Commonwealth v. Flor, R., Aplt.

[J-120-2019] [MO: Mundy, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 771 CAP

:

Appellee : Appeal from the Order dated

: November 21, 2018 (docketed

: November 26, 2018) in the Court of

v. : Common Pleas, Bucks County,

: Criminal Division at No. CP-09-CR-

: 0006917-2005.

ROBERT ANTHONY FLOR, :

: SUBMITTED: December 19, 2019

Appellant :

DISSENTING OPINION

JUSTICE WECHT DECIDED: September 22, 2021

In 2006, Robert Anthony Flor pleaded guilty to first-degree murder. A jury

sentenced him to death. Flor filed a timely petition pursuant to the Post Conviction Relief

Act.1 Flor claimed, inter alia, that he was ineligible for the death penalty pursuant to Atkins

v. Virginia, 536 U.S. 304 (2002), and its progeny because he is intellectually disabled.2

The PCRA court rejected Flor’s claim and denied relief. Today’s learned Majority affirms.

Upon review of the extensive record in this capital case, I am constrained to

disagree. Flor has established that he is intellectually disabled. He is now constitutionally

ineligible for the death penalty. The record does not support the PCRA court’s findings

1 42 Pa.C.S. § 9541-9546.

2 At the time that Atkins was decided, the prevailing terminology in the medical,

professional, and legal community was “mental retardation.” Atkins, 536 U.S. at 317.

However, since that time, the term has been replaced with “intellectual disability.” See

Hall v. Florida, 572 U.S. 701, 704 (2014); Commonwealth v. Cox, 240 A.3d 509, 510 n.2

(Pa. 2020) (Cox IV); Commonwealth v. Thomas, 215 A.3d 36, 44 n.10 (Pa. 2019).

to the contrary. In rejecting Flor’s evidence, the PCRA court made a number of legal

errors that are contrary to the record and to the governing law as propounded in Atkins

and its progeny. Those legal missteps prevent me from joining the Majority’s affirmance

of the PCRA court’s order. Hence, this dissent.

I. Atkins - Merits

The Eighth Amendment to the United States Constitution bars the infliction of “cruel

and unusual punishments.” In Atkins, the Supreme Court of the United States held that,

consistent with our society’s evolving standards of decency, executing intellectually

disabled offenders constitutes a cruel and unusual punishment and, therefore, is barred

by the Eighth Amendment.3 Since Atkins, numerous decisions have identified and refined

the manner in which courts assess whether an offender is intellectually disabled.4

In Hall v. Florida, the Supreme Court held that an Atkins determination must be

“informed by the medical community’s diagnostic framework.”5 Relying upon manuals

from the American Psychiatric Association (APA) and the American Association on

Intellectual and Developmental Disabilities (AAIDD), Moore-I held that current manuals

reflect improved understanding over time, and offer “the best available description of how

mental disorders are expressed and can be recognized by trained clinicians.”6

3 Atkins, 536 U.S. at 321.

4 See generally Cox IV, 240 A.3d 509.

5 572 U.S. 701, 703 (2014); see also Moore v. Texas, 137 S.Ct. 1039, 1053 (2017)

(Moore-I) (providing that the “medical community’s current standards” guide Atkins

determinations).

6 Moore-I, 137 S.Ct. at 1053. Moore-I relied specifically upon the 11th edition of the

AAIDD clinical manual (the AAIDD, Intellectual Disability: Definition, Classification, and

Systems of Supports (2010) (hereinafter AAIDD-2010)), and upon the 5th edition of the

Diagnostic and Statistical Manual of Mental Disorders published by the APA (the

Diagnostic and Statistical Manual of Mental Disorders (2013) (hereinafter DSM-5)).

[J-120-2019] [MO: Mundy, J.] - 2

The APA’s DSM-5 and the AAIDD-2010 were the most recent diagnostic manuals

available to the post-conviction court in this case. Based upon the diagnostic criteria

recognized by the APA and the AAIDD, this Court has held that an intellectual disability

diagnosis results from three findings: (1) deficits in intellectual functioning as measured

by intelligence quotient testing; (2) deficits in adaptive functioning; and (3) the onset of

these deficits before the age of eighteen.7

Intellectual functioning is defined numerically by an intelligence quotient (IQ).

Generally, scores of seventy-five and below fall within the presumptive range of

intellectual disability.8 Under current diagnostic guidelines, both the APA and the AAIDD

have rejected rigid IQ cutoffs, instead favoring testing and clinical assessment.9 When

courts in Florida relied too heavily upon IQ scores to establish or refute intellectual

disability, the Supreme Court of the United States stepped in, holding that such

overreliance was an impermissible deviation from the most recent governing diagnostic

standards.10 When courts in Texas deviated from the APA’s and AAIDD’s diagnostic

standards by relying upon that state’s “Briseno” factors in assessing the adaptive deficits

prong,11 the Supreme Court rejected these deviations.12 Consistent with these High Court

directives, this Court has recognized that the “chief import of [Hall, Brumfield and Moore-

7 Commonwealth v. Miller, 888 A.2d 624, 631 (Pa. 2005).

8 Def. Ex. 24, DSM-5, at 37; Brumfield v. Cain, 576 U.S. 305, 315 (2015);

Commonwealth v. Williams, 61 A.3d 979, 983 (Pa. 2013).

9 Def. Ex. 24, DSM-5, at 33, 37; Def. Ex. 28, AAIDD-2012, at 23.

10 Hall, 572 U.S. at 701; see also Brumfield, 576 U.S. at 314 (“[A]n IQ test result

cannot be assessed in a vacuum.”).

11 See Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004).

12 Moore-I, 137 S.Ct. at 1051-52.

[J-120-2019] [MO: Mundy, J.] - 3

I] is the central role of the societal consensus to rely on medical and professional expertise

in defining and diagnosing intellectual disability.”13

At the hearing on Flor’s post-conviction petition, Flor presented five mental health

experts: Drs. Martell, Voskanian, Mack, Tepper, and Dougherty. Each testified that Flor

is intellectually disabled under current diagnostic standards. Two of these experts, Dr.

