evidence respecting appellant’s character. Appellant’s other lawyer, Joseph Farrell, Esquire, corroborated that the strategy adopted for resentencing was “to try and keep it as antiseptic, if you will, as possible.” N.T. 2/15/02 at 11. In light of the strategy they had adopted, both lawyers were pleased when they were able to reach an agreement with the prosecutor to have the judge read a mere narrative summary of the trial facts to the new sentencing jury.

In light of the realities of the case, including the trial court’s evidentiary rulings, the strategy pursued by counsel at resentencing was constitutionally reasonable. A strategy which hammers at a debatable single aggravating circumstance, while blunting the force of the Commonwealth’s most powerful evidence, is surely “a tactical decision about which competent lawyers might disagree.” Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed2d 914 (2002).4

The question of performance on appeal, however, poses different considerations under Strickland, since counsel were free to challenge the propriety of the trial court’s evidentiary rulings. Attorney Sheffey testified that the appeal was primarily his responsibility. Sheffey related that, as a general matter, his theory of appellate litigation leaned heavily upon the well-known writings concerning appellate practice authored by the Honorable Ruggero J. Aldisert of the U.S. Court of Appeals for the Third Circuit. Counsel noted that Judge Aldisert stressed that an effective appellate advocate should attempt to narrow and focus issues for review, and *226“don’t ‘just raise issue after issue after issue;’ instead, ‘[ljimit the number of issues, pick your best, and go with that.’ ” N.T. 4/9/02 at 23.5 Consistently with Judge Aldisert’s teachings, counsel was inclined to raise no more than five issues.

Attorney Sheffey then explained that he thought the Simmons issues he raised had potential merit. On cross-examination, counsel acknowledged that he raised only two issues on appeal and stated that he did not make a tactical decision not to pursue other issues of potential merit, merely to limit the number of issues; rather, he did not see other issues of possible merit. With respect to the court’s ruling that it would sustain a Commonwealth objection to evidence concerning appellant’s childhood on grounds of irrelevance to any statutory mitigating circumstance, counsel stated that he viewed this issue as a discretionary one which this Court was unlikely to overturn on appeal. In addition, counsel reiterated his more overarching concern that any testimony the defense presented concerning appellant’s “character” could be met with harmful rebuttal evidence. The thrust of this observation, presumably, was that the fear of live rebuttal evidence was enough to make counsel shy away from presenting any penalty phase testimony, irrespective of the technical propriety of the trial court’s ruling on admissibility.

Appellant now argues that appellate counsel’s decision not to challenge the trial court’s ruling on the admissibility of evidence concerning his childhood was unsupported by any reasonable basis. Appellant posits that, under the governing law, he was absolutely entitled to present evidence concerning the abuse he suffered at the hands of his father under the “catchall” mitigator; the trial court did not have “discretion” to exclude such evidence. Moreover, appellant notes that the *227concerns which animated counsel’s tactical decisions at the penalty hearing — i.e., how to proceed in light of the court’s (allegedly erroneous) evidentiary rulings — were not an impediment to challenging the propriety of the evidentiary rulings on appeal. Finally, appellant notes that counsel articulated no basis in fact or tactic for failing to pursue this claim, beyond an erroneous and general assertion that the claim involved a discretionary evidentiary decision unlikely to be overturned on appeal.

In my view, counsel’s determination to pursue the Simmons issues on direct appeal was reasonably based. Pennsylvania apparently is one of the few jurisdictions which does not issue Simmons charges as a matter of course; the U.S. Supreme Court has issued a recent decision which seems to expand the Simmons protection, see Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002); the High Court recently granted certiorari in a Pennsylvania case to consider the question of requiring Simmons charges in all capital cases, albeit it ultimately did not reach the claim because it granted relief on a claim of ineffective assistance of counsel, see Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 2461 n. 1, 162 L.Ed.2d 360 (2005); and, indeed, this Court sees Simmons claims routinely raised, presumably so as to preserve the issue for federal habeas corpus review in the event the U.S. Supreme Court ultimately requires such a charge in all capital cases. However, the evidentiary record in this case also makes clear that counsel had no reasonable basis for failing to challenge the trial court’s ruling barring appellant from introducing mitigation evidence concerning the abuse he allegedly suffered at his father’s hand as a child. In light of existing and expansive authority from the U.S. Supreme Court, it is clear that appellant was entitled, if he so chose, to forward evidence concerning this childhood abuse under the so-called “catchall” mitigating circumstance, 42 Pa.C.S. § 9711(e)(8), and the trial court clearly erred, as a matter of law, in ruling such evidence irrelevant. Moreover, under counsel’s own, informed theory of appellate litigation, raising this additional claim of merit would not have diluted the effect of the other *228issues raised; counsel simply failed to appreciate the nature and extent of the trial court’s legal error. Counsel’s lapse in this regard is not objectively reasonable.6

