Commonwealth v. Birdsong

Chief Justice CASTILLE,

concurring.

I join the Majority Opinion, subject to the qualifications I express in Part II below, addressing points made by Mr. Justice Saylor to which the Majority does not respond. However, I write primarily to address the Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) remand, since the presence of that additional issue, which was ultimately *256abandoned, caused substantial delay in the disposition of this appeal, and the circumstances here speak to broader issues of delay in cases where the Federal Defender has volunteered itself into state collateral proceedings.

Appellant, like so many capital defendants who appear before this Court on PCRA1 appeals, is represented by federally-financed volunteer counsel associated with the Philadelphia Federal Defender, his primary lawyer being Billy H. Ñolas, Esq. The Federal Defender burdened both the PCRA court and this Court with typically indiscriminate and prolix pleadings in this case, a case involving a bench trial where the evidence of guilt for appellant’s savage crimes — including two murders, the brutal rape and sodomization of a teenage girl, and the serious wounding of six other victims — was overwhelming. Not surprisingly, none of appellant’s claims goes to his guilt or innocence.

Appellant filed his initial PCRA petition in April 1997. That petition was 154 pages long and lodged sixteen primary claims. After the PCRA court dismissed the petition on April 11, 2001, counsel appealed and filed a Pa.R.A.P. 1925(b) statement, listing twenty-nine questions for review, including “[w]hether all prior counsel (including trial and appellate counsel) provided ineffective assistance insofar as they failed to investigate, develop, and present the issues in this case?” Counsel ultimately filed a 90-page principal brief, which was effectively much longer since it included 83 single-spaced footnotes, and counsel decided not to mention the trial facts. Counsel raised ten principal issues and numerous sub-issues. Counsel later added a claim that his client was mentally retarded and therefore was ineligible for execution under Atkins.

-I-

The pendency of the Atkins claim delayed this appeal for years, as the Majority details. Ultimately, this Court was forced to remand the matter on August 20, 2007, for the *257PCRA court to determine the Atkins merits. Sixteen months later, however, on December 12, 2008, the PCRA court entered an order, which reads as follows:

Defendant withdraws his Atkins/Miller claim (against advice of counsel). Defendant also withdraws all claims with regard to conflict of interests (with present counsel) and ineffectiveness (of present counsel) and wishes his appeals to proceed with current counsel on all other issues already presented.
This Court having no further jurisdiction, the case is sent back to the Supreme Court for further proceedings.

Given the delay occasioned by the pendency of the Atkins claim in this case, ongoing concerns with delay in capital cases generally, and what now appears to be a recurring issue of Atkins delay in Defender cases,2 the circumstances of the withdrawal here require consideration.

First, the transcript below reveals that the Atkins claim was not withdrawn over the objection of counsel. Rather, Attorney Ñolas represented to the court that withdrawal was “not the decision I would make,” but since appellant wanted the claim to be withdrawn, and had so “instructed” counsel, “therefore, we would agree with him to withdraw the claim relating to mental retardation.” N.T. 12/12/08, 4-5. Query: even if the client is embarrassed by an Atkins claim, or is set against it for some other reason, since the claim is the ultimate penalty phase winner, involving death eligibility under the Eighth Amendment, how can a lawyer withdraw such a claim, if arguably meritorious? Which raises the question: was this Atkins claim colorable, or was it baseless all along?3 Here is what the record reveals.

*258Before the Atkins hearing was held, in September of 2008, appellant, acting pro se, sent a letter to the PCRA court (Exhibit C-2 in the PCRA hearing) and two motions (Exhibits C-l and C-3).4 The motions sought (1) to remove counsel and (2) to proceed pro se and to withdraw the Atkins claim, respectively. The court forwarded copies of the letter and the motions to defense counsel and the Commonwealth. N.T. 12/12/08, at 9. Appellant’s letter to the PCRA court detailed the reasons why he was upset with his counsel for pursuing the Atkins claim. Appellant began by asking the judge for direction on how to file a misconduct complaint against the Federal Defender. He then outlined his complaint concerning the Defender’s pursuit of the Atkins claim with a remarkable level of detail, as follows (verbatim): *259Concerning mitigating penalty phase issues or they want you to plea guilt to mitigation issues for a life sentence in prison, or to say I am mental retarded even when you tell then you are not tell me how a person like me come on death row and become retarded when I own and operation a Real State office and have own many of property, and a grocery Store in the Philadelphia area, they will get very angry at you. they will not response to your legal mail will go in the trash, if you look at my appeal docket sheet Wycoff is the first one. the lawyer will even go so far as not to tell you if Pennsylvanian Supreme Court make a big ruling or a decision in your case this is life or death they are playing with, the only way the black inmate know is when the state sign our death warrant this is not right, as you well aware Capital Case have only 90 days before there warrant is sign this do not happened to white inmate they know immediate about there case.