Mack and Dr. Voskanian, testified at Flor’s penalty phase in 2006, but, at that time, did

not assess Flor specifically for the purpose of ascertaining whether he was intellectually

disabled. However, Dr. Tepper testified at the penalty phase in 2006 that Flor was not

intellectually disabled. In post-conviction proceedings, Drs. Mack, Voskanian, and

Tepper (reversing his earlier conclusion), reviewed additional information about Flor,

considered this information in accord with current diagnostic criteria, and diagnosed Flor

with intellectual disability.

Dr. Mack administered an IQ test to Flor in 2006 that resulted in a score of seventy-

six, which, Dr. Mack testified, had to be lowered by three points to account for the Flynn

Effect.14 The Flynn Effect measures the drift of test scores in the population from the date

the test was normed and reflects a finding that the average IQ score of the population

increases at a rate of three points each decade, causing IQ scores to inflate at the same

rate.15 To correct for this norm obsolescence, the AAIDD advises that any IQ score

13 Commonwealth v. Cox, 204 A.3d 371, 387 (Pa. 2019) (Cox III).

14 Notes of Testimony (“N.T.”), 10/18/2013, at 46-50, 54-78, 150-51, 209-13.

15 Cox IV, 240 A.3d at 522 n.23 (“The DSM-IV identifies the Flynn Effect as one

possible factor that may affect the validity of a particular IQ assessment score. The effect

refers generally to the production of overly high IQ scores that result from comparing

current test results to out of date norms.”) (citing Cox III, 204 A.3d at 385 and DSM-IV at

37); see also Maj. Op. at 18, n.14.

[J-120-2019] [MO: Mundy, J.] - 4

should be reduced by 0.3 points each year since the test was normed.16 The APA likewise

recognizes the Flynn Effect.17 Like Dr. Mack, Flor’s other experts testified that IQ scores

should take into account and be corrected for this norm obsolescence. Flor’s IQ was

tested in 2006 using the Wechsler Adult Intelligence Scale-III, a test that was normed ten

years earlier. Accounting for the Flynn Effect, Flor’s 2006 IQ score would be reduced

from seventy-six to seventy-three, within the presumptive range for intellectual disability.

Dr. Mack testified that Flor is intellectually disabled.18 Dr. Mack attributed his

diagnosis to new information, including learning that Flor falsely had reported in 2006 that

he had obtained his GED at age nineteen,19 and learning that Dr. Davies had diagnosed

Flor with fetal alcohol syndrome (FAS), a risk factor for intellectual disability. Similarly,

Dr. Tepper reconsidered evidence of Flor’s intellectual disability in connection with the

post-conviction proceedings with the aid of updated evidence regarding Flor’s adaptive

functioning and deficits before the age of eighteen. Dr. Tepper testified that he now

believes Flor to be intellectually disabled.20 According to Dr. Tepper, Flor was born with

FAS, which may demonstrate the etiology of Flor’s intellectual disability.21 Dr. Voskanian

also testified that he believes Flor to be intellectually disabled based upon new

16 See Def. Ex. 27, AAIDD-2010, at 37 (“[B]est practices require recognition of a

potential Flynn Effect when older editions of an intelligence test (with corresponding older

norms) are used in the assessment or interpretation of an IQ score.”).

17 Def. Ex. 24, DSM-5, at 37 (“Factors that may affect [IQ] test scores include practice

effects and the ‘Flynn Effect’ (i.e., overly high scores due to out-of-date test norms).”).

18 N.T., 10/18/2013, at 183.

19 Id. at 202.

20 N.T., 7/9/2015, at 49-50, 56-59.

21 Id. at 52.

[J-120-2019] [MO: Mundy, J.] - 5

information, including lay witness declarations and recent reports by Drs. Patton, Davies,

Novick-Brown, and Greenspan.22

In addition, Flor presented the testimony of Edward Dougherty, Ed.D., a

psychologist who conducted a screening assessment of Flor in March 2006 and identified

indicia of FAS and cognitive and intellectual impairments. In 2013, Dr. Dougherty

reviewed additional information regarding Flor’s background and adaptive functioning, Dr.

Mack’s testing, and Dr. Davies’ FAS assessment, and diagnosed Flor with intellectual

disability.23

Daniel Martell, Ph.D., a neuropsychologist, diagnosed Flor with intellectual

disability, assessed Flor’s adaptive deficits, and critiqued the Commonwealth’s expert.

Alan Kaufman, Ph.D., a psychologist, assessed Flor’s deficits in intellectual functioning

and found that this prong of intellectual disability was satisfied. James Patton, Ed.D., an

expert in intellectual disability, and Natalie Novick-Brown, Ph.D., a psychologist,

assessed Flor’s adaptive functioning prior to the age of eighteen and found that this prong

was satisfied.

Additionally, Flor presented other experts who testified that they had diagnosed

him with FAS, which assisted in establishing the age of onset and the origin of Flor’s

intellectual disability. Julian Davies, M.D., a FAS diagnostic specialist, found in 2012 that

Flor suffered from FAS. Dr. Novick-Brown, who specializes in fetal alcohol spectrum

disorder (FASD), also concluded that Flor suffered from FAS.

Neuropsychologist Bernice Marcopulos, Ph.D., evaluated Flor for the

Commonwealth. Dr. Marcopulos conceded that Flor demonstrated deficits in intellectual

22 N.T., 5/29/2014, at 119-30.

23 N.T., 10/18/2013, at 39-71.

[J-120-2019] [MO: Mundy, J.] - 6

functioning. Although Dr. Marcopulos disagreed with the impact of the Flynn Effect upon

Flor’s IQ score, she agreed that Flor’s score of seventy-six satisfied the first prong, as

current standards do not impose a rigid cut-off. 24 Accordingly, this prong was not in

dispute before the PCRA court. Dr. Marcopulos did not believe, however, that the

remaining two prongs of intellectual disability were satisfied.

