Commonwealth v. Miller

Justice SAYLOR,

dissenting.

I dissent, since it appears to me that the majority opinion does not sufficiently address material arguments or conform to prevailing law in a number of areas.

Guilt Phase

Claim I — The majority first rejects Appellant’s claim of deficient stewardship in the investigation and presentation of evidence that the victim was killed in the heat of passion, *65reasoning that, even if Appellant’s additional evidence were credited, “it is clear that the evidence still was insufficient to conclude that the killing was committed in the heat of passion as the record is devoid of evidence that at the time the victim was murdered, Appellant was acting under a sudden or intense passion brought on by the victim.” Majority Opinion at 22, 987 A.2d at 650. The majority’s rationale, however, conflicts with the PCRA court’s (and fact finder’s) reasoning in addressing Appellant’s ineffectiveness claims, in which that court praised trial counsel for doing “an exceptional job of getting evidence and argument regarding heat of passion into the record.” PCRA Court Opinion, slip op. at 29.

In this regard, the majority’s substantive analysis concerning the unavailability of a heat-of-passion defense also does not take into account: whether there is any role for individual characteristics of the defendant in the analysis (such as whether a defendant is mentally retarded or brain damaged); the extent to which the cumulative impact of a series of events may be considered in assessing provocation, see Commonwealth v. McCusker, 448 Pa. 882, 389 & n. 8, 292 A.2d 286, 289 & n. 8 (1972); or various of the actual events alleged by Appellant and, to one degree or another, reflected in evidence of record. These include Appellant’s release from incarceration a short time before the killing; his initial residence with his mother; Appellant’s daughter’s, the victim’s, and her sister’s alleged efforts to entreat him back into a relationship •with the victim; Appellant’s emotional uncertainty but eventual acquiescence; the service of a support order on Appellant on the day of the killing; the allegation that the victim previously had aborted another man’s child during the marriage; and/or the number and nature of the victim’s wounds, which tend to support his theory that he lost control.1 I also differ with the majority’s characterization of the above circum*66stances, to the degree they might be accepted by a fact finder, as being analogous to “a history of minor disputes and allegations of past infidelity.” Majority Opinion at 22, 987 A.2d at 651.

For the above reasons, and in the absence of a more directed assessment of Appellant’s arguments as summarized above, I am unable to join the majority’s disposition of the first claim.

Claim 2 — The majority next rejects the claim that trial counsel was ineffective for failing to investigate and present expert testimony to rebut the Commonwealth’s assertion that the victim was raped, crediting trial counsel’s belief that “the evidence made it pellucidly clear to him that no rape occurred and ... his belief that anyone who reviewed the evidence would draw the same conclusion he did.” Majority Opinion at 26, 987 A.2d at 653. The difficulty with trial counsel’s, and the majority’s, position is that counsel’s beliefs proved to be demonstrably erroneous, as a Commonwealth expert witness described the killing as a “classic rape-homicide” and the fact finder correctly found “ample evidence to prove that a rape occurred even without Dr. Callery’s testimony,” PCRA Court Opinion, slip op. at 10, with this Court confirming on direct appeal that the verdict on the offense of rape was consistent with the evidence. See Commonwealth v. Miller, 555 Pa. 354, 367-68, 724 A.2d 895, 901 (1999). Moreover, hindsight is not required to question counsel’s confidence, as well as his corresponding decision to forego further preparation, in light of the circumstances surrounding Appellant’s crimes, where there was undisputed evidence of intercourse and substantial circumstantial evidence of forcible compulsion. Indeed, at least in the absence of the assessments provided by Appellant’s post-conviction experts, it is difficult to consider trial counsel’s belief that no fact finder would render a verdict of guilt on the rape charge to be rational, let alone reasonable.

Claim 5 — Claim 5 concerns Appellant’s challenge to the PCRA court’s refusal to permit Dr. Callery to testify in the post-conviction proceedings that he did not hold the opinion that a rape had occurred to a reasonable degree of scientific certainty. The majority indicates that “[tjhere is no indication *67in the record that Dr. Callery would have advised trial counsel before the trial commenced that it was his belief that no rape occurred if only trial counsel had interviewed him.” Majority Opinion at 36, 987 A.2d at 659. The majority’s reasoning, however, is unresponsive to the argument presented. Appellant’s argument is that trial counsel failed to adduce that Dr. Callery did not hold his opinions to the requisite degree of scientific certainty to justify their admission into evidence. See Brief for Appellant at 39-42. Appellant supports his contention, inter alia, with the testimony of post-conviction experts and Dr. Callery’s own declaration indicating:

3. In my view, the evidence in this case that I reviewed, and was aware of, is plainly consistent with any of the following scenarios: that intercourse occurred before Ms. Miller was killed and then she was killed; that intercourse occurred while she was being stabbed; or that intercourse occurred after she had been killed.
4. Because of the number of plausible scenarios, I do not hold the opinion to a reasonable degree of medical and scientific certainty that Ms. Miller was killed while the assailant was engaging in sexual intercourse with her. I cannot state to a reasonable degree of medical and scientific certainty that Ms. Miller was raped at or around the time she was killed. To the extent that my testimony in this case appears to conflict with any of these conclusions, my actual opinion at the time of trial is stated in this affidavit.
7. Mr. Miller’s trial attorney did not interview me before I testified in Mr. Miller’s case. If he had, I would have told him the things I say in this affidavit and testified to them on the witness stand.

Declaration of Richard T. Callery, M.D., dated January 26, 2005. I cannot support a disposition based on an inaccurate characterization of a claim.

Penalty Phase

Claim 8 — In resolving Appellant’s claim that his trial counsel was ineffective for failing to investigate and present avail*68able mitigating evidence during the penalty hearing, the majority initially appears to approve trial counsel’s investigation. See Majority Opinion at 47-49, 987 A.2d at 666-67. Trial counsel testified, however, that he did not obtain various available life history records; he interviewed only two family members prior to trial; he interviewed another for the first time in the courthouse prior to his testimony; he did not obtain a copy of the file for the domestic relations case involving Appellant and the victim; and he did not consider investigating the psychiatric significance of his client’s claim to having suffered a blackout during the course of the killing. N.T., October 27, 2003, at 22-32, 100. It therefore seems apparent to me from the record that counsel acquired a rudimentary knowledge from a narrow set of sources, a practice disapproved by the United States Supreme Court. See Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 2537, 156 L.Ed.2d 471 (2003).

The majority next couches the post-conviction evidence as merely cumulative of the evidence presented at trial. See Majority Opinion at 47-49, 987 A.2d at 666-67. I believe, however, there are qualitative differences in the evidence which should be recognized. In my view, the post-conviction evidence presented a better case for life than that which was presented at trial, particularly in terms of the depth of the explanatory-type mitigation presented through the experts.2

The majority also credits trial counsel for presenting Appellant’s written “background history and statement” concerning Appellant’s life history, the abuse Appellant observed and was subject to while growing up, as well as evidence of his drug use. See Majority Opinion at 47-49, 987 A.2d at 666-67. The majority, however, ignores Appellant’s substantial argument, as follows, that the document, in fact, was materially prejudicial:

[T]rial counsel affirmatively harmed Appellant by presenting to the Court a “statement” hand-written by Appellant which could not possibly have aided Appellant in his case for life. The statement ... contained numerous profanities and *69was interpreted by the trial court in its sentencing deliberations as shifting the responsibility for the incident to the deceased. Such a statement, presented in a vacuum and without any psychiatric explanation for the paranoia and rage that developed in Appellant during his formative years, could easily have been construed by the court as both disrespectful and void of remorse.[fn] In fact, in its sentencing decision, the lower court stated “I also take note of the total lack of remorse of the defendant in connection with the homicide ... [I]t troubles me that the defendant has expressed no remorse whatsoever in connection with this crime. And in fact, that in the penalty phase of the hearing, the letter that was handed up basically implied that most of the fault belonged on the victim in connection with this matter.” NT 10/27/97, at 10-11.

Brief for Appellant at 86-87 (emphasis in original).

In line with Appellant’s argument, a review of Appellant’s statement confirms that the strategy of presenting it to a fact finder was seriously misguided, because the statement contains a multitude of inflammatory remarks. For example, it is replete with blame cast upon the victim, which the trial judge conveyed both at sentencing and in the post-conviction proceedings was offensive. See, e.g., N.T., October 28, 2003, at 383 (reflecting the trial/PCRA judge’s comment, “I’m not going to sit here and listen to this woman be trashed just to present this heat of passion defense mitigated testimony.”). Further, although trial counsel was attempting at the penalty hearing to portray the killing as having occurred in the heat of passion, the statement starkly reflects a far deeper and more entrenched disregard, on Appellant’s part, for the victim’s life. See, e.g., N.T., October 2,1997, Ex. D-4 (reflecting Appellant’s description of a prior assault upon the victim, stating, “This is when I put the gun to Sherry’s head and she was lucky she didn’t die that day cause I was pissed.”). Similarly, in addressing an incident at a bar, Appellant indicates he told a man “if you yell anymore at the women I’m going to ram my *70pool stick down your throat.” Id. Particularly when considered in light of the note Appellant penned in the aftermath of the killing, the “background history and statement” suggests deep-seated violent, volatile qualities, in substantial tension with the defense theory of an isolated, sudden, uncontrollable rage experienced by an otherwise non-violent individual.3 It is difficult to envision why any competent attorney would put such a statement before the fact finder in the form in which it was presented.