*258Lawyers like Billy Ñolas, Pa. bar No ... and David Wycoff, Pa. bar No. ... they treat us black people like we are a bunch of mental retarded here on Death Row. every black inmate case they represent have a mental retardation issues please investigate the records for yourself, all black is not dumb or stupid or retarded, we just didn’t have opportunity as other had in life, when a black death row inmate disagree with the lawyer they automatic turn there back on us. this don’t happened with the white inmate on death row. if a black inmate disagree with Mr. Ñolas and Mr. Wycoff

*259The problem is the lawyers visit my whole family in Atlanta Georgia and use a intimidated tactic on my old mother and told them the state is planed on execution your son soon, if your family do not help and testify this is the only way to save Ralph life, you must come to court and testify that your son was always slow mental and some what retarded growing up.

Billy Ñolas purposely put on perjure testimony in court when he scared my family into falsify testify that I was retarded, my family will come back to court and testify under oath the lawyer told them to lie and help save my life, also the lawyer told me they set me up with appointment to see a Dr. Michael Scott Maher, psychiatrist from Florida, the lawyer told me when I see him pretend and act like I am mental slow and retarded for Dr. Moher, and act like I can’t read or write basic act dumb to the Doctor. I am willing to testify to this in court and as well my whole family, also I am willing to let the State or Commonwealth psychiatrist to see me and visit me any time.

My questing is what avenue can I take to avoid being abuse and mistreated I been abuse all my life by attorneys I *260am tired of it. do you have any form to fill out, I am requesting a full investigation on the State and Federal level.

At the Atkins withdrawal hearing on December 12, counsel withdrew the Atkins claim and appellant was questioned to determine whether he understood and agreed with the decision to withdraw. Appellant also withdrew his complaints about the Defender. Notably, however, appellant never disavowed any of the factual representations he had made, and Attorney Ñolas said only that appellant’s letters “speak for themselves” and that the Defender “would never contradict something that a client says.” N.T. 12/12/08, at 12-13. Appellant stated that his complaints about counsel “was sort of like in-house complaints ... but now, now I am satisfied with what they done so far”; appellant then stated that he “withdrew” the complaint, and he would “rather” have Attorney Ñolas represent him. Id. at 13-15. The Commonwealth attempted to examine appellant on the representations in the letter, which suggested both a conflict of interest and serious misconduct upon the part of the defense in attempting to manufacture a false Atkins claim. The Commonwealth was cut off by an objection by Attorney Ñolas, which the court ultimately — and unfortunately — sustained.

This is a very serious matter. This case has literally been delayed for years based upon an Atkins claim that was posed by the Federal Defender as if it had merit, which was then withdrawn by counsel immediately after the Defender’s client complained to the trial court, not just that he disagreed with pursuing the claim, but that it was a sham. I realize that, given that the court sustained Attorney Nolas’s objection, there have been no factual findings below concerning the accuracy of appellant’s allegations of lawyer misconduct, and thus, notwithstanding the remarkable level of detail, appellant’s letter may have contained a multitude of falsehoods. But, there is something questionable here which suggests that, even if there was not an active subornation of perjury, there was never a colorable Atkins claim. What is not subject to question is that a substantial delay was injected into the case *261by the Defender’s pursuit of the dubious issue. The fact of delay in capital PCRA appeals, and the reasons for delay, have been made supremely relevant by the Defender litigation strategies I described in my concurrence in Commonwealth v. Spotz, 18 A.3d 244, 330 (Pa.2011) (Castille, C.J., joined by McCaffery, J., concurring), where I noted, among other points, that the Defender had filed a federal Motion in Commonwealth v. Dougherty, 585 CAP, forwarding a global claim that this Court was “incapable of managing its capital docket.” In addition to various factual misrepresentations, the Defender’s federal motion blamed the Pennsylvania courts for state court delays in capital PCRA matters, without acknowledging the delays its litigation strategies had ensured in the very cases it cited. It is beyond coincidental, I suspect, that the reported cases detail at least two other instances where the Defender has raised Atkins claims, and then taken measures to avoid their determination. Spotz, 18 A.3d at 340-42, 345-47 (Castille, C.J., joined by McCaffery, J., concurring), (discussing Atkins delays in Commonwealth v. Bracey, 604 Pa. 459, 986 A.2d 128 (2009) and Commonwealth v. Porter, 557 CAP (pending)). The Atkins delay here confirms the concerns I outlined in Spotz regarding the systemic abuses inflicted upon Pennsylvania’s state courts by the Defender’s litigation strategies in capital cases.