The adaptive functioning criterion is met when deficits are present in at least one

of three domains: conceptual, social, or practical.25 With respect to the conceptual

domain, Dr. Mack administered a neuropsychological battery to Flor in 2006 and

concluded that Flor’s impairments included deficits in executive functioning, memory,

attention, verbal fluency, word finding, arithmetic, reading comprehension, spelling, and

constructional dyspraxia.26 Dr. Marcopulos, testifying for the Commonwealth, agreed with

the manner in which Dr. Mack administered, scored, and interpreted the testing, and

agreed with his conclusion.27 This testing established deficits in the conceptual domain.

Dr. Marcopulos declined to diagnose Flor with intellectual disability, even though only one

adaptive functioning criterion needs to be established.

Turning to academic functioning, which also pertains to the conceptual domain,

the evidence of Flor’s education history demonstrates that he began to do poorly

academically in middle school and ultimately dropped out of school in the eleventh grade.

Flor’s decline was reflected in standardized testing. Flor’s experts also found deficits in

24 N.T., 2/16/17, at 110-11.

25 Def. Ex. 24, DSM-5, at 37; Def. Ex. 32, AAIDD-2010, at 43.

26 N.T., 11/13/2006, at 144-71; N.T., 11/14/2006, at 8-16; N.T., 2/16/2017, at 131-56.

27 N.T., 12/2/2016, at 50-53, 59-61; N.T., 2/16/2017, at 143-44.

[J-120-2019] [MO: Mundy, J.] - 7

executive functioning, self-direction, and concept formation, and found that Flor exhibited

deficits in communication before and into adulthood.28

With respect to the social domain, the record demonstrates that Flor began

experiencing deficits in interpersonal relationships as a child, and that those difficulties

continued throughout his life.29 In addition, Flor was emotionally unstable during

childhood and had a similar history of emotional dysregulation as an adult.30 Relevant to

the practical domain, before the age of eighteen, Flor demonstrated poor financial skills,

had difficulty with potty-training, required assistance with hygiene and dressing, and

engaged in risky behavior.31 After the age of eighteen, Flor was able to complete only

simple tasks and struggled with obtaining and keeping employment.32 Throughout his

life, Flor exhibited impaired functioning and judgment.33

Flor also presented evidence demonstrating that his deficits were present before

the age of eighteen and were correlated to brain damage caused by FAS.34 The AAIDD

has identified risk factors that can be associated with a diagnosis of intellectual

28 N.T., 2/8/2018, at 61, 74-77, 85-86; see also N.T., 2/17/2017, at 45, 89-90 (Dr.

Marcopulos).

29 N.T., 1/22/2015, at 84-85; N.T., 2/17/2017, at 42-55; Def. Ex. 62, Interviews, at 34-

40; N.T., 2/8/2018, at 92-95.

30 N.T., 11/13/2016, at 90-91; N.T., 11/14/2016, at 111-12; Def. Ex. 8, Interviews, at

4; N.T., 12/2/2016, at 156; N.T., 2/8/2018, at 98-100.

31 N.T., 2/8/2018, at 102-06; Def. Ex. 62, Interviews, at 44-48.

32 N.T., 2/17/2017, at 132-37, 140-41, 148-51; N.T., 2/8/2018, at 105, 132-37; Def.

Ex. 31, Interview; Def. Ex. 62, Interviews, at 52-55.

33 N.T., 2/17/2017, at 137, 148-50, 150-51.

34 N.T., 1/22/2015, at 37-38.

[J-120-2019] [MO: Mundy, J.] - 8

disability,35 one of which is FAS. Flor proved that he suffered from FAS, which is the most

severe diagnosis on the fetal alcohol disorder spectrum.36 Dr. Davies, a fetal alcohol

diagnostician, evaluated Flor and diagnosed Flor with FAS based upon three factors:

growth deficiency, brain dysfunction, and a cluster of three facial features unique to

FAS.37 Psychologist Natalie Novick-Brown, Ph.D., performed a functional assessment

and determined that Flor’s impairments were consistent with, and could be explained by,

FAS.38 Flor also presented evidence documenting a family history of abuse and a history

of head injuries, both of which are risk factors associated with intellectual disability.39

The PCRA court found that Flor’s experts were not credible. Flor argues,

persuasively in my judgment, that, in doing so, the PCRA court erroneously disregarded

the current diagnostic standards, employed the Briseno factors contrary to United States

Supreme Court precedent, and relied upon misperceptions of a kind specifically

invalidated by this Court and by the U.S. Supreme Court. Flor further assertsagain,

persuasivelythat the PCRA court also made conclusions that are not supported by the

record.

For example, the PCRA Court found no credible evidence of intellectual deficits in

the record.40 Yet, there was unanimity among all of the experts, including the

Commonwealth’s expert, that the evidence established Flor’s deficient intellectual

35 Def. Ex. 59, AAIDD-2010, at 57-62, 68.

36 N.T., 6/26/2014, at 134-37; N.T., 1/22/2015, at 37-38, 54-55; Def. Ex. 1, at 188.

37 N.T., 6/26/2014, at 27-28, 49, 63; Def. Ex. 1, at 188.

38 N.T., 1/22/2015, at 34, 44-100.

39 N.T., 11/13/2006, at 7, 48, 55-56, 62, 74; N.T., 2/8/2018, at 37-40, 207-08; N.T.,

5/9/2018, at 204-06; Def. Ex. 1, at 192; Def. Ex. 6, at 30-31; Def. Ex. 59, at 60; Def. Ex.

62, at 10-11.

