Commonwealth v. Birdsong

Justice SAYLOR,

dissenting.

I cannot join the majority opinion in light of material differences with its rationale. Instead, I would remand for *263appropriate post-conviction review, and I write to the following.

First, Appellant complains that, after multiple remands to obtain an adequate opinion from the post-conviction court, that court employed a near cut-and-paste approach from the Commonwealth’s brief on appeal. To my review, the opinion, at the very least, does test the limits of compliance with a PCRA court’s duty to produce an independent analysis of post-conviction claims. See Commonwealth v. Williams, 557 Pa. 207, 224-25, 732 A.2d 1167, 1176 (1999); see also id. at 254-55, 732 A.2d at 1192-93 (Castille, J., concurring). For example, the first eight pages of the opinion are taken almost verbatim from the Commonwealth’s brief.

Second, the majority suggests that the colloquy attending Appellant’s waiver of his right to a jury penalty verdict was sufficient. See Majority Opinion, op. at 238-39, 24 A.3d at 340. However, the majority downplays material portions of the record highlighted by Appellant, including the apparent suggestion by the prosecutor of a linkage between guilt- and penalty-stage jury waivers, see N.T., Nov. 16, 1998, at 57 (reflecting a motion’s judge’s comment that “the prosecutor goes on and on about if you have a trial by a judge without a jury then you have a penalty phase without a jury, which we all know is incorrect.”),1 and Appellant’s responsive equivocation:

I understand partially. You are saying we waive our right to a jury trial and that’s only a waiver. I don’t think I waive my right to a jury trial on decisions because I don’t know what the decision is yet.

N.T., Oct. 18,1989, at 32.

It may be that Appellant’s claim merits no relief given the weakness of the proofs concerning the reasonable strategy *264and/or prejudice prongs of the ineffectiveness standard, but it seems to me that the analysis should start with a frank acknowledgement that portions of this colloquy are materially confusing. Cf. Majority Opinion, op. at 238, 24 A.3d at 340 (alluding to “some potentially confusing points” in the colloquy).

Third, the post-conviction court and the majority, respectively, repeatedly made and credit findings favorable to the Commonwealth based on highly generalized testimony, disregarding the specific detail provided by the witnesses. For example, the PCRA court indicated that trial counsel made “every effort” to contact family witnesses.2 Indeed, counsel so testified, for example, in response to a leading question by the PCRA court, as follows:

THE COURT: Excuse me. I don’t mean to interrupt. Based on everything [your investigators] told you, do you think that you did everything you possibly could to defend this defendant?
THE WITNESS: Yes.
THE COURT: Fine. What’s the next question?

N.T., Sept. 13,1999, at 36.

The difficulty is that the specifics provided by counsel demonstrated amply that he had little recollection of what actually was done. For example, when confronted with names of specific Birdsong family members, counsel most frequently did not remember any contact:

Q: Do you know if [your investigators] spoke with Herbert [Freeman, Appellant’s stepbrother]?
A: I don’t know.
Q: ... How about George [Birdsong], Junior?
[A:] I don’t know.
*265Q: You don’t know if you spoke with him?
A: Correct.
Q: Do you know if [your investigators] spoke with him?
A: No, I don’t know.
Q: How about Melvin Birdsong?
A: I don’t know.
Q: And that’s either you or [your investigators]?
A: That would be correct.
Q: How about Aserene Birdsong?
A: I don’t know.
Q: And that would be true as to you and the [investigators]?
A: That’s correct.
Q: How about Patricia Birdsong?
A: I don’t have any recollection at this point.
Q: And that would pertain to the [investigators] and yourself; is that correct?
A: That’s correct.
Q: How about Steve Birdsong?
A: I have no recollection.
Q: How about Angela Birdsong?
A: I have no recollection.

N.T., Sept. 13, 1999, at 46-48. The surviving investigator’s testimony was that she was not aware that Appellant had multiple siblings, and she was able to confirm only a brief contact with Appellant’s mother. See N.T., Jan. 4, 2000, at 25-26. Further, trial counsel testified that he could not recall whether he had so much as asked Appellant about his childhood. See N.T., Sept. 14,1999, at 24.

