Commonwealth v. Harris

Justice SAYLOR,

concurring.

I am unable to join fully the majority’s treatment of several issues in this appeal and write to explain my primary difference. This concern is with the majority’s approach to Appellant’s claims relating to the Commonwealth’s sole identification witness, Ronald Caison, and in particular, those centered on the fact that the jury did not hear evidence in the guilt phase of trial concerning Caison’s assertedly impaired mental health condition.

*400The majority addresses this claim in a fairly cursory manner, merely noting that counsel cannot be deemed ineffective for failing to introduce records that the trial court excluded from evidence. See Majority Opinion, slip op. at 7. In his statement of questions presented, however, Appellant expressly frames the issue in broader terms, as follows:

Was not Appellant deprived of the effective assistance of counsel, a fair trial, and his right to confront witnesses, under the Sixth and Fourteenth Amendments and the Pennsylvania Constitution, when trial counsel failed to properly establish the predicate necessary for questioning Ronald Caison, the sole identification witness, with his [Caison’s] substantial psychiatric ... history.”

Brief of Appellant at 5, 22 (emphasis added).1 While the development of the issue on such terms in the body of Appellant’s brief is sparse, there are multiple references to the assertion of trial counsel ineffectiveness for failing to secure independent proof of mental infirmity on Caison’s part. See, e.g., Brief of Appellant at 13, 22, 31 n. 19; see also id. at 33 (same, but focused primarily on the claim related to trial court’s asserted failure to develop evidence concerning Caison’s drug usage). As such, I believe that Appellant has done enough to put the issue before this Court on such terms, particularly where he has not been afforded an evidentiary hearing at which to submit his proofs. I make this point only because I believe that, although form is certainly important, particularly in the aftermath of McGill, in which the Court implemented a fairly formalistic set of requirements for layered claims in subsequent cases,2 I understand the Court’s concomitant commitment was to focus more closely on substance with respect to those claims, such as these, that were advanced prior to McGill’s issuance. See generally McGill, 574 Pa. at 590-91, 832 A.2d at 1024.

*401In my view, the weakness of this claim lies in Appellant’s failure, even at the post-conviction stage, to proffer testimony or other evidence that would establish impairment beyond that which was noted in the records derived from Caison’s sentencing proceedings, which were apparently before the trial court at the time that it made its ruling. See N.T., at 66. A post-conviction petitioner, however, has an obligation to supply an adequate proffer in order to secure entitlement to an evidentiary proceeding. See generally 42 Pa.C.S. § 9545(d) (“Where a [post-conviction] petitioner requests an evidentiary hearing, the petitioner shall include a signed certification as to each intended witness stating the witness’s name, address, date of birth and substance of testimony and shall include any documents material to that witness’s testimony.”). As Appellant has offered to prove nothing beyond what the trial court ruled inadmissible on grounds of relevance and hearsay, and did not (in his post-conviction pleadings) raise a derivative claim to preserve any claim of trial court error in terms of such ruling, he failed to establish a basis to support either an evidentiary hearing or relief.

Additionally, it appears to me that the trial court’s ruling was within the boundaries of its discretion, since although that the records from Caison’s sentencing proceedings establish some mental health difficulties, primarily along the lines of a personality disorder, they are unspecific in terms of the effect of these difficulties on Caison’s ability to observe and recall. Accord Commonwealth v. Rizzuto, 566 Pa. 40, 62-64, 777 A.2d 1069, 1082-83 (2001) (framing the essential inquiry concerning the admissibility of witness mental-health evidence in terms of the witness’s ability to observe and remember). In absence of some offer of explanatory, expert testimony, a fair degree of speculation would have been required to close the gap between the proffered records and the witness’s capacity in the relevant respects, thus implicating the trial court’s discretion to disallow the references. Compare, e.g., Commonwealth v. Mason, 358 Pa.Super. 562, 569-71, 518 A.2d 282, 285-86 (1986) (holding that the trial court erred in precluding cross-examination of a crucial Commonwealth witness about his history of *402mental illness, where, in the months between the crime and trial, the witness was hospitalized and diagnosed with schizophrenia, paranoid type with depression, and mild retardation, given the timing of the hospitalization and the nature of the diagnosis). At bottom, in the absence of a specific advancement of relevant and sufficient mental health questions relating to a witness’s testimony, a trial court has no obligation to permit trial proceedings to devolve into collateral inquiries.

. Appellant also separately referenced his layered claim of appellate counsel's ineffectiveness in the statement of questions presented.

. As is fairly clear from the cases preceding McGill, its requirements reflect a compromise of positions advanced by various Justices as to the appropriate threshold presentation required to secure appellate, merits review.