40 PCRA Ct. Op. at 62, 72, 121, 127-32.

[J-120-2019] [MO: Mundy, J.] - 9

functioning. As Commonwealth witness Dr. Marcopulos testified, the greater flexibility

that is now prevalent with respect to IQ scores stems from the AAIDD’s and APA’s current

diagnostic standards, standards that our courts are bound to consider.41 The PCRA court

had no authority to disregard diagnostic standards, applicable precedent, or unanimity

among the experts. Accordingly, the PCRA court’s finding that Flor failed to establish the

intellectual functioning prong of intellectual disability violates Atkins and its progeny, and

entirely disregards the uncontradicted evidence of record.

The Majority’s affirmance of the PCRA court’s disregard of this evidence, and its

characterization of Flor’s 2006 IQ score as encompassing “a range of uncertainty,”

compound this error.42 Although there was some dispute about the impact of the Flynn

Effect upon Flor’s 2006 IQ score, Dr. Marcopulos agreed with defense evidence that Flor

satisfied the first prong of intellectual disability. 43 The record demonstrates unanimity

41 Brumfield, 576 U.S. at 315; Hall, 572 U.S. at 710-11.

42 See Maj. Op. at 48.

43 The Majority agrees that a strict IQ cut-off is not warranted under current diagnostic

standards. See Maj. Op. at 27; Hall, 572 U.S. at 712–13. As the High Court has

explained:

The professionals who design, administer, and interpret IQ tests have

agreed, for years now, that IQ test scores should be read not as a single

fixed number but as a range. Each IQ test has a “standard error of

measurement,” often referred to by the abbreviation “SEM.” A test’s SEM

is a statistical fact, a reflection of the inherent imprecision of the test itself.

An individual’s IQ test score on any given exam may fluctuate for a variety

of reasons. . . .

The SEM reflects the reality that an individual’s intellectual functioning

cannot be reduced to a single numerical score. For purposes of most IQ

tests, the SEM means that an individual's score is best understood as a

range of scores on either side of the recorded score. The SEM allows

clinicians to calculate a range within which one may say an individual’s true

IQ score lies.

[J-120-2019] [MO: Mundy, J.] - 10

among all of the experts who opined upon the first prong of an intellectual disability

diagnosis that Flor demonstrated deficits in intellectual functioning as measured by

intelligence quotient testing. The lower court had no basis upon which to discredit this

unanimous finding.

It appears that the PCRA court’s reticence to accept evidence of Flor’s intellectual

deficits was rooted in its skepticism of the Flynn Effect. Although the PCRA Court did not

reject the validity of the Flynn Effect outright, it cited with approval testimony from a

Commonwealth witness, Leigh Hagan, Ph.D.. Dr. Hagan testified that the Flynn Effect

should be considered in evaluating IQ scores, but that IQ scores should not necessarily

be corrected to account for the Flynn Effect.44

Although this Court has not yet spoken to the role of the Flynn Effect in Atkins

proceedings, we have made clear that Atkins assessments must be “informed by the

current professional standards.”45 The AAIDD and the APA acknowledge the role of the

Flynn Effect either directly or indirectly by requiring that test scores be interpreted along

with clinical judgment.46 To the extent that current diagnostic standards recognize that

the Flynn effect at least has some impact upon IQ scores, it should not have been entirely

Id. at 713.

44 N.T., 5/23/2017, at 133-34, 141-42; PCRA Ct. Op. at 126-28.

45 Cox, 204 A.3d at 388 n.17 (agreeing with the Commonwealth that “our resolution

of this case does not require us to opine on the role of the Flynn Effect in the interpretation

of IQ test results. We simply note here that the question of whether to consider the Flynn

Effect should be informed by the current professional standards”).

46 Def. Ex. 27, AAIDD-2010, at 37 (“best practices require recognition of a potential

Flynn Effect when older editions of an intelligence test (with corresponding older norms)

are used in the assessment or interpretation of an IQ score”); Def. Ex. 24, DSM-5, at 37

(“Factors that may affect [IQ] test scores include practice effects and the ‘Flynn Effect’

(i.e., overly high scores due to out-of-date test norms).”). These authorities call into

question the Majority’s holding and the Commonwealth’s argument that no authority

mandates correcting for the Flynn effect. Maj. Op. at 20 n.15; 44.

[J-120-2019] [MO: Mundy, J.] - 11

ignored by the PCRA court. Moreover, the Commonwealth’s own witness conceded that

Flor had established the intellectual deficits prong even without accounting for the Flynn

Effect. There was no record support that allowed the PCRA court to reject the unanimous

opinions of the experts with regard to this prong. The role of the Flynn Effect may be an

interesting, and perhaps controversial, question in Atkins proceedings, but it was not

determinative of the intellectual deficits prong in this case.

The Majority elevates the role of the Flynn Effect in this case in order to dismiss

it.47 Although I disagree that the Flynn Effect was determinative of the first prong of

intellectual disability, I am also skeptical of the Majority’s assertion that there is a lack of

consensus regarding the precise measure of the effect.48 It is worth nothing that when

James Flynn, after whom the effect is named, published his study of the Flynn Effect in

1984, “he derived a ‘very rough estimate of the rate of IQ gains prevalent in America since

1932, an estimate that suggested an overall rate of at least 0.30 points per year.’”49 From

this initial study to his more recent scholarship, Flynn has continued to support his theory

“that the full-scale IQ scores of the American population have increased at an average

rate of 0.3 points per year or three points per decade.”50

47 Maj. Op. at 43-44.

48 See id. at 43.

49 Geraldine W. Young, A More Intelligent and Just Atkins: Adjusting for the Flynn

Effect in Capital Determinations of Mental Retardation of Intellectual Disability, 65 VAND.

L. REV. 615, 624 (2012) (citing James R. Flynn, The Mean IQ of Americans: Massive

Gains 1932 to 1978, 95 PSYCHOL. BULL. 29, 34 (1984)).

