[J-73-2013]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 675 CAP
:
Appellant : Appeal from the Order entered on
: 06/28/2012 in the Court of Common Pleas,
: Criminal Division of Philadelphia County at
v. : No. CP-51-CR-0933912-1986
:
: SUBMITTED: August 29, 2013
RICHARD HACKETT, :
:
Appellee :
OPINION
MR. JUSTICE STEVENS DECIDED: August 18, 2014
Following our remand in this capital case, the Commonwealth appeals the order
of the Court of Common Pleas of Philadelphia County granting Appellee Richard
Hackett’s petition pursuant to the Post Conviction Relief Act (PCRA). 1 Upon
determining that Appellee has proven that he is “mentally retarded” as defined by this
Court in Commonwealth v. Miller, 585 Pa. 144, 888 A.2d 624 (2005), and thus, is exempt
from execution in accordance with the United States Supreme Court’s decision in Atkins
v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the PCRA court set
aside Appellee’s death sentence. As the PCRA court made findings which are not
supported by substantial evidence of record and made an error of law by improperly
equating borderline intellectual functioning with mental retardation (intellectual
1 42 Pa.C.S. § 9541-9546.
disability),2 we reverse the PCRA court’s order vacating Appellee’s death sentence and
dismiss his petition for collateral relief.
I. FACTS AND PROCEDURAL HISTORY
The Commonwealth charged Appellee with first-degree murder, conspiracy, and
related offenses and notified him of its intent to seek the death penalty in connection with
the 1986 death of sixteen-year old Maureen Dunne, who was brutally stabbed while she
lay sleeping in bed with her boyfriend, Gregory Ogrod.3 At Appellee’s 1988 trial, the
Commonwealth presented evidence that Appellee orchestrated a conspiracy to kill the
victims with Marvin Spence, James Gray, and Keith Barrett. In the early morning hours
of July 31, 1986, three men entered Ogrod’s home and repeatedly stabbed the couple
and clubbed them with crowbars. Despite this unforeseen attack, Ogrod got up and
fought off his assailants. Nevertheless, Dunne died from a stab wound to the heart.
As the perpetrators fled, Ogrod recognized Spence as one of his attackers. Appellee,
who lived in Ogrod’s home, knew Ogrod and Dunne were sleeping in the basement and
was the only person, aside from Ogrod and his brother, who had a key to the home.
2 Although the term “mental retardation” was previously accepted by the professional
community and routinely employed in decisions reviewing challenges under Atkins, the
United States Supreme Court recently approved the replacement of the term “mental
retardation” with the more politically correct phrase “intellectual disability” to describe the
identical diagnosis. Hall v. Florida, ---U.S.---, 134 S.Ct. 1986, 1990 (U.S. May 27,
2014). The Hall Court noted that the impetus for the shift in its language was the
American Psychological Association’s decision to implement the new term into the fifth
edition of its Diagnostic and Statistical Manual of Mental Disorders (DSM-5), which was
published in May 2013. While we acknowledge the change in nomenclature, we note
that as this case was litigated before Hall was decided, the parties and their experts used
the prior term frequently to distinguish between learning disabilities and mental
retardation in order to specifically diagnose Appellee’s mental condition. To avoid
confusion under these particular circumstances, we will use the terms interchangeably
within this opinion.
3 The facts underlying Appellee's conviction were set forth in this Court’s opinion on
direct appeal. See Commonwealth v. Hackett, 534 Pa. 210, 627 A.2d 719 (1993).
[J-73-2013] - 2
Although evidence showed Appellee and Spence directed the conspiracy, the
men wanted Ogrod killed for different reasons. Appellee’s aversion towards Ogrod
developed in the spring of 1986 after Ogrod’s brother invited Appellee to live in the home
he and Ogrod shared. Even though Appellee managed to live there rent free and
stored equipment for his landscaping and snow removal business in Ogrod’s garage,
Appellee did not get along with Ogrod. When Ogrod asked Appellee to move out in July
1986, Appellee threatened to throw Ogrod out of his own home if he did not “cool out.”
Several days later, Appellee moved all of Ogrod’s belongings from his bedroom to the
basement without his permission. In contrast, Spence wanted Ogrod killed as a result
of a drug-related dispute. Once Appellee and Spence discovered their shared hatred
for Ogrod, they worked together to bring their plan to have Ogrod killed to fruition.
Appellee initially sought to hire an assassin to murder Ogrod. Appellee first
contacted Edgar Torres to find a hitman “to bump someone off for money.” When
Torres asserted this task would cost him considerable money, Appellee assured Torres
he would pay. Appellee subsequently gave Torres photographs of the victims and met
with alleged assassins. Eventually, Torres told Appellee he could not find an individual
for the job and refused to participate in Appellee’s plan. Appellee and Spence offered
another potential hitman named David Carter $5,000 to kill Ogrod and Dunne. While
Carter initially agreed to this plan, Appellee and Spence’s contract with Carter fell
through as the men could not agree on the manner in which Carter would kill the victims.
At trial, several witnesses connected Appellee to the attack on Ogrod and Dunne,
which occurred at 4:00 a.m. on July 31, 1986. Jeffrey Horoschak stated that when he
called Ogrod’s home at 1:45 a.m. that morning, Appellee told him Ogrod was asleep.
Edward May testified that at 3:30 a.m., he gave a ride to Spence, Barrett, and Gray to a
location near Ogrod’s home, where the men met with a fourth individual who resembled
[J-73-2013] - 3
Appellee and drove a truck similar to the one Appellee owned. Appellee’s girlfriend,
Wendy Rosenblum, testified that, at 5:00 a.m., Appellee called to tell her Ogrod was
dead and came to her apartment through the basement, visibly shaking and sweating.
Appellee’s subsequent conduct suggested he had facilitated the attack.
Rosenblum claimed Appellee asked her to tell police he had been at her apartment all
night and ordered her to obtain and destroy the photographs of the victims he had given
to Torres to identify the individuals he wanted killed. Rosenblum stated that, a week
after the murders occurred, she saw Appellee take a crowbar out of the basement of her
apartment, conceal it in his pants, and throw it in a nearby dumpster.
At the conclusion of the trial, the jury convicted Appellee of murder, conspiracy,
aggravated assault, and possession of an instrument of crime. At the penalty hearing,
the jury found two aggravating circumstances as Appellee conspired to pay another
person to kill the victims and created a grave risk to Ogrod during the attack. See 42
Pa.C.S. § 9711(d)(2),(5). Finding no mitigating circumstances, the jury sentenced
Appellee to death on July 17, 1988, which this Court affirmed on June 30, 1993.
Commonwealth v. Hackett, 534 Pa. 210, 226, 627 A.2d 719, 727 (1993). Appellee filed
a PCRA petition on January 14, 1997. After the PCRA court denied the petition, this
Court affirmed, and the United States Supreme Court denied certiorari. Commonwealth
v. Hackett, 558 Pa. 78, 735 A.2d 688 (1999); Hackett v. Pennsylvania, 528 U.S. 1163,
120 S.Ct. 1178, 145 L.Ed.2d 1086 (2000).
Appellee subsequently filed a habeas corpus petition in federal court.4 While this
petition was pending, Appellee filed his second PCRA petition, seeking relief from his
4 The federal district court granted Appellee’s request for a new penalty hearing
pursuant to Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988).
Hackett v. Price, 212 F.Supp.2d 382 (E.D.Pa. 2001). However, the Third Circuit
reversed the grant of habeas relief and the U.S. Supreme Court denied certiorari.
(continuedM)
[J-73-2013] - 4
execution pursuant to Atkins, in which U.S. Supreme Court concluded that the execution
of intellectually disabled individuals constitutes cruel and unusual punishment under the
Eighth Amendment.5 The PCRA Court dismissed Appellee’s petition as it felt it could
not resolve Appellee’s claims while his federal habeas petition was pending. This Court
reversed the PCRA court’s decision and remanded for further proceedings pursuant to
Commonwealth v. Whitney, 572 Pa. 468, 817 A.2d 473 (2003), in which this Court held a
trial court has jurisdiction to address a PCRA petition during the pendency of a
petitioner’s federal habeas proceedings.
On May 3, 2004, Appellee filed a supplemental PCRA petition to raise a claim
pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) after
his co-defendant Spence was granted a new trial as a result of the prosecution’s
discrimination in jury selection. The PCRA judge, Willis Berry, Jr., granted relief on the
Batson claim and dismissed the Atkins claim as premature. However, this Court
reversed the PCRA court’s decision as Appellee’s Batson claim was untimely filed and
remanded for further proceedings pursuant to Atkins. Commonwealth v. Hackett, 598
Pa. 350, 956 A.2d 978 (2008).
Upon remand, Judge Berry held several hearings on Appellee’s Atkins claim from
May to November 2011. The first witness Appellee chose to call was Ms. Judy Pezola,
who taught Appellee at the Ashbourne School for children with special needs in her first
year of teaching in 1974 after being certified in special education. Remembering back
thirty years, Ms. Pezola recalled that ten-year-old Appellee worked at a first or second
(Mcontinued)
Hackett v. Price, 381 F.3d 281 (3rd Cir. 2004), cert. denied, Hackett v. Folino, 544 U.S.
1062, 125 S.Ct. 2514, 161 L.Ed.2d 1114 (2005).
5 We have jurisdiction over this claim pursuant to the PCRA timeliness exception set
forth in 42 Pa.C.S. § 9545(b)(1)(iii) as Appellee’s instant petition was filed within sixty
days of the U.S. Supreme Court’s decision in Atkins, which was filed on June 20, 2002.
[J-73-2013] - 5
grade level and “needed structure and individualized attention to stay focused on his
assignments and to work independently.” As Appellee was labeled “brain injured,” Ms.
Pezola claimed “as far as [she] knew, kids who were labeled brain injured were educably
mentally retarded.” N.T., Atkins Hearing, 5/11/11, at 9-10, 15, 22; Pezola Aff. at 1-2.