-II-

Turning to the concerns expressed by Justice Saylor, I have conducted my own independent review of the record, including the extensive proceedings in the PCRA court. Justice Saylor has accurately noted superficialities and weaknesses in various rulings and findings below, and in the Court’s review analysis here; and has highlighted some examples of problematic issues. On the other hand, as I have detailed in Spotz, I am mindful of the burden placed on the PCRA courts, and on this Court, by both the prolix filings of the Defender and their dubious litigation tactics, as revealed by the progress of the Atkins claim here, and the Defender’s conduct at the PCRA hearing. I agree that a more particularized approach should *262be followed by our PCRA courts and by this Court on review, at least respecting claims that are not obviously baseless. But, I do not believe that the PCRA trial courts, or this Court, can or should have allocations of resources determined by the Defender’s litigation strategies. This is a delicate balance. In my view, the briefing reforms I suggested in Spotz, coupled with commensurate pleading reforms at the trial level to protect PCRA courts from abusive pleadings, may be the best way to ensure reasonable and rational review of non-frivolous claims.

Having said this, and respecting the claims of concern to Justice Saylor, my own review of the record convinces me that appellant was given a fair opportunity to identify and develop his collateral claims, that there is no impediment to this Court deciding the appeal now, and that appellant clearly is not entitled to relief. Given the criminal conduct at issue (two killings, six additional wounded victims, rape, and other lesser offenses), and the overwhelming evidence, this was a difficult capital case for any trial attorney. Appellant plainly had a fair bench trial before Judge Stout. His various collateral claims either lack merit — including those instances where he seeks to fault counsel for his own decisions — or he has not come close to showing a reasonable probability that the result of the trial, or the penalty proceeding, would have been different but for the lapses that he attributes to his counsel. With particular respect to the penalty phase, I conclude that the nature and strength of the aggravators alone (significant history of violent felonies and multiple murders) militate against an award of Strickland relief. See Commonwealth v. Lesko, 15 A.3d 345 (Pa.2011) (Strickland claims premised upon inclusion of additional mitigation evidence unlikely where defendant has been found guilty of multiple murders); Commonwealth v. Puksar, 597 Pa. 240, 951 A.2d 267, 293 (2008) (establishment of multiple murders aggravator may be enough to render verdict of death a “formality”).

. Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq.

. See Commonwealth v. Spotz, 18 A.3d at 340-42, 345-47 (Pa.2011) (reargument pending) (Castille, C.J., joined by McCaffery, J., concurring), (discussing Atkins delays in Commonwealth v. Bracey, 604 Pa. 459, 986 A.2d 128 (2009) and Commonwealth v. Porter, 557 CAP (pending)).

. Many courts, including this one, have recognized that Atkins claims are particularly susceptible to, and invite, manipulation. Justice Scalia noted the problem in his dissent in Atkins: "One need only read the definitions of mental retardation adopted by the American Association *258on Mental Retardation and the American Psychiatric Association ... to realize that that the symptoms of this condition can readily be feigned. And whereas the capital defendant who feigns insanity risks commitment to a mental institution until he can be cured (and then tried and executed), ... the capital defendant who feigns mental retardation risks nothing at all." 536 U.S. at 353, 122 S.Ct. 2242 (Scalia, J., joined by Rehnquist, C.J. and Thomas, J., dissenting) (citations omitted); see also Commonwealth v. Vandivner, 599 Pa. 617, 962 A.2d 1170, 1187-88 (2009) (quoting with approval trial court’s recognition that "[a] second rationale for the 'age of onset’ requirement [in the test for mental retardation] is to ensure that defendants cannot feign mental retardation after being charged with a capital crime."); accord, e.g., State v. Grell, 212 Ariz. 516, 135 P.3d 696, 702 (2006) (Atkins claimant "has significant motivation to attempt to score poorly on IQ test"); Bowling v. Commonwealth, 163 S.W.3d 361, 376 (Ky.2005) (reality of facing death penalty can cause scores to be "significantly skewed” by depression, tension, anxiety, and motivation to malinger).

. The letter is dated September 11, 2008, and marked received by the trial court on September 17th.