concurring and dissenting.
I. GUILT PHASE
With respect to the disposition regarding the guilt phase, I join the Majority Opinion in reversing the Post Conviction *251Relief Act (“PCRA”) court’s order granting Appellant John Lesko a new trial.
II. PENALTY PHASE
With respect to the disposition regarding the penalty phase, I respectfully dissent from the Majority Opinion insofar as it reverses the PCRA court’s order granting Lesko a new penalty hearing. For the following reasons, I would affirm the PCRA court in that regard.
The PCRA court granted Lesko a new penalty trial based on his claims that Attorney Marsh was ineffective for, inter alia, (1) failing to retain a neuropsychologist for the purpose of providing a reliable evaluation of Lesko’s mental health and/or organic brain damage; and (2) retaining a clinical psychologist, but neglecting to provide sufficient preparation time or material collateral information to allow the psychologist to conduct an appropriate evaluation and reach a reliable diagnosis. In doing so, the PCRA court stated:
Three years before the 1995 sentencing, and in anticipation thereof, trial counsel, Mr. Marsh[,] consulted University of Pittsburgh law professor Welsh White with regard to the relationship between child abuse and brain damage. In October 1992, Professor White provided Mr. Marsh with literature on the topic and a sample motion to obtain psychological and neurological testing of the Petitioner. Mr. Marsh recognized that child abuse and neglect were significant factors in the Petitioner’s argument that a life sentence should be imposed, rather than death, and he agreed that evidence of brain damage would be a “very important matter to bring to the attention of the jury.”
Nonetheless, and despite having been advised otherwise, Mr. Marsh retained a clinical psychologist, Herbert Levit, Ph.D., on February 6, 1995, after jury selection had already begun for the second sentencing trial and only three days before the trial commenced. In counsel’s own words, he hired Dr. Levit “on the eve of trial.”
*252Dr. Levit is not a neuropsychologist, and as a consequence, was incapable of conducting a neuropsychological assessment of the Petitioner’s cognitive functioning. Furthermore, Mr. Marsh did not specifically advise Dr. Levit that he had been apprized [sic] of the link between abuse and organic brain damage, and that that may be an area of relevant inquiry. As a result, Dr. Levit conducted a standard mental status examination, which was not designed to detect either cognitive or organic dysfunction.
The inadequacy of Dr. Levit’s evaluation was further exacerbated by the fact that he was hired at the last minute. Within the week prior to the examination, he reviewed a summary report that had been prepared by the investigative firm, Alfonso Associates, and he had telephone conversations with two family members. He did not review any prior psychological or psychiatric evaluations, although he was aware that the records existed. He did not review any of the trial transcripts or any of the discovery materials. He did not review or consider any of the voluminous collateral information in the Children and Youth Services records that contained detailed information concerning the Petitioner’s life history. As a result, based upon limited information, he made an assessment of the Petitioner’s personality, and concluded that the Petitioner suffered from Borderline Personality Disorder and Polysubstance Abuse.
During the PCRA proceedings, the Petitioner presented the testimony of Dr. Barry Crown, a neuropsychologist who testified that both the institutional records and Dr. Levit’s evaluation contained indicia of brain damage that would have been revealed with neuropsychological testing tools and a properly qualified and competent evaluator.
Dr. Crown painstakingly went through the institutional records and noted those entries that would be red flags to anyone who was trained to diagnose the presence of organic brain damage: the Petitioner had an unusual gait, exhibiting some form of psychomotor difficulty at an early age; uninhabitable and deplorable housing conditions (inoperable windows, broken doors, floors falling apart, lead-based *253paint, absence of hot and cold running water, animal and human feces on surfaces in the home, decaying food on the counters and in the refrigerator, and an infestation of insects and flies); general and continuous neglect of the Petitioner’s and his siblings’ health; the Petitioner played with dead rats; and the Petitioner was set on fire by boys in the neighborhood, which resulted in a one-month stay in the hospital. He explained that these facts have neuropsychological significance because the combination of “general neglect” and “a young child under stress, we know ... produces difficulties at critical stages in brain development.” Growing up in deplorable conditions is neuropsychologically significant and constitutes an indicator of brain damage that should be further explored.