On cross-examination, Ms. Pezola admitted Appellee was not labeled mentally
retarded and conceded she was “not an expert” when asked to define the terms “brain-
injured” and “mentally retarded.” Although Ms. Pezola maintained all her students were
mentally retarded, she agreed the Ashbourne School accepted children with learning
disabilities and emotional issues. When confronted with a report in which she indicated
Appellee was “very capable of attending to a task until completion” and “able to structure
his time well when working independently,” Ms. Pezola claimed she wrote reports in a
positive light. In other reports, she stated Appellee “takes great pride in helping other
children read” and “acquires new math concepts easily if he’s provided with the
opportunity to practice and review the material.” When asked about developmental
delays Appellee claimed to have, Ms. Pezola denied Appellee had issues tying his shoes
or going to the bathroom. N.T., Atkins Hearing, 5/11/11, at 22-24, 29-30, 32, 35-36, 42.
Next, Appellee presented the testimony of four mental health experts.
Appellee’s first expert, Dr. Barry Crown, a neuropsychologist practicing clinical and
forensic psychology, opined that Appellee fits within the category of “mild mental
retardation.” Dr. Crown gave the Wexler adult intelligence scale to Appellee in 2009
after this Court remanded the case for an Atkins hearing more than seven years after
Appellee filed his petition. Recognizing individuals with mild mental retardation typically
have scores between 50 and 70, Dr. Crown reported Appellee’s I.Q. score to be 57. Dr.
Crown admitted this score was significantly lower than Appellee’s previous I.Q. scores;
[J-73-2013] - 6
Appellee received an I.Q. score of 80 in 1972 (age 8), a score of 85 in 1979 (age 15), and
a score of 82 in 1988 (age 23). N.T., Atkins Hearing, 45-46, 52-54, 59, 80-84.
Despite the dramatic drop in I.Q. score, Dr. Crown felt the test he used to evaluate
Appellee’s Atkins claim was a true measure of Appellee’s I.Q and insisted “[t]here was
nothing to suggest [Appellee] was attempting to fake this.” Dr. Crown believed Appellee
did not manipulate his score because the subscale scores displayed homogeneity and
Appellee was forthright in his interview. In contrast, Dr. Crown attempted to discredit
Appellee’s prior scores as “not necessarily as reliable.” Dr. Crown criticized the use of
the Beta-2 test given to Appellee in prison in 1988, as the test was developed by the army
in World War I to approximate I.Q. to screen for “illiterate recruits.” Dr. Crown claimed
the reliability of Appellee’s 1979 score on the Wechsler Intelligence Test for Children -
Revised (WISC-R) and his 1972 score on a test given by CORA Services could not be
assessed without raw data or supporting information on the tests’ administration.
Although Dr. Crown observed the WISC-R report was signed by one individual with a
Ph.D. and another with a master’s degree, he felt it was unclear who gave the test.
Moreover, as this test was stamped “obsolete” for unknown reasons, Dr. Crown opined
that perhaps this test would have to be repeated to account for developmental changes.
N.T., Atkins Hearing, 5/11/11, at 46, 53-54, 59, 64, 80-84.
Although he did not personally evaluate Appellee, Dr. Crown found Appellee had
adaptive limitations based on the reports of Appellee’s other experts, affidavits from
Appellee’s family members, the affidavit of Appellee’s trial counsel, Atty. Thomas
Bergstrom, and the fact that Appellee repeated the first grade three times before enrolled
in the Ashbourne School. Dr. Crown relied on the report of Dr. Jethro Toomer, who
administered the SIB-R scale which measures adaptive functioning, but did not score this
test or testify at trial. Dr. Crown cited to the affidavit of trial expert Albert Levitt who found
[J-73-2013] - 7
Appellee functioned at a nine or ten year old level based on a test in which he required
Appellee to draw a house, a tree, and a person. As Dr. Levitt felt Appellee’s drawing
could be produced by an eight to ten year old child, he opined that his maturity level was
consistent with a child of the same age. N.T., Atkins Hearings, 5/11/11, at 65-73;
11/17/11, at 84-86, 205-208.
On cross-examination, Dr. Crown admitted Appellee’s first three I.Q. scores were
consistent and significantly different than his recent score, but asserted it was mere
speculation that this discrepancy was caused by lack of motivation on the recent test.
The prosecutor also compared the tests Dr. Crown and Dr. Armstrong administered and
noticed Appellee incorrectly answered word problems involving subtraction of single digit
numbers but somehow was able to correctly multiply 809 by 47. Dr. Crown found these
questions test different skills as word problems involve abstract processing whereas
arithmetic does not. N.T., Atkins Hearing, 5/11/11, at 105-107, 123, 177, 185-88.
Admitting his finding that Appellee has adaptive functioning deficits is largely
based on affidavits of family members, Dr. Crown expressed no reservation about taking
these statements at face value. The prosecutor asked if Dr. Crown had considered that
Appellee ran his own business, paid off loans on two trucks, purchased a boat, was the
part owner of a beach house, plotted a murder, and sent handwritten grievances to prison
officials. Dr. Crown felt Appellee’s family helped him run his business, could not confirm
Appellee wrote the grievances, and was not persuaded Appellee showed direction in
planning the murder.
In a further attempt to cast doubt on Dr. Crown’s opinion, the prosecutor presented
two of Appellee’s recorded phone conversations from prison. In the first, Appellee
explained to his mother the concept of short-selling on the stock market and claimed he
had used this technique in the past. Dr. Crown felt Appellee’s intellectual disability did
[J-73-2013] - 8
not prevent him from engaging in financial transactions. In the second, Appellee
informed his sister his lawyers told him to not to go to the law library, talk to other inmates,
or make mistakes “Joey Miller” did on death row when he talked about how he was “beatin
[sic] the system andM playing the nut role.” This information did not change Dr. Crown’s
opinion that Appellee was being forthright and was motivated to do well on his I.Q. test.
Dr. Crown asserted he did not know what Appellee meant by this statement but felt
Appellee was “dumb enough to be having such conversations on a monitored phone.”
N.T., Atkins Hearing, 5/11/11, at 165-66, 171, 175.
Appellee’s next expert, Dr. Daniel Martell, a forensic neuropsychologist, testified
as an expert for the prosecution in Atkins and for the defense in Miller. Dr. Martell
showed concern about the disparity in Appellee’s I.Q. scores, but felt the test
administered by Dr. Crown was reliable as it was scored correctly and the Mittenberg
Index for malingering, which was applied to the score pattern, reported Appellee was
being honest. Dr. Martell questioned the validity of Appellee’s 1988 Beta-2 test results,
as he observed the test was incorrectly scored as Appellee’s score should have been 74
and further claimed this test should not be used to assess intellectual disability.
However, Dr. Martell disagreed with Dr. Crown’s evaluation of Appellee’s first two scores,
which Dr. Martell found could be legitimate. N.T., Atkins Hearing, 5/12/11, at 16-19.
Although Dr. Martell agreed Appellee had an average I.Q. in his adolescence, Dr.
Martell attributed the significant drop in his I.Q. to recreational boxing and exposure to
toxins. Noting Appellee’s participation in a boxing program from age 14 to 15, Dr. Martell
discussed the possible effects of dementia pugilistica (“boxer’s brain”) and compared
Appellee to Mohammed Ali. Dr. Martell also noted Appellee was exposed to chemicals
without protective clothing when he used the pesticide malathion in his landscaping
[J-73-2013] - 9
business and worked at his parents’ kennel where he coated the puppies’ cages with
creosote and applied Sevin to kill parasites. N.T., Atkins Hearing, 5/12/11, at 20-24.
Looking to Appellee’s adaptive functioning, Dr. Martell claimed Appellee had
deficits in five areas: functional academics, self-direction, social and interpersonal skills,
self-care, and safety. With regard to academics, Dr. Martell emphasized Appellee
repeated the first grade three times in the public school system. Appellee’s records from
the Ashbourne School, where Appellee was labeled “brain injured,” showed he was
behind grade level; one report stated Appellee functioned at a sixth grade reading level
and a fourth or fifth grade math level at age sixteen. With respect to self-direction, Dr.
Martell relied on reports describing Appellee as vulnerable to manipulation and requiring
structure and attention to stay on task. With respect to socialization, Dr. Martell pointed
to allegations that Appellee had trouble making friends. With respect to self-care, Dr.
Martell cited affidavits of family members claiming Appellee wet himself until he was
eleven and had trouble tying his shoes. With respect to safety, Dr. Martell recalled family
members related the following stories: Appellee held a firework until it blew up, had an
accident with a chemistry kit as a child, and injured himself climbing a tree with a
chainsaw while intoxicated. Dr. Martell admitted Appellee was able to run a landscaping
business that did not require a high level of functioning as his mother claimed to have
done the bookkeeping. Dr. Martell’s opinion was not affected after hearing Appellee
discussing short-selling stocks as Dr. Martell claimed Appellee’s intellectual disability
causes him to compensate for his mental deficits by trying to appear more competent
than he actually is. Moreover, Dr. Martell found Appellee showed poor judgment in
talking on the phone about how his lawyers advised him not to use to the prison phone
system which records calls. N.T., Atkins Hearing, 5/12/11, at 11-13, 38-42.
[J-73-2013] - 10
On cross-examination, Dr. Martell conceded his theory connecting Appellee’s drop
in I.Q. to boxing and chemical exposure information was based on Dr. Armstrong’s report
and his subsequent interview with Appellee’s mother a week before trial. Dr. Martell had
no specific information about Appellee’s boxing program, conceded he did not know if
Appellee wore safety gear, and shared Appellee’s mother was not aware of an occasion
where Appellee was injured or knocked out. Additionally, Dr. Martell claimed the
government has banned the use of chemicals Appellee used (malathion, Sevin, and
creosote) as such chemicals cause nervous system damage. When discussing Dr.