50 Id. at 625 (citing James R. Flynn, What Is Intelligence? Beyond the Flynn Effect,

112-14 (Cambridge University Press 2007) (explaining that, for every year that passes

from when an IQ test was standardized, “obsolescence has inflated their IQs by 0.30

points”)); id. at 622 (citing Ulric Neisser, The Rising Curve: Long-Term Gains in IQ and

Related Measures, 5, 12 (APA 1998) (discussing that, although Wechsler studied test

scores of people and discovered a three-point gain per decade, it was Flynn who first

[J-120-2019] [MO: Mundy, J.] - 12

The importance that the AAIDD places upon the Flynn Effect in assessing the first

prong of intellectual disability counsels against the Majority’s rejection of a downward

adjustment of a subject’s score.51 The AAIDD notes that a WAIS-III test normed in 1995

with a mean of 100 would have a mean of 103 in 2005, ten years later.52 The WAIS-IV

manual itself accounts for the Flynn Effect, reflecting an increase of about .3 points for

every year between the release of two different versions of the WAIS test.53 Recognition

of the Flynn Effect is necessary for reliability, particularly when conducting retrospective

diagnoses where “the individual with [intellectual disability] did not receive an official

diagnosis . . . during the developmental period.”54 Of course, the most current norms of

an intelligence test should be used at all times. But for retrospective diagnoses where

this is not possible, the AAIDD indicates that, where a test with aging norms is used, a

correction for the age of the norms is warranted.55 Disregarding the consensus that has

systematically documented the size and significance of these IQ gains; and explaining

that the Flynn Effect of three points per decade has been a “steady and systematic” gain)).

51 See Maj. Op. at 44, n.24.

52 John H. Blume, Sheri Lynn Johnson, and Christopher Seeds, Of Atkins and Men:

Deviations from Clinical Definitions of Mental Retardation in Death Penalty Cases, 18

CORNELL J.L. & PUB. POL’Y 689, 701 (2009) (citing AAIDD, User’s Guide: Mental

Retardation Definition, Classification and Systems of Supports 21 (10th ed. 2007)).

53 Cox III, 204 A.3d at 380 (“The WAIS-IV manual contains data for this effect

between the -III and the current -IV versions reflecting an increase of about .3 point per

year.”).

54 Id.

55 John Matthew Fabian, William W. Thompson, IV, Jeffrey B. Lazarus, Life, Death,

and IQ: It’s Much More than Just a Score: Understanding and Utilizing Forensic

Psychological and Neurospychological Evaluations in Atkins Intellectual Disability/Mental

Retardation Cases, 59 CLEV. ST. L. REV. 399, 416 (2011) (relying upon the AAIDD Ad Hoc

Committee on Terminology and Classification, Intellectual Disability: Definition,

Classification and Systems of Supports 37 (11th ed. 2010)).

[J-120-2019] [MO: Mundy, J.] - 13

emerged to account for the Flynn Effect is unacceptable under Atkins jurisprudence

because it creates “an unacceptable risk that persons with intellectual disability will be

executed.”56 I cannot join the Majority’s view of the record as supporting the PCRA court’s

rejection of the Flynn Effect as having no bearing upon Flor’s IQ test result.

The PCRA court, and now the Majority, place more weight on Dr. Mack’s 2006

testimony that Flor’s IQ scores possibly could have been suppressed than that testimony

can support.57 In November 2006, Dr. Mack identified Flor’s low IQ score, academic

impairments, and cognitive impairments, but had no clear idea as to the cause of Flor’s

brain damage and intellectual impairment. At that time, Flor’s false assertion that he had

obtained his GED demonstrated a higher level of intellectual functioning than was

consistent with the other evidence Dr. Mack observed. Based upon this false assertion

and Flor’s relatively higher results on vocabulary subtests, Dr. Mack concluded that Flor

had a higher level of cognitive functioning earlier in his life and that the later decline was

due to the combination of alcohol use and head trauma. Learning that Flor had not

obtained his GED, together with other new evidence, caused Dr. Mack to reevaluate his

2006 opinion. Dr. Mack’s reconsideration of his prior opinion is consistent with the

requirement that a diagnosis of intellectual disability is to be informed by current

diagnostic standards rather than standards employed in the past.58

The authority upon which the Majority relies to dispute my contention that the Flynn

Effect advises a downward adjustment of a subject’s score supports my position. Maj.

Op. at 44, n.24. In Coleman v. State, 341 S.W.3d 221, 242 n.55 (Tenn. 2011), the

Supreme Court of Tennessee relied upon the AAIDD to hold that “the most current

versions of a test should be used at all times and, when older versions of the test are

used, the scores must be correspondingly adjusted downward.”

56 Hall, 572 U.S. at 704; see also Moore-I, 137 S.Ct. at 1044.

57 Maj. Op at 39, 43, 45.

58 Moore-I, 137 S.Ct. at 1053; Cox III, 204 A.3d at 388 n.17.

[J-120-2019] [MO: Mundy, J.] - 14

Flor further argues, and I agree, that the PCRA court’s analysis of adaptive deficits

likewise was based upon legal error and is not supported by the record. The PCRA court

credited the testimony of Dr. Marcopulos, who opined that Flor could not establish the

second prong of intellectual disability because he operated heavy machinery as an adult,

ran his own carpeting business, was able to converse with his mother by phone, played

with friends as a child, bought and prepared food, paid bills, wrote letters, filed a grievance

in prison, filed pro se materials with the court, and was not described as intellectually

disabled by several individuals with whom Dr. Marcopulos spoke.59 The PCRA court’s

focus misses the mark entirely. In fact, to rest an adaptive deficits conclusion solely upon

the subject’s adaptive strengths, rather than deficits, or even to weigh the strengths

against the deficits, is to work a patent violation of the current state of the law of Atkins-

claims review.60 By focusing upon what Flor could do, rather than on what Flor could not

do, the PCRA court ran afoul of current medical standards and, therefore, of Atkins and

its progeny.61

The PCRA court’s analysis mirrors that of the lower court in Moore-I, which also

focused for this prong upon Moore’s adaptive strengths, instead of upon his adaptive

deficits.62 Like the PCRA court here, the lower court in Moore-I believed that the

petitioner’s adaptive strengths overcame evidence of his adaptive deficits.63 However,

59 PCRA Ct. Op. at 113-125, 128-132.

60 Moore-I, 137 S.Ct. at 1050; VanDivner, 178 A.3d at 117; Cox 204 A.3d at 388.

61 See, e.g., PCRA Ct. Op. at 59 (rejecting consideration of “only Flor’s possible

weaknesses . . . without any reference to Flor’s achievements in other endeavors”).