The records contained relevant information concerning the Petitioner’s physical well-being and his behavior as a child that were significant to Dr. Crown’s neuropsychological investigation. The Petitioner suffered from childhood insomnia, hyperactivity and headaches; he was described as having “episodic dyscontrol,” a form of organically impaired impulse control; he chronically suffered from inadequate nutrition; his mother was a chronic drinker, indicating the possibility that the Petitioner was subject to fetal alcohol involvement; a long and continuing history of high fevers and ear problems; and multiple indications of head trauma (assaulted by other children and punished aggressively at home).
The records also contained significant references to a long history of drug and alcohol abuse and exposure to environmental toxins. At an early age — as early as 8 years old— the Petitioner started drinking alcohol, huffing over-the-counter toxic substances, experimenting with illegal drugs, and eating paint chips. Dr. Crown explained how damaging it is to the brain to ingest alcohol and other toxins at a young age, when the brain is still developing. Furthermore, he noted that the records disclosed a history of blackouts, which would also indicate a history of alcohol-related brain cell damage.
*254All of the above references in the records were indicators that neuropsychological assessment for brain damage was needed.
In addition to the institutional records, there were numerous red flags in Dr. Levit’s report that indicated that neuropsychological testing should be conducted. The Wechsler Adult Intelligence Scale (“WAIS”) intelligence test that was administered by Dr. Levit revealed significant differences among the test scores both between the Verbal and Performance categories and the inter-test scatter. According to Dr. Crown, both sets of test scatter provided neuropsychologically significant evidence of brain damage. Not only did the test scoring suggest the need for further testing to ascertain the presence of brain damage, but is itself “a pathognomic sign[, mjeaning that it represents the very strong possibility and likelihood of a pathology, of an impairment, of a deficit” and “would be an extremely strong indicator of ... the strong likelihood of organic brain damage.”
Likewise, the results of Dr. Levit’s administration of the Bender Visual Motor Gestalt Test and the House-Tree-Person Test provided data that suggested the need for further neuropsychological testing.
In addition to the psychological test results, Dr. Crown noted that Dr. Levit’s diagnosis of Borderline Personality Disorder raised important issues relating to the possibility of brain damage — the symptoms of Borderline Personality Disorder substantially overlap the behavior manifestations of organic brain damage. Accordingly, Dr. Levit’s diagnosis, although limited, was yet another sign that the Petitioner may be suffering from organic brain damage.
In corroboration of Dr. Crown’s suspicions, the Allegheny County Children and Youth Services records that were not provided to the defense until the April 2002 PCRA hearing, also contained substantial evidence to support a conclusion that further neuropsychological testing of the Petitioner was indicated. Among the indicators were the results of intelligence tests by school psychologists that were significantly similar to the most recent test results, and evidence that the *255Petitioner’s siblings, as well, suffered from brain damage, dysfunction and mental retardation.
On October 28, 1999, Dr. Crown administered a complete neuropsychological test battery to the Petitioner. As a result of the Petitioner’s performance on those tests, Dr. Crown concluded to a reasonable degree of neuropsychological certainty that the Petitioner is brain damaged and was brain damaged at the time of the offense. The Commonwealth did not offer any expert testimony in opposition to Dr. Crown’s diagnosis and was unable to discredit Dr. Crown’s methodology or conclusions on cross-examination. As a consequence of his findings, Dr. Crown determined that, at all relevant times, the type of brain damage from which the Petitioner suffered, and continues to suffer, constitutes an extreme and emotional disturbance (42 Pa.C.S. § 9711(e)(2) mitigating circumstance) and a significant impairment in his ability to appreciate the criminality of his conduct or conform his conduct to the requirements of law (42 Pa.C.S. § 9711(e)(3) mitigating circumstance).
Only after Dr. Levit had an opportunity to review the institutional records, as a consequence of the filing of the PCRA petition and the preparation of the case by new counsel, was he able to recognize the deficiencies in his original evaluation, and recommend neuropsychological testing to confirm the likelihood of brain damage. His new diagnoses and findings included post-traumatic stress disorder; failure to thrive syndrome; substantial impairment in Petitioner’s capacity to appreciate the criminality of his conduct and conform his conduct to the requirements of the law; probable brain damage; and the failure of social services to rescue Petitioner and his siblings from the abject environment in which they were raised.
PCRA Court Opinion, 8/7/06, at 10-15 (record citations and footnotes omitted).