Martell’s reliance on the Mittenberg index in finding Appellee had not purposefully
manipulated his score, the prosecutor questioned whether this index accounts for lack of
motivation. Dr. Martell admitted Appellee had a motive not to do well. N.T., Atkins
Hearing, 5/12/11, at 61, 66-68, 71-74, 95-99.
Dr. Martell conceded Appellee was never deemed mentally retarded in his youth
but found to be “brain-injured,” a term which did not necessarily mean an injury but could
have referred to a learning disability. Although some of Appellee’s school records
indicated he did not have social skills and was a follower who was easily manipulated, the
prosecutor presented other reports which indicated Appellee’s “outgoing and friendly
personality makes him well liked by his peers” and noted “occasionally [Appellee would]
manipulate less mature members of the class.” Admitting he had “missed” these reports
and became “confused” with which records he reviewed, Dr. Martell stated the only
records he considered were in Appellee’s pleadings. Dr. Martell admitted this
information did alter the findings in his report but did not change his opinion. N.T., Atkins
Hearing, 5/12/11, at 76, 104-109.
The prosecutor also attacked Dr. Martell’s finding that Appellee showed deficits in
adaptive functioning as Dr. Martell had never met Appellee but based his report on
[J-73-2013] - 11
portions of school records and affidavits from his family. Although Appellee’s family
indicated Appellee wet himself and could not tie his shoes in grade school, Dr. Martell
admitted none of Appellee’s school reports refer to such problems and Ms. Pezola denied
Appellee had these issues. Dr. Martell found Appellee had deficits in safety was based
on the following reports of family members: Appellee jumped into a waterfall of unknown
size, held an exploding firecracker without any documented injuries or subsequent
problems using his hands, and had an accident while drunk. Even though Appellee was
able to live on his own, run a business, take out truck loans, and buy a beach home, Dr.
Martell found Appellee had deficits in self-care. However, Dr. Martell conceded
Appellee’s adaptive functioning improved over time and was on a divergent course with
Dr. Crown’s I.Q. results. N.T., Atkins Hearing, 5/12/11, at 114-40.
Appellee’s third expert, Dr. John O’Brien, who is both a psychiatrist and a lawyer,
opined that Appellee is “mentally retarded,” but frankly admitted he authored his report
without reviewing Appellee’s first three I.Q. scores. However, Dr. O’Brien averred this
information did not change his opinion because the Beta test does not properly test for
intellectual disability and Appellee’s first two scores cannot be validated without raw data.
Dr. O’Brien gave Appellee cognitive capacity screening tests which showed Appellee has
impaired memory and calculation. Further, Dr. O’Brien felt Appellee has anxiety
regarding his cognitive limitations which affects his functioning levels. Dr. O’Brien
indicated that in his interview with Appellee, he sensed Appellee was trying to impress
him with his knowledge and capabilities. On cross-examination, Dr. O’Brien admitted
Appellee’s first three I.Q. results were consistent, but repeated he could not assess the
reliability of Appellee’s 1972 and 1979 tests without the raw data. Nevertheless, Dr.
O’Brien conceded he relied on Dr. Crown and Dr. Armstrong’s tests without reviewing
their raw data. N.T., Atkins Hearing, 5/12/11, at 178-84, 187-192, 218-19, 226-230.
[J-73-2013] - 12
Appellee’s last expert witness, Dr. Carol L. Armstrong, the director of the University
of Pennsylvania neuropsychology laboratory, testified for the defense in the Miller case.
Her evaluation of Appellee in 2010 consisted of forty-five tests that explored cognitive
memory processes. As only two of these tests were relevant to I.Q., Dr. Armstrong
explained the goal of her testing was to break down Appellee’s composite I.Q. score to
discover underlying problems. Describing Appellee as having a severe profile of
neuropsychological impairment, Dr. Armstrong noted Appellee has intellectual disability
marked by deficits in verbal and visual memory, facial perception, arithmetic, and
information processing. Dr. Armstrong opined that Appellee has a poor ability to plan his
behavior based on his errors on a maze drawing task and found no evidence Appellee
was malingering on these tests. Concluding that Appellee exhibits neuropsychological
impairment and “mental retardation,” Dr. Armstrong asserted her findings were supported
by his familial pattern of abnormal neurological development, his poor educational
adaptation, and “insults” he experienced in adolescence while boxing and working with
chemicals. Dr. Armstrong found Appellee’s intellectual disability began prior to age
eighteen based on his developmental delay and Mrs. Pezola’s claim that Appellee was
“mentally retarded.” N.T., Atkins Hearing, 11/15/11, at 84, 90-97, 100-108, 113-115.
Agreeing that most individuals with mild mental retardation can live independently,
Dr. Armstrong claimed Appellee’s intellectual disability did not prevent him from running a
business. While Dr. Armstrong admitted Appellee had a high school level vocabulary
and filed prison grievances in which he demonstrated correct word usage and grammar,
Dr. Armstrong asserted that intellectual disability does not cause an individual to lose his
ability to write and speak correctly. Dr. Armstrong’s opinion was not affected when she
learned Appellee discussed short-selling stocks, as there “was no way to test the
[J-73-2013] - 13
effectiveness M [or] accuracy of what was being said.” N.T., Atkins Hearing, 11/15/11,
at 128-44.
Dr. Armstrong criticized two aspects of the Commonwealth’s expert report, in
which Dr. Paul Spangler pointed to disparities in Appellee’s performance on similar
portions of tests given by Dr. Crown and Dr. Armstrong. Specifically, Dr. Armstrong
admitted Appellee performed better on her similarities test after Dr. Crown had
administered the same exam, but claimed this was caused by the “practice effect” where
Appellee would improve on questions he has seen on a prior occasion. Dr. Armstrong
also attacked the Commonwealth’s point that Appellee answered more difficult questions
on her arithmetic test. Dr. Crown claimed this criticism did not change her conclusion
because these tests were not “equivalent”; while Appellee did poorly on word problems
that required mental concentration and working memory, he was able to correctly answer
basic arithmetic problems. N.T., Atkins Hearing, 11/15/11, at 138-42.
On cross-examination, Dr. Armstrong acknowledged the tests she administered
did not measure I.Q. or assess Appellee’s adaptive functioning. While Dr. Armstrong
found Appellee’s performance was consistent with “mental retardation,” she admitted that
it was also consistent with other brain abnormalities. Dr. Armstrong reiterated the goal of
her testing was to validate Appellee’s I.Q. and his recent classification as intellectually
disabled. After the prosecutor questioned this statement, Dr. Armstrong agreed
Appellee had never been previously diagnosed with mental retardation and noted she
relied on the observation of Appellee’s teacher, Ms. Pezola, who Dr. Armstrong admitted
had limited teaching experience and did not know the difference between the terms “brain
injured” and “mentally retarded.” N.T., Atkins Hearing, 11/15/11, at 150-57.
When the prosecutor noted the discrepancy between Appellee’s I.Q. test scores
obtained before and after he filed his Atkins petition, Dr. Armstrong asserted that it is
[J-73-2013] - 14
necessary to evaluate Appellee’s pre-Atkins test scores in the context of the “Flynn
effect,” the theory that I.Q. scores on tests with outdated norms may be inflated due to
the general rise of the I.Q. scores of a population over time. Although Dr. Armstrong
had not discussed the Flynn effect in her report or on direct examination, she asserted
Appellee’s pre-Atkins scores should have been adjusted for the Flynn effect.
Nevertheless, Dr. Armstrong admitted that, even with this adjustment, Appellee’s scores
were above the range of intellectual disability. While Dr. Armstrong claimed Appellee’s
exposure to chemicals may have caused brain injury and suggested there are scientific
studies exploring the effect of the chemicals Appellee used on the neurological system,
Dr. Armstrong admitted these chemicals are commercially available and malathion is
used to treat head lice in children. N.T., Atkins Hearing, 11/15/11, at 181-84, 212-15.
The prosecutor attacked Dr. Armstrong’s finding that Appellee lacked control of
impulsivity based on his failure to complete a maze drawing test without errors. In
determining Appellee lacked planning skills, Dr. Armstrong stated she did not find it
necessary to consider the facts underlying Appellee’s murder conviction because she did
not “think these were equally convertible concepts.” Similarly, although Dr. Armstrong
admitted she had no information on how Appellee planned and organized his landscaping
business, she asserted this information was not important in deciding whether Appellee
had planning impairment. Dr. Armstrong claimed it was improper to rely on the
representations of individuals rather than an objective neuropsychological test. N.T.,
Atkins Hearing, 11/15/11, 180, 202, 220-21.
Appellee also called his trial counsel, Atty. Thomas Bergstrom, to testify. Atty.
Bergstrom claimed Appellee was the “most mentally challenged client [he] ever had”
because Appellee was slow in understanding legal concepts. Atty. Bergstrom
remembered Appellee played a limited role in his trial and gave no feedback. On
[J-73-2013] - 15
cross-examination, Atty. Bergstrom admitted he did not challenge Appellee’s competency
to stand trial because he was satisfied Appellee understood the basics of the trial
process. Although Atty. Bergstrom vaguely remembered some of the details concerning
Appellee’s crimes, Atty. Bergstrom admitted he was not familiar with this history as he had
not read the trial transcript for twenty-five years. When confronted with a phone
conversation Appellee had with his sister while in prison in which Appellee explained
Mumia Abdul Jamal’s legal position in his own capital murder case, Atty. Bergstrom felt
this was not strange as Appellee had twenty-five years on death row to learn the facts of
that case. N.T., Atkins Hearing, 5/13/11, at 43, 56, 65.