62 Moore-I, 137 S.Ct. at 1050 (recognizing that the lower court had recited the

strengths it perceived, including that Moore lived on the streets, mowed lawns, and played

pool for money).

63 Id.

[J-120-2019] [MO: Mundy, J.] - 15

the Supreme Court rejected this form of reasoning, observing to the contrary that “the

medical community focuses the adaptive-functioning inquiry on adaptive deficits.”64

The Majority construes the PCRA court’s consideration of adaptive strengths not

as offsetting scientific conclusions about Flor’s adaptive deficits, but as illustrating that

the experts failed to consider all available information in forming their opinions. 65 The

focus of the adaptive-functioning inquiry is upon adaptive deficits, as Moore-I directs. The

experts’ failure to consider adaptive strengths in assessing these deficits cannot, as the

Majority holds, undermine credibility as to whether there are adaptive deficits in the first

place. Strengths and deficits exist in every person simultaneously, even those who are

intellectually disabled. In accord with current diagnostic criteria, a diagnosis of intellectual

disability is firmly rooted in deficits, not in strengths or a balancing of strengths against

deficits.66

Further, Flor aptly demonstrates that courts cannot rely upon commonly held

stereotypes relating to individuals with intellectual disabilities. The AAIDD has identified

several such stereotypes. These include the belief that intellectually disabled individuals

“look and talk differently from persons in the general population,” “are completely

incompetent and dangerous,” “cannot do complex tasks,” “cannot get driver’s licenses,

buy cars, or drive cars,” “do not (and cannot) support their families,” “cannot romantically

64 Id. (citing AAIDD-11, at 47 (“significant limitations in conceptual, social, or practical

adaptive skills [are] not outweighed by the potential strengths in some adaptive skills”));

DSM-5, at 33, 38 (inquiry should focus upon “[d]eficits in adaptive functioning;” deficits in

only one of the three adaptive-skills domains suffice to show adaptive deficits)); see also

Brumfield, 576 U.S. at 320 (“[I]ntellectually disabled persons may have ‘strengths in social

or physical capabilities, strengths in some adaptive skill areas, or strengths in one aspect

of an adaptive skill in which they otherwise show an overall limitation.’”).

65 Maj. Op. at 48.

66 Cox III, 204 A.3d at 388; VanDivner, 178 A.3d at 117.

[J-120-2019] [MO: Mundy, J.] - 16

love or be romantically loved,” “cannot acquire vocational and social skills necessary for

independent living,” and “are characterized only by limitations and do not have strengths

that occur concomitantly with the limitations.”67 Each of the strengths identified by Dr.

Marcopulos, and credited by the PCRA court, fall within the stereotypes that the

intellectually disabled are “completely incompetent” and “are characterized by limitations

and do not have strengths that occur concomitantly with the limitations.” Similarly, Texas’

Briseno factors, which the Supreme Court has already disapproved, include, inter alia,

consideration of whether others thought of the individual as intellectually disabled during

the developmental period, whether the individual could make plans and carry them out,

whether the individual’s conduct showed leadership, and whether the individual could

respond coherently to oral or written questions.68 Dr. Marcopulos’ testimony, which the

PCRA court accepted, that Flor ran his own business, operated machinery, could speak

coherently over the phone, could express himself in writing, and was not thought of as

intellectually disabled by others, all implicate the Briseno factors, a diagnostic assessment

toolkit that was soundly rejected by the Supreme Court in Moore-I.

Current medical standards provide that analyzing the second prong of intellectual

disability requires individual assessments of the conceptual, social, and practical

domains.69 It only takes one significant deficit in any of the three domains to establish

the second prong.70 The PCRA court here did not separately consider these three

domains, and made no findings as to whether there were deficits in any of them. The

failure to do so contravened the currently applicable diagnostic standards and, therefore,

67 Def. Ex. 28, AAIDD-2012, at 26; see also Moore-I, 137 S.Ct. at 1051-52

(disapproving of the use of stereotypes in Atkins proceedings).

68 Moore-I, 137 S.Ct. at 1046, n.6, 1051-52.

69 Def. Ex. 24, DSM-5, at 33, 34, 37; Def. Ex. 32, AAIDD-2010, at 43.

70 Def. Ex. 24, DSM-5, at 33, 34, 37; Def. Ex. 32, AAIDD-2010, at 43.

[J-120-2019] [MO: Mundy, J.] - 17

violated Atkins and its progeny. Moreover, Dr. Marcopulos agreed with Dr. Mack’s testing

methodologies and his conclusions. Dr. Mack concluded that Flor exhibited deficits in the

conceptual domain. The Commonwealth’s agreement with this conclusion established

Flor’s adaptive deficits.

The PCRA court also relied upon lay-witness opinions that Flor was not

intellectually disabled.71 Moore-I rejected precisely this type of reliance for purposes of

resolving an Atkins claim.72 Here, the PCRA court elevated lay witness testimony over

even the testimony of the Commonwealth expert, Dr. Marcopulos. Similarly, the PCRA

court relied upon evidence that Flor had not been diagnosed with intellectual disability as

a child, nor placed in special education classes.73 The absence of a childhood diagnosis

once again implicates one of the Briseno factors, which were rejected in Moore-I.74 And

it is unsupported by the record. Although Flor was not placed in special education

classes, he required support in all academic subjects, was placed in remedial classes,

failed these remedial classes, and eventually dropped out of school altogether.75 Whether

the school provided special education opportunities to Flor is not the exclusive means of

71 PCRA Ct. Op. at 118-123.

72 Moore-I, 137 S.Ct. at 1052; Cox, 204 A.3d at 388 (likewise holding that relying

upon “[t]he ability of lay persons to recognize intellectual disability” was clearly

erroneous).