Based on the foregoing, the PCRA court concluded: “the testimony of a neuropsychologist at the sentencing hearing with regard to [Lesko’s] organic brain damage would have added significant additional and relevant information for the jury to consider as it weighed mitigating factors against the *256aggravating factors;” there was no reasonable basis for Attorney Marsh’s failure to present such testimony; and there was a reasonable probability that, but for Attorney Marsh’s ineffectiveness, the results of the penalty proceeding would have been different. PCRA Court Opinion, 8/7/06, at 16. The PCRA court also concluded that Attorney Marsh was ineffective for failing to investigate and present mitigating evidence, including evidence of extraordinary abuse and neglect that Lesko endured as a child. Based on these findings, the PCRA court determined Lesko was entitled to a new penalty hearing.
With respect to the PCRA court’s determination that Attorney Marsh was ineffective for failing to retain the services of a neuropsychologist to present evidence that Lesko suffered from organic brain damage, the Majority finds error in the PCRA court’s analysis because “it placed the burden of an expert’s knowledge on counsel’s shoulders and framed the reasonable strategy question narrowly without considering the course actually pursued by counsel at the resentencing.” Majority Opinion at 186, 15 A.3d at 379-80. The Majority further “caution[s] that, in applying Strickland, courts must be careful not to conflate the roles and professional obligations of experts and lawyers,” noting:
it is telling that Dr. Crown’s testimony at the PCRA hearing was directed at the examination conducted by Dr. Levit and not the strategy of counsel; thus, Dr. Crown opined that the results of some of the testing conducted by Dr. Levit raised “red flags,” which indicated that neuropsychological testing should be conducted. Certainly, these psychological “red flags” could not be directed at counsel, who was unschooled in mental health matters, but were directed at Dr. Levit. In fact, by the neuropsychologist’s own testimony, the diagnosis of Borderline Personality Disorder — a diagnosis made by Dr. Levit, not trial counsel — should have raised a question relating to the possibility of brain damage. Again, such opinions, if valid, may call into question Dr. Levit’s professional performance, but that is not the same thing as providing a basis to fault trial counsel’s legal performance.
Id. at 190, 15 A.3d at 382. I respectfully disagree with the Majority’s determination in this regard.
*257As the PCRA court recognized, Attorney Marsh became aware of the link between child abuse and brain damage after consulting -with Professor White in 1992. Attorney Marsh also was aware that Lesko had been severely abused and neglected as a child, and testified that he knew that evidence of brain damage would be a “very important matter to bring to the attention of the jury.” N.T. PCRA Hearing, 12/14/99, at 134. Notwithstanding this knowledge, and despite the fact that Professor White provided Attorney Marsh with a sample motion to obtain psychological and neurological testing of Lesko, on the eve of trial Attorney Marsh retained a clinical psychologist — Dr. Levit — as opposed to a neuropsychologist to evaluate Lesko.
Moreover, despite the information counsel obtained from Professor White regarding the link between child abuse and brain damage, and despite his knowledge of Lesko’s abusive childhood, Attorney Marsh failed to either alert Dr. Levit of the link between abuse and organic brain damage or suggest that Dr. Levit investigate the possibility of organic brain damage in Lesko. Attorney Marsh also failed to provide Dr. Levit with numerous documents, including records from Children and Youth Services, which, according to Dr. Levit’s own testimony at the PCRA hearing, would have resulted in new or additional diagnoses of Lesko, including probable brain damage and substantial impairment in the capacity to appreciate the criminality of his conduct. See N.T. PCRA Hearing, 12/15/99, at 239-42.
While it is true that counsel cannot be expected to be a mental health expert, and although Attorney Marsh may have been officially “unschooled in mental health matters,” Majority Opinion at 190-91, 15 A.3d at 382, the evidence shows in the instant case that Attorney Marsh was aware of the severe abuse and neglect Lesko suffered during his childhood. Attorney Marsh also had knowledge of the link between child abuse and brain damage, and, by his own testimony, understood the importance of presenting evidence of Lesko’s brain damage to the jury in an effort to avoid a death penalty *258verdict. Indeed, Attorney Marsh had been given related literature, and even a sample motion to obtain neurological testing of Lesko, yet he failed to act. Under such circumstances, I can conceive of no reasonable basis for counsel’s failure to further investigate the matter, including obtaining the appropriate expert and providing that expert with the information known to him. Accordingly, I believe the PCRA court properly concluded that Attorney Marsh had no reasonable basis for failing to retain a neuropsychologist to evaluate Lesko and present testimony regarding organic brain damage.