With regard to the distinct matter of trial counsel’s failure to obtain a copy of the support order during his penalty investigation, the majority indicates, “Appellant failed to establish that he had knowledge that a support order had been issued against him.” Majority Opinion at 61, 987 A.2d at 668. I believe it should at least be acknowledged, however, that Appellant discussed the support order and its impact upon him in his handwritten statement presented to the trial judge at the penalty hearing. See N.T., October 2, 1997, Ex. D-4. Thus, there was some evidence (albeit of questionable quality) of knowledge on Appellant’s part.

The majority also relies substantially on Commonwealth v. Stevens, 559 Pa. 171, 739 A.2d 507 (1999). See Majority Opinion at 50-52, 987 A.2d at 668-669. Stevens, however, predated the United States Supreme Court’s decisions in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), and Wiggins, 539 U.S. at 510, 123 S.Ct. at 2527, which a number of Justices have indicated reflect a different set of standards than were (and perhaps are) being applied in at least some of our decisions, such as Stevens. This implicates the divide concerning the application of Williams and Wiggins in Pennsylvania, as reflected in Commonwealth v. Romero, 595 Pa. 275, 938 A.2d 362 (2007) (plurality in relevant regard). Compare id. at 318-19, 938 A.2d at 387-88 (indicating that “[pjrior to Williams and its progeny, case law regarding what is required of counsel during the penalty phase was not as exacting as today” and declining to apply Williams and *71Wiggins to cases litigated prior to their issuance), with id. at 335-37, 938 A.2d at 398-99 (Saylor, J., concurring and dissenting) (advancing the position that Williams and Wiggins apply to prior cases, as the decisions were rendered in the post-conviction context and the United States Supreme Court explained in Wiggins that it made no new law).

In summary, I do not agree with many of the reasons presented by the majority in support of its decision to affirm the penalty verdict. Moreover, although the PCRA court’s analysis may implicitly suggest it would not have rendered a different verdict had the post-conviction evidence been presented to the court at the penalty hearing, I do not agree with the majority that such a finding is explicit in the opinion. See Majority Opinion at 49 n. 18, 987 A.2d at 667 n. 18.

Furthermore, the PCRA court’s opinion embodies a looseness which is inconsistent -with our requirements in capital post-conviction cases. For instance, in its finding that Dr. Armstrong’s post-conviction testimony was merely cumulative of the testimony of Dr. Cooke, which was presented at the penalty hearing, the PCRA court indicates that the testimony of both experts reflected the same mitigating circumstance, which it described as a lack of capacity to appreciate criminality and conform conduct to the requirements of the law, 42 Pa.C.S. § 9711(e)(3). See PCRA Court Opinion, slip op. at 38.4 The material passage of the opinion, however, fails to recognize that the testimony given by Julie B. Kessel, M.D., psychiatrist, lends support to Appellant’s claim of an additional mitigator, namely, that he was under the influence of extreme mental or emotional disturbance at the time of his crimes, 42 Pa.C.S. § 9711(e)(2). See, e.g., N.T., October 29, 2003, at 548. Therefore, the basis for the PCRA court’s conclusion on the matter is erroneous. See generally Commonwealth v. Beasley, 600 Pa. 458, 489-90, 967 A.2d 376, 395 (2009) (commenting on material imprecision in the decision-*72making of a capital post-conviction court in connection with a remand, indicating, “We intend to provide an orderly system of post-conviction adjudication that produces fair and just results, anchored upon governing law and rational reasoning.”).

. In the statement presented to the trial judge at the penalty hearing, and in his conversations with the penalty-phase and post-conviction experts, Appellant also related that the event immediately precipitating the killing was the victim's indication — just after having engaged in sexual relations with Appellant — that he was to leave the marital residence and that another man would be moving in with her. See N.T., October 2, 1997, Ex. D-4; N.T., October 29, 2003, at 446.

. It is a separate question, discussed below, whether the degree of difference is enough to justify a finding of prejudice. Presently, my focus is on the majority’s cumulativeness determination.

The presentation of this letter is so tactically harmful that one wonders if counsel read it before handing it over to the judge.

. The statement also reflects that Appellant was an apparently unrepentant drug dealer.

. The actual formulation of the mitigator is: "The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired." 42 Pa.C.S. § 9711(e)(3) (emphasis added).