Turning to the question of prejudice, the Majority misperceives the inquiry, as it focuses on trial counsel, not appellate counsel, and indeed goes so far as to conclude that “trial counsel was ineffective” in failing to present mitigation evidence. Majority op. at 213, 898 A.2d at 576. But it was the court’s ruling, not counsel’s trial performance, which barred the mitigation evidence. Counsel’s lapse was on appeal and the proper focus when considering a claim of appellate counsel ineffectiveness obviously must be on the effect of the deficient performance on the outcome of the appeal. On this controlling question, I believe that there is a reasonable probability that, if counsel had raised this claim upon the resentencing appeal, this Court would have remanded for a new sentencing proceeding. This is so, in my judgment, because there was but one aggravating circumstance — which was hotly contested — and the erroneously precluded mitigation evidence was not redundant, but instead would have introduced a distinct statutory mitigator for the jury’s consideration. To be frank, I am not so sure as some others that this sort of childhood information generates sympathy with a jury. As this Court noted in Commonwealth v. Moore, 580 Pa. 279, 860 A.2d 88, 99 (2004), such information “may or may not be perceived as mitigating (one juror may see this as reason for sympathy; another might see it as assuring [the defendant had] his violence permanently ingrained in him)....” Nevertheless, on this record, I am satisfied that the probability of prejudice was not ephemeral. The remedy for this deficient performance is to award a new sentencing proceeding.

*229In summary, I concur in the grant of penalty phase relief upon this claim because a consideration of appellate counsel’s actual performance, in light of the contemporaneous circumstances facing counsel and counsel’s own testimony, convinces me that the representation on the resentencing appeal, objectively viewed, was constitutionally deficient and prejudicial.

Chief Justice CAPPY and Justice EAKIN join this opinion.

. 42Pa.C.S. § 9711(d)(6).

. 42 Pa.C.S. § 9711(d)(9).

. This Justice dissented, viewing the jury foreperson’s lay mistake in failing to qualify "rape” with the word "attempted" as harmless error at most. Id. at 1345-46 (Castille, J., dissenting).

. In Bell, the defendant argued, inter alia, that his attorney rendered ineffective assistance for failing to deliver a closing argument during the penalty phase of his trial. The Supreme Court found no error in the Tennessee Court of Appeal’s rejecting that claim under Strickland, noting that the defense attorney's decision to forgo a closing argument in order to deny the prosecution an opportunity to deliver a graphically descriptive rebuttal of defendant's crimes was a tactical decision on which competent lawyers might disagree. Id.

. This Court has cited to Judge Aldisert’s teachings on appellate advocacy, including his admonition concerning the negative effects of raising too many appellate issues, and thereby diluting one’s better issues. See, e.g., Commonwealth v. Robinson, 581 Pa. 154, 864 A.2d 460, 480 n. 28 (2004) (citing Aldisert, The Appellate Bar: Professional Competence and Professional Responsibility-A View From the Jaundiced Eye of the Appellate Judge, 11 Cap. U.L.Rev. 445, 458 (1982)); Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137, 1140-41 (1993) (same).

. It may be that counsel were not inclined to pursue the issue because they were concerned that childhood evidence would open the door to live-witness rebuttal evidence of appellant’s other crimes. Counsel, however, did not testify that such was their concern and, in any event, the trial court ruling now at issue was premised upon relevance and admissibility, not the availability of rebuttal.