Next, the Majority indicates that, even if it agreed with the PCRA court that Attorney Marsh’s investigation “was unreasonable and constitutionally deficient, and that there was some basis in law to say that lawyers are obliged to consult neuropsychologists, rather than clinical psychologists,” id. at 388, it does not agree with the PCRA court’s determination that Lesko established he suffered actual prejudice, as required under Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). I likewise disagree with the Majority’s conclusion with respect to this issue.
The Majority opines:
Lesko has not established that the resentencing proceeding was rendered unreliable by counsel’s alleged lapse. This was a jury that found four mitigating factors, relating to two distinct statutory mitigating circumstances. Thus, the jury was engaged in a balancing of aggravators and mitigators, yet voted for death (just as Lesko’s first sentencing jury had). To find Strickland prejudice arising from the failure alleged herein, we must conclude that “there is a reasonable probability that, absent counsel’s failure to present the mitigation evidence he currently proffers, [Lesko] would have been able to prove at least one [more] mitigating circumstance by a preponderance of the evidence and that at least one jury member would have concluded that the mitigating circumstance(s) outweighed the aggravating circumstance(s).”
Majority Opinion at 192-93, 15 A.3d at 383 (citation omitted).
The Majority further reasons:
*259[B]ased on counsel’s presentation, the jury had found that Lesko was under the influence of extreme mental or emotional disturbance, § 9711(e)(2), and it is entirely speculative how much more weight the testimony of a neuropsychologist such as Dr. Crown would have lent to this mitigator already found. Of course, it is possible that opinion testimony on brain damage from a neuropsychologist might persuade a juror that Lesko was unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law under Section 9711(e)(3). But, Lesko must also show that there is a reasonable probability that, in the overall evaluation, at least one jury member would have concluded that the mitigating circumstances outweighed the aggravating circumstances.
Faced with the aggravating circumstances where the defendant has been found guilty of multiple murders occurring within a one-week period, including the cold-blooded murder of an on-duty police officer, and the case in mitigation already successfully presented, we simply cannot conclude that Strickland relief can be premised upon the additional mitigation evidence the PCRA court found would have carried the day. The PCRA court failed to consider the full context of the case in rendering its finding as to Strickland prejudice. We do not believe there is a reasonable probability that further expert opinion evidence, including evidence of Lesko’s “organic brain damage” would have resulted in a different weighing and different penalty verdict when the aggravating circumstances were so patently grave, and the jury already found substantial mitigating factors, only to return with a verdict of death.
Id. at 195,15 A.3d at 384-85 (footnote omitted).
In support of its holding, the Majority cites the recent decision of the United States Supreme Court in Smith v. Spisak, -U.S.-, 130 S.Ct. 676, 175 L.Ed.2d 595 (2010), wherein the Court held that, even presuming the closing argument of the defendant’s counsel at trial was constitutionally inadequate, there was no reasonable probability that a *260better closing argument would have made a significant difference in the outcome. The Majority explains that the Spisak Court, in reaching its conclusion:
considered the context of the case, which included Spisak’s admission and supporting testimony that he committed three murders and attempted to commit two others. The Court stressed that at the time of the sentencing the jurors had fresh in their minds the government’s evidence regarding the killings as well as Spisak’s “boastful and unrepentant confessions and his threats to commit further acts of violence.” The Court also noted that the defense experts’ testimony, which was offered to show that Spisak suffered from a mental infirmity, was fresh in the jurors’ minds; and, the Court did not “see how it could have made a significant difference had counsel gone beyond his actual argument — which emphasized mental illness as a mitigating factor and referred the jury to the experts’ testimony — by repeating the facts or connections that the experts had just described.” Id. at 687-88. Notably, even the concurrence by Justice Stevens, which stressed “how thoroughly egregious counsel’s closing argument was,” ultimately concluded that Spisak was not entitled to relief in light of Spisak’s testimony and his “monstrous” crimes. Id. at 693.