73 PCRA Ct. Op. at 131.

74 137 S.Ct. at 1051-52; see also Cox, 204 A.3d at 388.

75 N.T., 10/18/2013, at 59-60; N.T., 1/22/2015, at 54-55; N.T., 7/9/2015, at 57-58;

N.T., 9/15/2017, at 222-23; N.T., 2/17/2017, at 27-28, 90-92; N.T., 2/8/2018, at 59-63;

N.T., 5/9/2018, at 172-73; Def. Ex. 2, at 335.

[J-120-2019] [MO: Mundy, J.] - 18

determining whether Flor was in need of support in one or more areas in order to meet

age-related expectations.76

Turning to the age of onset prong, the PCRA court’s analysis is not consistent with

the requirements of current medical standards and is not supported by the record. The

PCRA court’s conclusion is tied to Dr. Marcopulos’ testimony that, although Flor’s present

IQ satisfies the first prong, his IQ was higher before the age of eighteen. Dr. Marcopulos

explained this decrease by attributing it to head trauma and alcohol use that occurred

after Flor turned eighteen.77 Dr. Marcopulos’s conclusion was premised upon Flor’s

scores on subtests of vocabulary, which were higher than other subtests. Dr. Marcopulos

also relied upon group-administered test results that placed Flor above the second

percentile.78

Flor argues persuasively that Dr. Marcopulos’ methodology does not accord with

current diagnostic standards. For example, today’s medical standards dictate that the

full-scale IQ score, rather than any individual subtest, is the operative score for purposes

of intellectual disability. Dr. Marcopulos recognized as much.79 Further, as Dr.

Marcopulos conceded, Flor’s placement above the bottom second percentile on group-

administered testing cannot be used to rule out deficits in intellectual functioning. 80 And

76 Def. Ex. 24, DSM-5, at 34.

77 N.T., 12/2/2016, at 53-55.

78 Id. at 55, 59-93.

79 N.T., 2/17/2017, at 21.

80 Def. Ex. 24, DSM-5, at 37 (providing that a group-administered test is generally

inaccurate and is inappropriate to determine the presence or absence of intellectual

deficits); N.T., 2/16/17, at 177-78, 199-200, 202-03; N.T., 5/10/2018, at 38-39;

Commonwealth Ex. 48, at 18-19.

[J-120-2019] [MO: Mundy, J.] - 19

because the head trauma upon which Dr. Marcopulos relied began in Flor’s teen years,

the injuries were present in the developmental period before the age of eighteen.81

The PCRA court also failed to account for various risk factors for intellectual

disability. For instance, Dr. Marcopulos acknowledged that Flor’s academic performance

“was absolutely dismal” after the sixth grade;82 that Flor grew up in a chaotic environment

marked by physical, emotional, and possibly sexual abuse;83 and that this environment,

Flor’s substance abuse, and the risk factors associated with the death of Flor’s step-

father, who had been the only functioning adult in Flor’s life, all led to Flor’s decline.84 The

PCRA court believed that Flor was brain-damaged, but that all of these risk factors were

the cause.85

Contrary to the PCRA court’s belief, a diagnosis of intellectual disability does not

depend upon whether other underlying causes of the disability are ruled out. Quite the

opposite. Intellectual disability is a diagnosis premised upon the three prongs

demonstrating impaired functioning, regardless of etiology. The existence of

environmental factors or traumatic experiences does not negate the possibility of

intellectual disability. Indeed, the AAIDD has established several risk factors for

intellectual disability, including FAS and environmental factors such as child abuse,

domestic violence, dysfunctional parenting, and lack of educational support. All of these

81 N.T., 11/13/2006, at 7, 48; N.T., 2/8/2018, at 38-40; Def. Ex. 6, at 30; Def. Ex. 62,

at 10-11.

82 N.T., 2/17/2017, at 27-28.

83 N.T., 2/16/2017, at 141; N.T., 2/17/2017, at 26-27.

84 N.T., 2/17/2017, at 27-29.

85 PCRA Ct. Op. at 80.

[J-120-2019] [MO: Mundy, J.] - 20

can explain the origin of intellectual disability. 86 The Supreme Court likewise has

instructed courts that risk factors do not obviate intellectual disability, but are probative of

the diagnosis.87

The Commonwealth conceded that Flor has brain damage, and the PCRA court

credited the Commonwealth’s explanation for this uncontroverted fact. Dr. Marcopulos’s

attribution of Flor’s academic decline in the sixth grade to the death of Flor’s step-father

was credited by the PCRA court as an alternative explanation for deficits in the conceptual

domain of adaptive functioning that was somehow separate from intellectual disability.

But an impaired ability to cope with stress, such as that resulting from the death of a

parental figure, is an adaptive deficit. Similarly, Flor’s substance abuse and head trauma

began soon after his step-father’s death. If Flor’s deficits could be attributed to stress,

substance abuse, and head trauma, then they were present in the developmental period

before the age of eighteen. Therefore, attributing Flor’s brain damage to environmental

factors would not detract from the intellectual disability assessment. Flor would still be

intellectually disabled. By attempting to rule out intellectual disability through reliance

upon other risk factors to counter the case for intellectual disability, the PCRA court and

the Majority violate clinical standards.88

86 Def. Ex. 60, AAIDD-2010, at 68.

87 Moore-I, 137 S.Ct. at 1051 (“Those traumatic experiences, however, count in the

medical community as ‘risk factors’ for intellectual disability.” (emphasis in original) (citing

AAIDD-2010, at 59-60)). As the High Court explained: “Clinicians rely on such factors as

cause to explore the prospect of intellectual disability further, not to counter the case for

a disability determination.” Id (citing AAIDD-2010, at 60 (“[A]t least one or more of the

risk factors [described in the manual] will be found in every case of” intellectual

disability.)).