It may be that, in light of the lack of memory and recorded information concerning the investigation, Appellant failed to satisfy his burden of demonstrating an inadequate investigation. On this record, however, I cannot see how the PCRA court’s affirmative finding of “every effort” is rationally supported. Rather, from my perspective, the finding reflects an inappropriate looseness with the record. Furthermore, the *266“every effort” perspective is in tension with the eleventh-hour mental health examination of Appellant — which counsel considered the heart of the penalty phase defense, see, e.g., N.T., Sept. 13, 1999, at 126 — occurring the evening before the penalty hearing. See Majority Opinion, op. at 240-41, 24 A.3d at 341-42.

Next, I differ with the majority’s assertion that the testimony of Appellant’s father would have been cumulative. See Majority Opinion, op. at 254, 24 A.3d at 349. In point of fact, no family member of Appellant’s was offered as a witness at the penalty hearing. Moreover, the truncated life-history presentation (comprised of two direct examinations covering a total of six pages of transcript), and counsel’s brief and substantially generic argument for life (covering three and one-half pages), reflect a disturbing recurrence we have seen in a number of these cases. Cf. Commonwealth v. Sattazahn, 597 Pa. 648, 675-76, 952 A.2d 640, 655-56 (2008) (crediting a post-conviction court’s finding of deficient stewardship relative to a similarly “highly truncated mitigation presentation”); Commonwealth v. O’Donnell, 559 Pa. 320, 347 n. 13, 740 A.2d 198, 214 n. 13 (1999) (“[l]t is difficult to disagree with [the appellant] that a defense which amasses only four pages of transcript simply does not reflect adequate preparation or development of mitigating evidence by counsel representing a capital defendant in a penalty phase hearing.”).3

*267Finally, again without any express examination of specific instances raised by Appellant, the majority asserts that the PCRA court’s interjections into Appellant’s post-conviction case were mostly responsive to post-conviction counsel’s attempts to circumvent court rulings and perpetuate redundancies. See Majority Opinion, op. at 255, 24 A.3d at 350. I do not disagree that there was overzealousness on counsel’s part, but the record demonstrates that counsel’s efforts were, as often as not, responsive to misunderstandings generated by the PCRA court. For example, in the following illustrative passage, the PCRA court complained about the presentation of witnesses to which the Commonwealth had no objection; misdirectedly focused on guilt phase matters when the evidence was addressed to the penalty stage; and mischaracterized Appellant’s claims:

THE COURT: Pm not going to permit you to go into this. You think Judge Stout [would have] decided the case differently if she had known, rather, this defendant had a brother [who] also had an opiate addiction?
[COUNSEL:] Four. Four brothers that had died.
THE COURT: It doesn’t matter. What’s that got to do with this trial? Wait a minute. There was six or seven witnesses who personally identified this defendant as being the shooter and killer of two people.
Now, you have to show somehow that that was not a fair trial before Judge Stout.
[COUNSEL]: Judge, we’re into the penalty phase.
THE COURT: And at the penalty phase, Justice Stout heard all the evidence, not only that, but the Pennsylvania Supreme Court exercising unitary review went into all that and decided that under the evidence presented to the court that this defendant deserved the death penalty. Now you’re trying to show by this testimony of this attorney that for some reason he missed about going into the background and understanding of this man’s past history including his four-year-old and twelve-year-old addiction, etcetera.
[COUNSEL]: Yes, Judge.
*268THE COURT: I think in my view, in my view that is not a pertinent inquiry before this court. Now, the history of his family life under the mitigating circumstances, true, but has to be timely towards sometime toward the time when this event occurred that would somehow have affected his conduct. You have not shown that at all.
[COUNSEL]: Judge—
THE COURT: You have not shown it.
[COUNSEL]: I would need to call Dr. Maher and Dr. Larson to show to you the genetic predisposition.
THE COURT: Are you saying that people who are genetically predisposed, for example, Indians who are high on drugs all the time have more rights in this country than everybody else?
Do they have a right to go around killing people because they can’t get the death penalty because of their background and their drug abuse, but people who are straight and honest and law abiding and they do the shooting, they have to get the death penalty? Is that what you’re saying? [COUNSEL]: No, Judge.
THE COURT: That’s what it sounds like to me. It sounds like you’re trying to somehow classify this case by saying this defendant did not get a fair trial because A, B, C, D, all of the things that you have gone through, which are meaningless in my view.
[COUNSEL]: Well, Judge, I’m trying to say that— [DISTRICT ATTORNEY]: We have no objection to counsel calling these witnesses, Judge, if he thinks this somehow is going to change.