The case sub judice obviously is not on all fours with the situation in Spisak. Most importantly, in this case we consider a claim of an allegedly incomplete mitigation presentation, and not a deficient jury argument. But the opinion is instructive as to how this Court should address the question of prejudice under Strickland. The Spisak Court made clear that the prejudice analysis must be viewed in the context of the case; and in this case, the developed penalty-related facts were grim indeed.
Majority Opinion at 193-94,15 A.3d at 384.
To say that the instant case “obviously is not on all fours” with Spisak is, to my mind, an understatement. In Spisak, the evidence suggesting Spisak suffered from a mental infirmity, which the Court determined had been summarized in a deficient closing argument, had been fully developed and presented to the jury. In the instant case, testimony that *261Lesko suffered from organic brain damage was never presented to the jury, and, thus, the jury did not have the opportunity to consider whether Lesko lacked the ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. In short, Spisak concerned a poor closing argument, whereas the instant case involves a failure to present relevant evidence.
With regard to the Majority’s ultimate conclusion that, in light of the gravity of the crimes, there is no reasonable probability that additional expert testimony, including evidence of Lesko’s organic brain damage, “would have resulted in a different weighing and different penalty verdict,” Majority Opinion at 195, 15 A.3d at 385, as this Court explained in Commonwealth v. Sattazahn,
in terms of prejudice, we recognize that the substantial aggravation advanced by the Commonwealth encompassed Appellee’s commission of the present killing in the perpetration of a robbery, as well as his history of violent offenses including two murders. Nevertheless, the presentation at trial of the credited post-conviction evidence would have provided support for the finding of several statutory mitigators, which also bore upon the degree of Appellee’s culpability in terms of selecting between capital punishment and a life sentence. See Penry v. Lynaugh, 492 U.S. 302, 319,109 S.Ct. 2934, 2947,106 L.Ed.2d 256 (1989) (explaining that “evidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse” (quoting California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 841, 93 L.Ed.2d 934 (1987) (O’Connor, J., concurring))). The absence, due to an inadequate investigation, of substantial, relevant, mitigating evidence diminishes confidence in the outcome of the sentencing proceeding, particularly given the appropriate single-juror frame of reference. See Wiggins [v. Smith, 539 U.S. 510, 537, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) ] (articulating the prevailing standard for assessing prejudice from *262deficient stewardship in the presentation of mitigation evidence in terms of whether “there is a reasonable probability that at least one juror would have struck a different balance”).
597 Pa. 648, 676-77, 952 A.2d 640, 656-57 (2008) (footnote omitted).
In the instant case, the jury found four mitigating factors, relating to two separate mitigating circumstances, namely, that Lesko was under the influence of extreme mental or emotional disturbance, § 9711(e)(2); and the catch-all provision of Section 9711(e)(8). Testimony that Lesko suffered from organic brain damage would have implicated an additional mitigating circumstance — the inability of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law under Section 9711(e)(3) — that had not already been found by the jury. Furthermore, as the PCRA court recognized, because the jury is instructed to engage in a qualitative rather than a quantitative weighing of mitigating and aggravating circumstances, there is a reasonable probability that uncontroverted testimony such as Dr. Crown’s regarding Lesko’s organic brain damage would have resulted in the jury giving greater weight to the Section 9711(e)(2) mitigator in favor of a life sentence. PCRA Court Opinion, 8/7/06, at 22. Accordingly, I cannot agree with the Majority’s conclusion that, even if the jury had been presented with evidence of an additional mitigating circumstance under Section 9711(e)(3), Lesko failed to show there was a reasonable probability that at least one jury member would have concluded that the mitigating circumstances outweighed the aggravating circumstances.
For the reasons discussed above, I find no error in the PCRA court’s conclusion that trial counsel had no reasonable basis for failing to retain a neuropsychologist for the purpose of evaluating Lesko and presenting testimony on organic brain damage. Furthermore, I agree with the PCRA court’s determination that, but for counsel’s ineffectiveness in this regard, there is a reasonable probability that the result of the penalty proceeding would have been different. Accordingly, I believe the PCRA court properly held that Lesko is entitled to a new *263penalty hearing, and I would affirm the PCRA court’s grant of a new penalty hearing on the basis that Lesko was denied his right to effective assistance of counsel. Hence, I dissent from the Majority Opinion to the extent it reverses the PCRA court’s order granting Lesko a new penalty hearing.