Furthermore, Appellee’s family testified on his behalf. Appellee’s paternal aunt,
Geraldine Culp, and his maternal aunt, Geraldine Krause, gave similar testimony that
Appellee developed slower than their children in reading, tying his shoes, and dressing
himself. Both Ms. Culp and Ms. Krause testified Appellee would spend time with
younger children. Mrs. Culp believed Appellee wet himself until he was ten and claimed
Appellee’s mother went to his school when he had an accident. On cross-examination,
Ms. Culp was surprised to learn Appellee’s school records contained no indication he had
trouble going to the bathroom and his teachers documented that Appellee had no fine
motor skills problems, was very competitive in school athletics, and was somewhat of a
bully. Ms. Krause claimed Appellee had difficulty playing games as he did not
understand them and would lose attention quickly. She reported four incidents involving
Appellee’s judgment as a child: Appellee rode his bike into a creek, accidentally
discolored the floor of her home with a chemistry set, knocked down a tent, and on one
occasion, did not respond when she yelled for him to get his mother. When the
prosecutor asked whether it was abnormal for a twelve-year-old to ride a bike into a creek,
[J-73-2013] - 16
Ms. Krause responded that her daughter “was the same age as [Appellee] and she never
did anything like that.” N.T., Atkins Hearing, 5/13/11, at 7, 9, 13-15, 21-23, 78, 81-88, 98.
Appellee also relied on the testimony of his mother, Bonnie Hackett. Mrs. Hackett
confirmed that she enrolled Appellee in the Ashbourne School after he repeated the first
grade three times and indicated Appellee had problems tying his shoes, focusing on tasks
such as cooking or doing laundry, and wearing appropriate clothing for each season.
Although Appellee ran his business, Mrs. Hackett claimed Appellee’s father got him
business cards and helped him obtain tools and a truck while Mrs. Hackett kept the
finances, made the truck payments, set the prices, and sent invoices. Mrs. Hackett
shared that Appellee’s brother was diagnosed as “mentally retarded” and his late father
had limitations in intellectual functioning. N.T., Atkins hearing, 11/15/11, at 6-7, 25-26.
At several points in her testimony, defense counsel found it necessary to redirect
Mrs. Hackett after she discussed Appellee’s participation in boxing and his exposure to
chemicals when she had not been asked questions related to these topics. Mrs. Hackett
asserted she did not want Appellee to join the boxing club as she was worried he would
be injured; she related one occasion in which Appellee’s ear and eye were swollen and
other occasions in which Appellee went to bed at 6:00 p.m. As such, Mrs. Hackett was
thankful his participation in boxing did not “lastMtoo long.” In addition, Mrs. Hackett
expressed concern about Appellee’s exposure at the family kennel to creosote, which
Appellee would apply to the puppies’ cages without a mask or gloves. Mrs. Hackett
claimed Appellee used malathion at work without similar precautions. Mrs. Hackett
asserted both chemicals were taken off the market and asserted creosote is
carcinogenic. N.T., Atkins hearing, 11/15/11, at 10-11, 15-23.
On cross-examination, Mrs. Hackett testified that Appellee was never diagnosed
with “mental retardation” but found to have learning disabilities in his youth. While Mrs.
[J-73-2013] - 17
Hackett focused on Appellee’s delay as a child in learning to tie his shoes and dress
himself, she agreed these problems did not exist when Appellee was eighteen. Although
she expressed concern about Appellee’s possible brain damage from boxing and
exposure to chemicals in his adolescence, Mrs. Hackett admitted she did not allege these
facts in her affidavit and was not aware that creosote is, in fact, available for purchase and
used commercially. N.T., Atkins hearing, 11/15/11, at 29, 33-38, 45-50.
Describing Appellee as a hard worker, Mrs. Hackett testified that Appellee’s
business was successful enough to allow Appellee to purchase two trucks by the time he
was eighteen years old. Mrs. Hackett agreed Appellee was responsible for scheduling
the jobs his employees would complete each day, which included lawn mowing, spraying,
and general lawn maintenance. Mrs. Hackett testified she had hoped Appellee could
care for himself when she moved to Monroe County in 1985 and Appellee remained in
Philadelphia. She claimed Appellee then hired a woman named Heidi Guhl to handle
the business finances. As Mrs. Hackett claimed Appellee could not handle financial
matters, the prosecutor asked her if she remembered testifying in 1988 that Appellee
rented an office for his business because “he needed a place that was quiet, that he had
access to, to make out bills and whatnot.” Mrs. Hackett did not deny making this
statement, but asserted Appellee organized the documents so that she could do his
bookkeeping. When asked if Appellee reported income from the stock market, Mrs.
Hackett explained Appellee did not take interest in stocks until she had discussed this
topic with him while he was incarcerated as a way to make conversation. N.T., Atkins
hearing, 11/15/11, at 29, 36-40, 45-50, 61-63, 67-68.
The Commonwealth presented the expert testimony of psychologist Dr. Paul
Spangler, the president of the mid-Atlantic region of the American Association of
Intellectual and Developmental Disabilities (AAIDD), who found no evidence Appellee
[J-73-2013] - 18
was “mentally retarded.” Dr. Spangler’s clinical experience includes employment in the
1970’s as assistant director of the Elwyn Institute, a facility for individuals with
developmental disabilities. In this position, Dr. Spangler had contact with the Ashbourne
School which Appellee attended during this period. Dr. Spangler asserted the
Ashbourne School did not seek to enroll students with “mental retardation,” but
specialized in educating children with minimal brain dysfunction, which Dr. Spangler
correlated to learning disabilities. N.T., Atkins hearing, 11/17/11, at 8-13, 91, 115.
Dr. Spangler found no reason to discredit the I.Q. scores recorded by the
Ashbourne School in 1972 and CORA Services in 1979, as these institutions were
respectable sources of information which he had relied on during his career. Dr.
Spangler agreed that the Beta-2 test, which the defense felt did not adequately assess
intellectual disability, should not be relied on as the sole measure of I.Q., but advocated
its use as a screening tool. Even after recognizing the Beta-2 test’s weaknesses, Dr.
Spangler noted Appellee’s score was consistent with his prior two test results, which Dr.
Spangler found no reason to discredit. N.T., Atkins hearing, 11/17/11, at 23-24, 44, 65.
Dr. Spangler criticized the defense’s reliance on the I.Q. test Dr. Crown gave
Appellee in 2009 to evaluate his Atkins claim and found the drop of approximately twenty
points in I.Q. was significant. As I.Q. tests are subject to time restraints, Dr. Spangler
explained that a person’s lack of motivation or effort can lower their I.Q. score. Although
Dr. Spangler did not believe Appellee was lying per se on this test, Dr. Spangler felt he
was not motivated to do well or perform quickly on a test that results in a death sentence.
Dr. Spangler observed Appellee did “noticeably poor[ly]” on timed questions and noted
disparity in the speed with which he completed similar sections of I.Q. tests administered
before and after he filed his Atkins claim. Dr. Spangler also noted Appellee did better on
tests given by Dr. Armstrong, who was not seeking to measure I.Q. As such, Dr.
[J-73-2013] - 19
Spangler questioned the applicability of the Mittenberg index, which is designed to
measure purposeful falsification. Dr. Spangler found it “cruel” to give an I.Q. test to a
death row inmate and ask him to perform to the best of his ability in hopes he will do well
enough to be executed. N.T., Atkins hearing, 11/17/11, at 24-30, 36-48, 52-57, 66, 79.
While Dr. Spangler did not challenge the validity of Dr. Armstrong’s evaluation, he
asserted that such tests are not used to diagnose intellectual disability and do not
produce an I.Q. score. Dr. Spangler noted that none of Appellee’s subscale scores
related to I.Q. were below the second percentile, which defines intellectual disability. He
highlighted Appellee’s score in the 75th percentile on the abstract verbal reasoning
subtest, which he correlated with an I.Q. of 115, and further indicated Appellee answered
sophisticated questions which only people with I.Q.’s in excess of 130 are expected to get
correct. Dr. Armstrong rejected the claim that the “practice effect” accounted for
Appellee’s better performance on Dr. Armstrong’s similarities test as she gave him
additional questions he had not seen on Dr. Crown’s test. Moreover, Dr. Spangler found
it improper to attribute the drop in Appellee’s I.Q. score to exposure to creosote, Sevin,
malathion and Roundup as he was unaware of any scientific articles connecting these
chemicals to brain damage. Dr. Spangler also felt there was no evidence Appellee’s
limited recreational boxing as a fourteen-year old caused any brain damage as Appellee’s
obtained his highest I.Q. score at age fifteen. N.T., Atkins hearing, 11/17/11, at 50-59,
74-78, 80, 99-101.
With respect to Appellee’s adaptive functioning, Dr. Spangler found school records
indicated Appellee was progressing normally and contained no reference to problems
with skill acquisition or communication. One report described seventeen-year-old
Appellee with this phrase: “[d]evelopmental history showed no unusual events and a
normal progression in acquisition of skills.” Dr. Spangler noted the defense experts did
[J-73-2013] - 20
not give Appellee adaptive functioning tests, but relied on family anecdotes, which Dr.
Spangler felt should not be accepted at face value. Dr. Spangler questioned Dr. Crown’s
reliance on Dr. Toomer’s adaptive functioning test, which was incorrectly given and never
scored. He also found it improper for Appellee to rely on the “grossly fallacious” claim of
expert Albert Levitt who found Appellee functioned at a ten year old level based on his
drawing of a tree. N.T., Atkins hearing, 11/17/11, at 83-85, 91-95, 99-101, 208-209, 221.
Dr. Spangler felt Appellee’s ability to run his own business and discuss the stock
market was advanced and consistent with normal behavior, not intellectual disability.
Dismissing the defense’s assertion that Appellee talked about stock trading to appear
intelligent, Dr. Spangler felt Appellee did not merely mimic other individuals or repeat
information, but showed sophisticated cognitive skills as seen in his ability to write prison
grievances with correct grammar and sentence structure. Although he admitted
individuals with intellectual disability can learn to use mechanical equipment, Dr.
Spangler felt such individuals are not often left to operate machinery independently and
do not usually run businesses where they are responsible for handling money and
keeping track of appointments. Further, Dr. Spangler felt Appellee’s crime was not
typical of offenses committed by intellectually disabled individuals, which are generally
impulsive and show “very little aforethought.” N.T., Atkins hearing, 11/17/11, at 85-88,
105-109, 211.