N.T., Sept. 13,1999, at 99-101.

Along these lines, the PCRA court also repeatedly offered up highly generalized interim findings as a means of truncating further testimony. See, e.g., N.T., Jan. 5, 2000, at 160-61 (reflecting the PCRA judge’s remark: “You want me to make a finding of fact right now? He had a very difficult upbringing, right, he was involved in the neighborhood where the gangs were among his brothers and so forth, and this was the *269peer pressure.”). I believe the approach to post-conviction litigation reflected in the above excerpts suggests an insensitivity to the nature of the weighing process in capital sentencing and the high burden borne by prisoners in the post-conviction process.

I do support judicious control of PCRA proceedings by our common pleas judges. Appropriate time limits may be set on presentations; irrelevant matters certainly may be excluded; reasonable interjections may be warranted; and the presumption in favor of the validity of a judgment of sentence is to be enforced. In this instance, however, various of the PCRA court’s own explanations demonstrate a reluctance to extend fair latitude to one bearing the burden attending a challenge to a judgment of sentence in making the necessary record.

At bottom, it is my conclusion that the PCRA court’s approach to this post-conviction case does not reflect the necessary close, judicial review. Hence, I would return the matter to it so that this may be accomplished. I note only that I find this to be a close case, in terms of whether a further remand is warranted, particularly due to the weight of the aggravation, including Appellant’s perpetration of multiple murders.

Justice TODD joins this Dissenting Opinion.

. I note that Appellant’s trial occurred before the Commonwealth acquired its own constitutional right to a jury trial. See Pa. Const, art. I § 6 (as amended Nov. 3, 1998). At present, therefore, as a matter of conditions attached to its own waivers, it appears the Commonwealth may have greater leverage in linking guilt and penalty phase waivers. Cf. People v. Diaz, 3 Cal.4th 495, 11 Cal.Rptr.2d 353, 834 P.2d 1171, 1204 (1992) (accepting the validity of such linkage, in light of the government’s right to a jury trial).

. The majority dilutes the PCRA court’s finding of "every effort” to "effort,” Majority Opinion, op. at 250-51, 24 A.3d at 347-48, presumably in light of trial counsel’s actual testimony, as quoted below. The difficulty with the majority’s reformulation is that there is no accounting for the degree of the efforts involved, which is a necessary consideration in assessing reasonableness.

. I realize that the penalty presentation would have been longer had Appellant permitted the mental health professional to testify. A balanced assessment of this factor, however, would include consideration that Appellant (who undisputedly is of borderline intellect) was afforded very little time to process any information the psychologist was able to provide, and the expert had very little time to generate any trust and rapport with Appellant, as the examination occurred very late in the trial and on the eve of the penalty hearing. Moreover, frequently, a full development of the defendant's life history is necessary to serve as the factual predicate for the mental-health component of the testimony. Additionally, capital counsel bears the obligation to conduct a pre-trial investigation exploring all reasonably available avenues of mitigation. See Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008) (citing Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003), and Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 1514-15, 146 L.Ed.2d 389 (2000)). Accordingly, the failure of a late-trial effort to generate one line of mitigating evidence cannot excuse deficiencies in the investigation and development of others.