On cross-examination, Dr. Spangler admitted he did not personally evaluate
Appellee, but explained that he found no reliable source of evidence of “mental
retardation” prior to Appellee’s eighteenth birthday and claimed testing would be
irrelevant to assess whether Appellee was “mentally retarded” thirty years ago. Further,
Dr. Spangler wished to avoid a false evaluation as he did not feel Appellee would give him
a fair response when taking an I.Q. test under the duress of the death penalty. Similarly,
[J-73-2013] - 21
Dr. Spangler did not recommend utilizing the Mittenburg index as he questioned its
accuracy, but felt Appellee did not show significant signs of purposeful manipulation.
While Dr. Spangler emphasized the discrepancy in Appellee’s performance on similarities
tests given by Dr. Crown and Dr. Armstrong, he conceded Appellee performed similarly
on their vocabulary and information tests. N.T., Atkins hearing, 11/17/11, at 136-139,
143-45, 153.
While Appellee was behind grade level every year, Dr. Spangler acknowledged
Appellee may have learning disabilities, not “mental retardation,” as Appellee’s learning
advanced at a normal rate after enrolled at the Ashbourne School. With respect to
Appellee’s adaptive functioning, Dr. Spangler conceded that he did not address in his
report Dr. Martell’s findings that Appellee had limitations in the area of self-care,
self-direction, social interpersonal skills, safety, and functional academics, but felt
Appellee had no deficits in those areas. Dr. Spangler confined his evaluation to the tests
given and their accuracy. N.T., Atkins hearing, 11/17/11, at 119-20, 158-161.
The Commonwealth elicited the testimony of Heidi Guhl, Appellee’s employee who
answered his office phone on Saturdays. Ms. Guhl claimed Appellee scheduled his
workers, prepared estimates, and operated all of his equipment. Ms. Guhl remembered
Appellee did not write checks and paid his employees cash. Although Appellee’s family
claimed she did the bookkeeping after his mother moved to Monroe County, Ms. Guhl
denied these allegations. Ms. Guhl partied at Appellee’s beach house because Appellee
would buy her alcohol as she was underage at the time. When Appellee was on work
release for several burglary convictions, Ms. Guhl claimed that Appellee deceived
authorities into allowing him to go to the shore on the weekends as he had maintained he
had contracts there. Ms. Guhl admitted she had been charged with possession of drug
paraphernalia but denied receiving preferential treatment from the Commonwealth.
[J-73-2013] - 22
Although Ms. Guhl had a close relationship with the victims and expressed hate for the act
Appellee committed, she claimed to have no ill feelings against him. As Ms. Guhl felt
Appellee’s crime was an immature mistake, she was not opposed to the trial court
vacating his death sentence. Ms. Guhl did not believe Appellee had intellectual
difficulties, but suggested he had anger issues. N.T., Atkins hearing, 11/16/11, at 6, 10,
12-23, 41-49.
After hearing this testimony, the PCRA court determined Appellee’s 2009 I.Q.
score of 57 placed him in the range of “mild mental retardation” and was satisfied
Appellee was not malingering on this test. Finding Appellee’s pre-Atkins scores to be
“unreliable,” the PCRA court indicated Dr. Spangler “could not specifically vouch for the
veracity or accuracy of these earlier tests” and had not performed his own testing. In
addition, the PCRA court found Appellee had deficits in adaptive functioning as seen in
his need to repeat the first grade three times, his developmental delay, anecdotes of
Appellee’s unsafe behavior, and school reports indicating that he did not make friends
easily, was easily manipulated, and required direction. In conjunction with Appellee’s
exposure to toxic chemicals, his “repeated head injuries,” and familial history of
limitations in intelligence, the PCRA court found Appellee had proven his intellectual
disability by a preponderance of the evidence under the standard set forth in Miller.
PCRA Op., 6/8/12, at 6, 7-16, 19.
The Commonwealth appealed, claiming Appellee has not met his burden under
Miller and asks this Court to “adopt a more objective legal definition of mental retardation
to combat fraud upon the courts.” Commonwealth’s Brief, at 3. In reviewing a PCRA
court’s determination of whether a petitioner is intellectually disabled and thus, exempt
from the death penalty, our standard of review is as follows:
A question involving whether a petitioner fits the definition of
mental retardation is fact intensive as it will primarily be based
[J-73-2013] - 23
upon the testimony of experts and involve multiple credibility
determinations. Accordingly, our standard of review is
whether the factual findings are supported by substantial
evidence and whether the legal conclusion drawn therefrom is
clearly erroneous. We choose this highly deferential standard
because the court that finds the facts will know them better
than the reviewing court will, and so its application of the law
to the facts is likely to be more accurate.
Commonwealth v. Williams, 619 Pa. 219, 223, 61 A.3d 979, 981 (2013) (citing
Commonwealth v. Crawley, 592 Pa. 222, 228-29, 924 A.2d 612, 616 (2007)).
II. ANALYSIS
A. Review of PCRA court’s Atkins determination
Before we examine each party’s claims in further detail, it is necessary to set forth
relevant precedent to give context to their arguments. After the U.S. Supreme Court
issued its pronouncement in Atkins prohibiting the execution of “mentally retarded”
individuals, the High Court left to the individual states the responsibility of setting
procedures to assess a defendant’s claim of intellectual disability. Atkins, 536 U.S. at
317, 122 S. Ct. at 2250, 153 L.Ed.2d 335 (stating “we leave to the State[s] the task of
developing appropriate ways to enforce the constitutional restriction upon [their]
execution of sentences”). As our General Assembly has not enacted legislation to set
such standards eleven years after Atkins was decided, this Court has exercised its
constitutional power of judicial administration in the interim to set forth procedures to
implement the Atkins decision in Pennsylvania. Commonwealth v. Sanchez, 614 Pa. 1,
48, 36 A.3d 24, 52 (2011); cert. denied, ---U.S.---, 133 S. Ct. 122, 184 L. Ed. 2d 58 (2012);
Miller, 585 Pa. at 155, 888 A.2d at 631; Pa. Const. Art. V, § 10(c).
In Miller, this Court established the prevailing standard for Atkins claims in
Pennsylvania: a defendant must show, by a preponderance of the evidence, that he is
[J-73-2013] - 24
“mentally retarded” under the definitions provided by the American Psychiatric
Association (APA) or the American Association of Mental Retardation (AAMR), which
was renamed the American Association on Intellectual and Developmental Difficulties
(AAIDD). Miller, 585 Pa. at 155, 888 A.2d at 631. These clinical definitions are as
follows:
The AAMR defines mental retardation as a “disability
characterized by significant limitations both in intellectual
functioning and in adaptive behavior as expressed in the
conceptual, social, and practical adaptive skills.” Mental
Retardation[: Definition, Classifications, and Systems of
Supports 1 (10th ed. 2002) (Mental Retardation)] at 1. The
American Psychiatric Association defines mental retardation
as “significantly subaverage intellectual functioning (an I.Q. of
approximately 70 or below) with onset before age 18 years
and concurrent deficits or impairments in adaptive
functioning.” [Diagnostic and Statistical Manual of Mental
Disorders (4th ed. 1992) (DSM–IV),] at 37. Thus, ... both
definitions of mental retardation incorporate three concepts:
1) limited intellectual functioning; 2) significant adaptive
limitations; and 3) age of onset.
Id. at 153, 888 A.2d at 629–30 (footnote omitted). In sum, a defendant may establish
“mental retardation” under either the AAMR (AAAID) or APA/DSM–IV definition by
showing by a preponderance of the evidence that he has limited intellectual functioning,
significant adaptive limitations, and the onset of his subaverage intellectual functioning
began before he turned 18 years old. Williams, 619 Pa. at 224, 61 A.3d at 982.
The first prong of this test, significantly subaverage intellectual functioning, is
signified through I.Q. scores which are approximately two standard deviations (or 30
points) below the mean score (100). Miller, 585 Pa. at 154, 888 A.2d at 630 (citing
Mental Retardation, at 14; DSM-IV, at 39). It is important to note, however, that a low
I.Q. score, by itself, is not sufficient to assess “mental retardation” under the DSM-IV and
[J-73-2013] - 25
AAAID definitions. Miller, 585 Pa. at 154, 888 A.2d at 630. The second prong of Miller
test requires the individual to show significant deficits in adaptive functioning. Id.
Adaptive behavior is defined as the “collection of conceptual, social, and practical skills
that have been learned by people in order to function in their everyday lives”; individuals
with adaptive behavior limitations struggle in adjusting to ordinary demands of life. Id.
The AAAID recommends adaptive behavior be assessed through standardized testing
and defines significant limitations in adaptive behavior as performance that is at least two
standard deviations below the mean of either in an overall score assessing conceptual,
social, and practical skills or within any one of three categories individually. Id. at 154,
888 A.2d at 630-31. In contrast, the DSM-IV requires significant deficits in two of the
following categories: communication, self-care, home living, social/interpersonal skills,
use of community resources, self-direction, functional academics, work, leisure, health,
and safety. Id. at 154, 888 A.2d at 630 n. 8.
1. Arguments
Pursuant to these standards, the Commonwealth argues the PCRA court erred in
determining that Appellee met his burden to prove that he is intellectually disabled and
thus, entitled to Atkins relief. The Commonwealth claims historical evidence established
before Appellee raised his Atkins claim shows Appellee was not intellectually disabled.
In contrast, the Commonwealth contends that Appellee presented speculative testimony
from defense experts who conducted intelligence testing decades after Appellee’s crimes
for the purpose of proving Appellee’s Atkins claim in an attempt to convince the PCRA
court to vacate Appellee’s death sentence.
[J-73-2013] - 26
With respect to the intellectual functioning prong of the Miller test, the
Commonwealth asserted Appellee’s claim that his I.Q. score is within the range of
intellectual disability is false as a matter of law. Noting the threshold score for intellectual
disability is 70, the Commonwealth claims the PCRA court erred in ignoring the results of
Appellee’s early I.Q. tests in which he scored of 82 at age 7, 85 at age 14, and 80 at age
22, which placed Appellee in the low-normal range and above the applicable threshold.
Although some defense experts questioned the reliability of these tests, Appellee’s own
expert, Dr. Martell, admitted these scores were consistent and likely reliable.
Given the precision of his pre-Atkins test scores, the Commonwealth criticizes the
the PCRA court’s reliance on the self-serving results of Appellee’s 2009 I.Q. test, in which
he scored a 57. Considering this score to be an outlier, the Commonwealth asserts
there is a significant risk that intelligence testing administered for the purposes of Atkins
litigation will be skewed and invalid as a defendant has a decreased motivation to perform
well when good performance will lead to execution. To support this claim, the
Commonwealth cites precedent of other state appellate courts who have recognized that
it is necessary to examine a defendant’s motivation when assessing intelligence testing
given to assess Atkins claims. See Arizona v. Grell, 135 P.3d 696, 702 (Ariz. 2006);
Bowling v. Kentucky, 163 S.W.3d 361, 376 (Ky. 2005); Hughes v. Mississippi, 892 So.2d
203, 215 (Miss. 2004); Louisiana v. Dunn, 831 So. 2d 862, 886 n.9 (La. 2002). Although
defense expert Dr. Martell asserted the Mittenburg index indicated Appellee was not
malingering, the Commonwealth points out that Dr. Martell admitted Appellee had a
motive not to do well on his post-Atkins I.Q. test. Further, the Commonwealth argues
that the PCRA court erroneously relied on the “Flynn effect” to explain away Appellee’s
[J-73-2013] - 27
historical I.Q. results which it claims cannot account for the precipitous loss of
twenty-seven I.Q. points after he filed his Atkins petition.
Turning to the adaptive functioning prong of the Miller test, the Commonwealth
also contends the PCRA court improperly focused on delays in Appellee’s development
which he overcame well before he turned eighteen. After Appellee was enrolled at the
Ashbourne School, which focused on children with learning disabilities, and not “mental
retardation,” Appellee’s records showed improvement and progression although he was
behind grade level. Citing to a portion of the DSM-IV manual which provides individuals
with “mild mental retardation” can achieve academically to the sixth grade level, the
Commonwealth points to tests indicating Appellee achieved beyond this benchmark.
In contrast, the Commonwealth questions the defense experts’ refusal to consider
Appellee’s adaptive functioning at the time he conspired to commit murder: Appellee lived
independently, ran a small business in which he scheduled and paid his employees,
rented an office, and purchased and operated vehicles and sophisticated equipment. As
Appellee’s business was successful, he earned enough money to buy a boat and share
ownership of a New Jersey beach home. Additionally, the Commonwealth points to
Appellee’s manipulation of the “loopholes of life,” where Appellee lived at the Ogrod home
and stored his business equipment there without paying any rent, used his business to
target homes he later burglarized, and deceived authorities to believe he had contracts in
New Jersey so that he could travel to the shore on weekends while on work release.
Moreover, the Commonwealth emphasizes that none of the defense experts
successfully evaluated Appellee’s alleged adaptive functioning limitations through
standardizing testing; while Dr. Crown relied on Dr. Toomer’s evaluation of Appellee’s
[J-73-2013] - 28
adaptive functioning, the defense did not challenge the Commonwealth’s assertion that
Dr. Toomer’s results were invalid as he administered the test incorrectly. Instead, the
Commonwealth claims the PCRA court’s finding that Appellee had adaptive functioning
deficits is based on anecdotes of family members interested in helping Appellee avoid the
death penalty and a selective reading of Appellee’s school records that ignores evidence
of Appellee’s improvement, success, and capabilities.
The Commonwealth asserts that the PCRA court’s conclusion that Appellee met
the third prong of the Miller test and exhibited the onset of “mental retardation” prior to age
eighteen is not supported by the record. As Appellee had never been diagnosed as
intellectually disabled before he sought Atkins relief and his historical I.Q. results revealed
Appellee scored in the low average range of the I.Q. spectrum, the Commonwealth
characterizes the defense theories concerning Appellee’s drop in I.Q. as speculative.
Although defense experts claimed Appellee sustained brain injury from chemical
exposure, the Commonwealth argues that none of the defense experts testified to any
expertise in this area, cited to any scientific studies which found these specific chemicals
to be toxic, or connected Appellee’s exposure to his alleged intellectual disability. In
addition, the Commonwealth challenges the internal consistency of the defense theories
which assert Appellee’s I.Q. dropped dramatically while his adaptive functioning
improved over time. The Commonwealth also questions the defense experts’ adamant
refusal to acknowledge that Appellee’s drop in I.Q. score could have been caused by his
lack of motivation to perform well on a test that will be used to support his execution.
Further, the Commonwealth asserts that the PCRA judge failed to grasp that
Appellee was required to prove he was “mentally retarded,” and did not merely have
[J-73-2013] - 29
mental impairment, learning disabilities, or another neurological abnormality.6 After the
prosecutor questioned the defense’s reliance on the statements of Appellee’s teacher,
Ms. Pezola, on this topic, the parties had the following exchange with the trial court:
[Prosecutor:] Did you hear [Ms. Pezola] say that she really didn’t know if
[Appellee] was mentally retarded?
[Dr. Martell:] I heard her say that she thought he was educably mentally
retarded.
[Prosecutor:] Did you also hear her say that she thought all of her students
were educably mentally retarded?
Trial Court: Isn’t that the purpose of the school?
[Prosecutor:] No, your Honor. It’s for learning disabled students.
Trial Court: Well, they couldn’t learn in regular school. They put them in
this school because they had a problem learning.
[Prosecutor:] They had problems. They are not mentally retarded.
There are other things. They are learning disabled.
Trial Court: Look, they had difficulty. They were challenged students.
That’s why they were put in here.
[Prosecutor:] Right. The point is was he mentally retarded or did he have
a learning disability.
Trial Court: All right.
N.T. Atkins hearing, 5/12/11, 102-103. A short time later, Judge Berry asked Dr. Martell
the following question: “So [Appellee] spent ten years in the Ashbourne School, which is
a school for mentally retarded children?” Id. at 117. In emphasizing the relevance of
this distinction, the Commonwealth points to the uncontradicted testimony of Dr. Spangler
6 For this proposition, the Commonwealth cites In re Bowling, 422 F.3d 434, 439 (6th Cir.
2005), in which the Sixth Circuit found a petitioner’s adaptive functioning limitations do
not show mental retardation where they “are just as indicative of the other psychological
disorders from which he suffers as they are of low level intellectual functioning.”
[J-73-2013] - 30
who had knowledge of the Ashbourne School’s practice of admitting children with
learning disabilities, not “mental retardation.”
Arguing that the Commonwealth ignores the applicable standard of review,
Appellee claims that the PCRA court’s conclusion that he is “mentally retarded” is free
from legal error and its factual findings are supported by the record. Appellee contends
that the Commonwealth has not raised a meritorious claim to warrant overturning the
PCRA court’s decision as he claims the Commonwealth is simply asking this Court to
discount the PCRA court’s credibility determinations and disregard the deference owed to
the PCRA court’s findings of fact.
First, Appellee asserts the PCRA court correctly found Appellee has subaverage
intellectual functioning as his I.Q. score of 57 on the test administered by Dr. Crown fell
within the range of intellectual disability. The PCRA court found this score was
consistent with Appellee’s need to repeat the first grade three times, his family history of
low intellectual functioning, and his exposure to toxins and “repeated head injuries” as a
child. Emphasizing the PCRA court found Dr. Crown’s score to be reliable, Appellee
points to Dr. Crown’s assertion that there was no reason to believe Appellee’s score was
fraudulent and the fact that all experts, including Dr. Spangler, found Appellee was not
malingering. In addition, Appellee notes the PCRA court considered Appellee’s previous
I.Q. scores, but found such results to be unreliable. Moreover, Appellee emphasizes the
PCRA court rejected Dr. Spangler’s opinion that Appellee’s earlier I.Q. scores should be
credited because Dr. Spangler could not vouch for the validity or accuracy of these tests.
Although Dr. Martell did not question the validity of these scores, he asserted Appellee’s
I.Q. had been lowered by neurological insults such as boxing and chemical exposure.
[J-73-2013] - 31
Appellee also claims the PCRA court had ample support to conclude Appellee has
significant adaptive deficits. The PCRA court relied on Dr. Martell’s opinion that
Appellee was impaired in five of the DSM-IV’s eleven adaptive functioning categories:
functional academics, social and interpersonal skills, self-direction, self-care, and safety.
The PCRA court found limitations in functional academics as Appellee repeated the first
grade three times and was behind grade level every year at the Ashbourne School. With
respect to Appellee’s socialization skills, the PCRA court noted school reports and family
members indicated Appellee was vulnerable to manipulation and had trouble making
friends as a child. In finding Appellee lacked self-direction, the PCRA court relied on Ms.
Pezola’s observation that Appellee required structure and attention to stay on task. The
PCRA court found Appellee had deficits in self-care as he wet himself until he was eleven,
could not tie his shoes, and never helped his mother and sister cook or do laundry. With
respect to safety, the PCRA court found serious deficits based on the aforementioned
family anecdotes of Appellee’s unsafe behavior, which includes an incident where
Appellee injured himself climbing a tree with a chainsaw while intoxicated.
Appellee notes that the PCRA court found Appellee’s ability to work and run a
business were not inconsistent with a diagnosis of intellectual disability as his family gave
him extensive help in running the business and Appellee’s his tasks did not involve high
intellectual ability and could be learned through repetition. Appellee points to our
decision in Williams, in which this Court upheld the PCRA court’s finding that Williams
was “mentally retarded” even though he held basic jobs and provided for his family as the
DSM-IV and AAMR standards provide that individuals with “mental retardation” can
function in society, hold low-skilled jobs, and have strong skills in distinct categories.
[J-73-2013] - 32
Williams, 619 Pa. at 241, 61 A.3d at 992-93. In the same vein, while the PCRA court
noted that Appellee was able to engage in financial transactions and understand some
difficult stock trading concepts, the PCRA court accepted Dr. Armstrong’s assertion that
Appellee’s ability to explain an advanced concept did not negate a finding of intellectual
disability.
2. Discussion
We begin our discussion by reaffirming the standard that this Court adopted in
Miller: a petitioner seeking Atkins relief has the burden to prove by a preponderance of
the evidence that he is intellectually disabled, and therefore, not subject to the death
penalty. The PCRA court, as fact finder, had the responsibility of determining whether
Appellee exhibits mild mental retardation or simply suffers from low to borderline
intellectual functioning. While we recognize that the PCRA court’s factual findings and
credibility determinations are entitled to great deference if they are supported by the
record, a PCRA court may not base its decision on speculation derived from testimony it
finds credible. Commonwealth v. Simpson, ---Pa.---, 66 A.3d 253, 259 n. 6 (Pa. 2013).
After consideration of all the relevant information, we find the PCRA court’s conclusion
that Appellee is “mentally retarded” is not supported by substantial evidence.
In determining Appellee exhibits significant subaverage intellectual functioning,
the PCRA court dismissed Appellee’s pre-Atkins I.Q. tests in which he received scores of
80, 85, and 82 as it found the Commonwealth’s expert, Dr. Spangler, “could not
“specifically vouch for the veracity or accuracy of these earlier tests.” PCRA Op. at 7.
The PCRA court’s suggestion that the Commonwealth was required to validate
Appellee’s normal I.Q. scores ignores the standard of review giving Appellee the burden
[J-73-2013] - 33
to prove his claim of intellectual disability. There is no basis for the PCRA court’s
assertion that, according to Dr. Crown, Appellee’s early test scores would have been
“nullified” by factors such as “inconsistent testing conditions, wildly divergent median
ranges, and out-of-date testing measures (known as the ‘Flynn effect’).” PCRA Ct. Op.
at 8. Upon our review of the trial transcript, we find no support in Dr. Crown’s testimony
for any of these findings by the PCRA court.7
Moreover, defense experts did not claim Appellee’s first two I.Q. scores were
inaccurate, but simply noted the accuracy of the tests could not be assessed without the
raw data of each test. In an apparent contradiction, Dr. O’Brien, who admittedly had not
reviewed Appellee’s pre-Atkins results before he prepared his expert report, refused to
assess the reliability of these tests but conceded he relied on the results of Dr. Crown and
Dr. Armstrong’s post-Atkins testing without reviewing the raw data of their tests. Most
significantly, Appellee’s own experts offered conflicting opinions on whether Appellee’s
scores demonstrated “mental retardation” or borderline intellectual functioning; while Dr.
Crown refused to rely on Appellee’s early I.Q. scores and Dr. Armstrong did not comment
on the reliability of these tests, Dr. Martell felt Appellee’s first two test scores, which were
above the threshold of intellectual disability, were reliable.
The defense also acknowledged Appellee was never diagnosed as “mentally
retarded” prior to raising his Atkins claim; Dr. Martell found Appellee’s label as
7 Dr. Armstrong, however, made a passing reference to the “Flynn effect” on cross-
examination to suggest Appellee’s pre-Atkins scores be adjusted to account for outdated
norms. We express no opinion on whether the Flynn effect is a valid scientific theory as
Dr. Armstrong found Appellee’s scores, even when adjusted for possible inflation, are
above the threshold for intellectual disability. Further, neither party has developed any
argument on this topic and Appellee claims the PCRA court’s finding with respect to the
Flynn effect is “peripheral” to its ultimate ruling. Appellee’s Brief, at 43 n.8.
[J-73-2013] - 34
“brain-injured” in grade school did not necessarily denote an injury, but could have
referred to learning disabilities. Dr. Armstrong agreed that Appellee’s mental impairment
was consistent with other neurological abnormalities other than intellectual disability.
The only suggestion that Appellee was intellectually disabled came from his teacher thirty
years ago, Ms. Pezola, who admittedly did not know the difference between the terms
“brain-injured” and “mentally retarded” and generalized all her students at the Ashbourne
School into the category of “mental retardation.” However, Dr. Armstrong admitted Ms.
Pezola had limited experience as she had just begun her first year teaching Appellee’s
class after receiving certification in special education. Dr. Spangler, the only expert who
had knowledge of the Ashbourne School’s practices when Appellee was enrolled there in
the 1970’s, indicated the Ashbourne School specialized in educating children with
learning disabilities and did not seek to enroll “mentally retarded” children. While
acknowledging that Appellee did repeat the first grade three times, Dr. Spangler pointed
out that Appellee’s learning advanced at a normal rate after he was enrolled at the
Ashbourne School.
Although defense experts agreed that mental retardation can be distinguished
from other neurological abnormalities such as learning disabilities, the PCRA court’s
commentary on the record demonstrated that it believed that all students with problems
learning could be characterized as “mentally retarded.” In failing to recognize this
distinction, the PCRA court improperly equated evidence suggesting that Appellee may
have had learning disabilities or another neurological abnormality with proof satisfying
Appellee’s burden to show significant subaverage intellectual functioning under the first
prong of the Miller definition of mental retardation.
[J-73-2013] - 35
After giving no weight to Appellee’s scores in the low to normal I.Q. range and the
fact that Appellee was never diagnosed with mental retardation until he sought Atkins
relief, the PCRA court placed emphasis on Appellee’s I.Q. score of 57 obtained seven
years after his Atkins petition was filed. Although all experts found Appellee did not
purposefully manipulate his score, the PCRA court dismissed Dr. Spangler’s suggestion
that this score, which was 23 to 28 points lower than previous scores, should be viewed
with suspicion as Appellee may not have been motivated to do well on a test leading to his
execution. While indicating the Mittenburg index showed Appellee was not malingering,
Dr. Martell conceded Appellee had a motive not to do well on post-Atkins testing.
Although Dr. Crown admitted that lack of effort could explain the “substantial”
difference in scores, he adamantly maintained there was “no evidence” Appellee did not
perform to the best of his ability even after Dr. Crown was confronted with recorded
conversations in which Appellee told his sister about another death-row inmate who had
played the “nut role” to “beat the system” and shared his lawyers urged him to avoid going
to the law library, writing to his family, or talking to inmates believed to be “snitches.” As
there may be a powerful incentive to malinger and to slant evidence in cases where a
petitioner has not been clinically diagnosed with intellectual disability and the record
before the factfinder was created to seek relief under Atkins, this Court has found a
petitioner’s motivation to slant evidence of intellectual disability is a relevant consideration
for Atkins factfinders in assessing not only the validity of results of post-Atkins intelligence
testing, but in analyzing the entire Atkins petition. Commonwealth v. DeJesus, 619 Pa.
70, 58 A.3d 62, 85-86 (Pa. 2012).
[J-73-2013] - 36
While Dr. Martell accepted Appellee’s childhood I.Q. scores outside the range of
intellectual disability as reliable, defense experts did not provide adequate support for the
theory that the dramatic drop in Appellee’s I.Q. was caused by recreational boxing and
exposure to toxins. Even though Dr. Martell had no specific information about Appellee’s
limited participation from age 14 to 15 in a children’s boxing program, did not inquire if
safety equipment was used, and admitted there was no evidence that Appellee had been
injured in this short period, Dr. Martell practically diagnosed Appellee with dementia
pugilistica (“boxer’s brain”) and compared him to fighter Mohammed Ali. When asked if
Appellee had been injured in boxing, his mother indicated she could only recall one
occasion in which Appellee’s ear and eye were swollen and other occasions where he
went to bed early. Mrs. Hackett expressed relief that Appellee’s participation in boxing
“didn’t last for .. too long.” Based on the foregoing claims, Dr. Spangler felt there was no
evidence Appellee’s limited recreational boxing as a fourteen-year old caused any brain
damage and pointed out that Appellee’s obtained his highest I.Q. score at age fifteen on
an exam Dr. Martell found was probably reliable. Moreover, as there was no evidence
that Appellee was injured in the boxing program, the PCRA court’s finding Appellee had
“repeated head injuries” is not supported by the record.
In a similar manner, while there is no dispute that Appellee was exposed to
creosote, Sevin, malathion, and Roundup in his adolescence, the defense did not show a
causal connection between these chemicals and Appellee’s drop in I.Q. or his alleged
intellectual disability. None of the defense experts claimed to have expertise in this area;
Dr. Martell showed a lack of knowledge on this topic when he relied on Appellee’s
mother’s assertion that all of these chemicals had been banned, as Dr. Armstrong
[J-73-2013] - 37
admitted the chemicals were commercially available and indicated that malathion is
currently used in shampoo to treat head lice in children. Although Dr. Armstrong claimed
that malathion causes a “variety of neurological symptoms” including memory loss and
alleged that creosote is carcinogenic, neither Dr. Martell nor Dr. Armstrong could point to
any scientific studies or reports which suggest these chemicals could cause significant
changes in intellectual functioning levels. As such, the record lacks adequate support for
Appellee’s theory of a dramatic I.Q. drop in his adolescence.
As noted above, the results of intelligence testing alone are not sufficient to assess
intellectual disability as an individual must also show significant adaptive limitations. In
assessing the second prong of the Miller test, the PCRA court relied heavily on the
opinion of Dr. Martell, who did not interview Appellee or perform any standardized testing,
but based his reports on selective portions Appellee’s school records and affidavits of his
family members. Appellee’s main expert on adaptive functioning, Dr. Martell, conceded
that he did not have the opportunity to review all of Appellee’s school records. Although
Dr. Martell emphasized school reports indicating Appellee was easily manipulated, had
no social skills, and required support and direction, Dr. Martell candidly admitted he had
never seen reports indicating that Appellee himself was manipulative but outgoing and
well-liked by his peers and did not mention reports indicating Appellee was capable of
completing a task independently in a timely manner. While Dr. Martell emphasized
claims from Appellee’s family that he could not tie his shoes and wet himself in school
until he was eleven, none of Appellee’s school records document these issues and Ms.
Pezola, who taught Appellee when he was ten, denied he had such problems. Although
the PCRA court found Appellee’s conduct in climbing a tree with a chainsaw
[J-73-2013] - 38
demonstrated deficits in adaptive functioning, the PCRA court failed to recognize that
Appellee was intoxicated during this incident.
Further, the PCRA court did not identify any evidence showing Appellee had
significant adaptive limitations in his adolescence or adult life, but limited its review to his
developmental delay in early childhood and brushed aside evidence of adaptive skills he
developed. By age seventeen, Appellee’s school records indicated he was progressing
normally and contained no indication he had any problems with skill acquisition,
communication, or motor skills. In running his own business, Appellee operated lawn
and snow removal equipment and scheduled his employees to provide service to
numerous clients. While Appellee’s mother claimed to have done the bookkeeping, she
admitted Appellee was able to handle financial matters in paying each worker according
to a predetermined rate. Before age eighteen, Appellee purchased two trucks for his
business and paid off the loans ahead of time. Appellee’s success allowed him to open
an office and become part-owner of a beach home.
Appellee also showed manipulative behavior, as he lived in the Ogrod home and
store his business equipment there without paying rent, used his business to target his
clients for burglaries he later committed, and deceived authorities into allowing him off
work release to travel to the shore on the weekends where he claimed to have contracts.
After Appellee was incarcerated, Appellee showed his strong ability to communicate
through well-written prison grievances and demonstrated understanding of stock market
concepts and legal precedent in capital cases. We agree that the defense theories seem
to be internally inconsistent as Dr. Martell conceded Appellee’s adaptive functioning was
on “a divergent course” with Dr. Crown’s I.Q. results; while Appellee’s I.Q. was
[J-73-2013] - 39
supposedly plummeting, his adaptive functioning capabilities improved over time. While
Appellee’s ability to work and function in society would not necessarily prevent the PCRA
court from finding Appellee is intellectually disabled, the record does not include
evidence that Appellee had any significant adaptive functioning limitations beyond his
early childhood years.
The PCRA court also accepted the defense’s claim that Appellee’s crime was not
relevant to assess his adaptive functioning; Dr. Armstrong found Appellee had deficits in
planning his behavior based on his errors on a maze drawing test but indicated it was not
important to ascertain how Appellee planned and organized his business and did not find
it necessary to consider the facts of Appellee’s crimes. However, Dr. Spangler felt that
Appellee’s crimes were not similar to offenses committed by intellectually disabled
individuals which tend to show very little “aforethought.” This observation is consistent
with the United States Supreme Court’s finding in Atkins of “abundant evidence that
[intellectually disabled individuals] often act on impulse rather than pursuant to a
premeditated plan, and that in group settings they are followers rather than leaders.”
Atkins, 536 U.S. at 318, 122 S. Ct. at 2250, 153 L. Ed. 2d 335.
In this case, Appellee planned the attack which ultimately led to Dunne’s death.
Initially, Appellee arranged to hire a hitman, offered two assassins considerable money,
and gave out the victim’s pictures to identify his targets. When these plans fell through,
Appellee discussed the murder with his co-defendants in advance, drove the men to
Ogrod’s home in the middle of the night, and directed them to enter the basement of
Ogrod’s unlocked home where he knew the victims were sleeping. To conceal his
participation in the crime, Appellee attempted to fabricate an alibi and destroyed evidence
[J-73-2013] - 40
which included the pictures he gave a potential hitman and a crowbar used in the murder.
This crime, which demonstrated Appellee was able to initiate, devise, and lead others in a
premeditated plan, was relevant to an assessment of his adaptive functioning but was
ignored by the PCRA court.
Based on the foregoing reasons, we find the PCRA court’s conclusion that
Appellee is intellectually disabled is not supported by substantial evidence. The PCRA
court erred in concluding that Appellee met his burden to establish intellectual disability
by a preponderance of the evidence when it improperly equated borderline intellectual
functioning with “mental retardation” and failed to identify evidence of Appellee’s
significant limitations in adaptive functioning. Thus, we reverse the PCRA court’s
finding that Appellee is exempt from the death penalty.
B. Assessing the Atkins standard adopted in Pennsylvania
In its second issue, the Commonwealth asks this Court to “adopt a more objective
legal definition of mental retardation to combat fraud upon the courts.” Commonwealth’s
Brief, at 3. Claiming the clinical definitions of “mental retardation” set forth in the DSM-IV
and AAMR are inherently subjective, the Commonwealth asserts that such definitions are
set by “biased organizations that have policy statements against the death penalty” and
supported by professional journals that “encourage forensic psychologists to interpret
mental retardation as broadly as possible to avoid [a defendant’s] execution.”
Commonwealth’s Brief, at 25. While the Commonwealth recognizes this Court declined
to recalibrate the three-part Miller standard in DeJesus, the Commonwealth recommends
this test be defined as an “objective legal standard” to reduce the possibility of feigned
Atkins claims. Specifically, the Commonwealth recommends a petitioner be required to
[J-73-2013] - 41
prove an I.Q. score of 70 or below, establish adaptive functioning limitations by a formal
assessment tool, and demonstrate onset before age eighteen, without reliance on
affidavits of interested family members or the “creative interpretation” of school records.
Commonwealth’s Brief, at 43. The Commonwealth also points to a measure taken by
the Oklahoma legislature in passing a law that precludes defendants who have received a
score of 76 or higher on a standardized I.Q. test from seeking Atkins relief. See 21 Okla.
Stat. Ann. § 701.10b(C).
Appellee asks this Court to decline the Commonwealth’s request to alter the Atkins
standard for several reasons. First, Appellee asks this Court to find this issue waived for
the Commonwealth’s failure to raise it during the PCRA proceedings or in its statement
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Second, Appellee finds
unfounded the Commonwealth’s assertion that clinical definitions are biased towards an
anti-death penalty agenda as capital litigation presents a small fraction of the issues
employing the assessment of intellectual disability, which extends to a broad array of
contexts including, but not limited to, education, the provision of governmental services,
and the medical and mental health fields. Lastly, Appellee asserts there is no evidence
of fraud in this case that warrants a change in the Atkins standard and claims the
Commonwealth failed to show that the current Miller standard is unworkable as PCRA
courts are capable of making credibility determinations when presented with conflicting
facts and testimony.
Given that the Commonwealth has successfully argued that Appellee failed to
prove his intellectual disability by a preponderance of the evidence, it is unnecessary for
this Court to evaluate the Commonwealth’s request to adopt a more stringent Atkins
[J-73-2013] - 42
framework as Appellee has not satisfied the three-prong standard this Court
implemented in Miller. Moreover, while the Commonwealth proposes that this Court
should revisit Miller, reject the clinical definitions of intellectual disability, consider
adopting cutoff I.Q. scores, and eliminate the petitioner’s ability to rely on anecdotal
evidence, the Commonwealth’s challenge to the existing substantive Atkins standard
involves policy concerns that would be more appropriately considered by the
Pennsylvania General Assembly. 8 Although this Court was tasked with the
responsibility of setting procedures to review Atkins claims in light of the Legislature’s
inaction, this Court has repeatedly refused to redefine the existing Atkins standard which
derives from clinical definitions recognized by the United States Supreme Court in
Atkins. See DeJesus, 619 Pa. at 106-107, 58 A.3d 85; Crawley, 592 Pa. at 227, 924
A.2d at 615. Accordingly, we decline the Commonwealth’s request to alter the
standard for measuring intellectual disability for Atkins purposes in Pennsylvania.
III. CONCLUSION
For the foregoing reasons, we hold that the PCRA court erred in granting
Appellee’s petition for relief; accordingly, the PCRA court’s decision and accompanying
8 This Court has consistently refused to adopt a “cutoff IQ score” for determining mental
retardation, since it is the “interaction between limited intellectual functioning and
deficiencies in adaptive skills that establish mental retardation.” Crawley, 592 Pa. at
227, 924 A.2d at 615 (quoting Miller, 585 Pa. at 155, 888 A.2d at 631). On a similar
note, the United States Supreme Court, by a 5-4 vote, recently struck down Florida
legislation which provided that petitioners who had an I.Q. score above 70 had no right to
Atkins relief and were precluded from presenting any further evidence of intellectual
disability. Hall, ---U.S.---, 134 S.Ct. at 1990. Reasoning this strict I.Q. cutoff violated
the Eighth Amendment’s prohibition on cruel and unusual punishment, the Hall Court
provided that Atkins standards must allow petitioners who score within an I.Q. range
accounting for the test’s margin of error to present additional evidence of intellectual
disability regarding difficulties in adaptive functioning.
[J-73-2013] - 43
order of June 28, 2012, which found Appellee “mentally retarded” and exempt from the
death penalty, is hereby vacated. We remand to the trial court for the reinstatement of
the death sentence. Jurisdiction is relinquished.
Messrs. Justice Eakin and McCaffery join the opinion.
Mr. Chief Justice Castille joins Parts I, II (A) and III of the opinion.
Mr. Chief Justice Castille files a concurring opinion.
Mr. Justice Baer files a dissenting opinion in which Mr. Justice Saylor and
Madame Justice Todd join.
[J-73-2013] - 44
Commonwealth, Aplt v. Hackett, R.
Court: Supreme Court of Pennsylvania
Date filed: 2014-08-18
Citations: 99 A.3d 11, 626 Pa. 567, 2014 Pa. LEXIS 2096
Copy CitationsCombined Opinion