88 Id.

[J-120-2019] [MO: Mundy, J.] - 21

Moreover, the PCRA court’s rejection of Flor’s evidence regarding FAS is wholly

unsupported by the record. The PCRA court rejected the testimony of Dr. Davies, who

reached the diagnosis of FAS after evaluating Flor in July 2012. As Dr. Davies testified,

a diagnosis of FAS is premised upon a three-prong analysis examining facial features

that are unique to prenatal alcohol exposure, growth impairments, and

neuropsychological impairments.89 The PCRA court found that Dr. Davies’ testimony was

not credible at least in part because there had been no FAS diagnosis at sentencing nor

any suspicion by trial counsel or defense experts that Flor may have suffered from FAS.90

The PCRA court also rejected this diagnosis at least in part because it found no evidence

that Flor’s mother had consumed alcohol during her pregnancy. 91

Flor’s FAS diagnosis was entirely unrebutted at the PCRA hearing. In the absence

of any evidence to the contrary, the PCRA court’s rejection of this evidence is dubious

and unsupportable, as is the Majority’s affirmance.92 In addition, the PCRA court

considered the lack of direct proof of maternal alcohol consumption as a super-factor,

elevating its importance over the three-prong diagnostic analysis.93 The PCRA court

relied upon the absence of direct evidence of Flor’s mother’s alcohol consumption during

pregnancy to discredit Dr. Davies. But, as Dr. Davies testified, and as the Commonwealth

did not refute, prenatal alcohol exposure does not need to be confirmed to support a

89 Def. Ex. 1, at 188; N.T., 6/26/2014, at 27-28, 49, 63.

90 PCRA Ct. Op. at 79, 89, 109-12.

91 Id. at 78-81.

92 See Maj. Op. at 47-48.

93 Id. at 81 (referring to maternal alcohol consumption during pregnancy as a fourth

prong of an FAS diagnosis).

[J-120-2019] [MO: Mundy, J.] - 22

diagnosis of FAS when the three prongs are established.94 The PCRA court also ignored

the unrebutted evidence of record that Flor’s mother in fact consumed alcohol during

pregnancy.95 The PCRA court also rejected the testimony of Dr. Patton, who concluded

that Flor demonstrated intellectual and adaptive deficits in childhood. The PCRA court

was not persuaded by Dr. Patton because Dr. Patton’s conclusion rested upon

information provided by Flor’s step-sister, Stacey Gilbert, who the PCRA court did not

believe to be a reliable source of information.96

The PCRA court rejected the testimony of Dr. Novick-Brown, a psychologist who

conducted a “lifelong functional assessment” of Flor and testified concerning Flor’s

adaptive deficits, which she believed may stem from an FAS diagnosis. 97 According to

the PCRA court, Dr. Novick-Brown’s testimony was not credible because it was based

upon hearsay, unverified assertions, and generalizations, and because the purported

adaptive deficits were inconsistent with Flor’s ability to write letters, submit court filings,

and obtain employment.98

The PCRA Court found that this testimony was undermined by the lack of a

diagnosis of FAS or intellectual disability in 2006.99 Although this is accurate, it is also of

no moment. The current evidence of record is unrebutted. It persuasively established

the present diagnosis of FAS as the etiological basis of Flor’s intellectual disability.

94 N.T., 6/26/2014, at 34-35, 63-67.

95 N.T., 6/26/2014, at 99-100.

96 PCRA Ct. Op. at 55.

97 Id. at 81; N.T., 1/22/2015, at 15, 24-25, 31.

98 PCRA Ct. Op. at 82-85.

99 Id. at 78, 87-90.

[J-120-2019] [MO: Mundy, J.] - 23

The Majority holds that the PCRA court did not err in discounting Flor’s FAS

diagnosis because Flor’s 2006 experts “were aware of the symptoms and risk factors [of

FAS] but never found them implicated.”100 But Drs. Mack, Tepper, and Voskanian were

not qualified to assess FAS, and, in 2006, were under the incorrect belief that Flor had

obtained his GED, a fact that would be inconsistent with FAS. Dr. Dougherty informed

trial counsel that Flor possessed facial features consistent with FAS, but engaged in no

further analysis of this possibility because he was not qualified to do so. More broadly,

the assertion that simply being a medical doctor and observing Flor was sufficient grounds

to suspect or rule out FAS is dubious and unsupported. FAS is diagnosed after an

assessment by medical doctors who are trained FASD diagnosticians. None of the

sentencing-phase experts here had received this training. The failure of defense experts

to recognize and diagnose FAS in 2006 does not bear upon the later, unrebutted

diagnosis.

To the extent that the PCRA court, and now the Majority, discount Dr. Davies’ FAS

diagnosis because there were other explanations for Flor’s behavioral and learning

issues,101 such other explanations do not account for the constellation of co-occurring

features that comprise the FAS diagnosis: specific facial features, growth impairments,

and neuropsychological impairments. Because these three factors do not align without

FAS, it is not necessary to rule out other factors contributing to Flor’s deficits.

As the Majority observes, the PCRA court also held that Dr. Davies was not

credible because he did not follow the usual process to diagnose Flor with FAS.102 As

100 Maj. Op. at 47.

101 Id. at 34.

102 Id.

[J-120-2019] [MO: Mundy, J.] - 24

Dr. Davies testified, in clinical practice, a diagnostician determines if FAS is present, and

team members assess the functional effect of the diagnosis.103 Here, Dr. Davies was the

diagnostician making the determination of whether FAS was present based upon the

factors identified above. The absence of a team of experts to assess Flor’s functionality

does not undermine Dr. Davies’ FAS diagnosis.

The Majority views the PCRA court’s consideration of Flor’s FAS diagnosis as

bearing only upon the credibility of the experts who changed their opinion between 2006

and the PCRA proceedings, particularly given what the Majority perceives as uncertainty

surrounding Flor’s IQ score.104 Even if the FAS diagnosis is relevant only to the extent it

pertains to the age of onset prong, the FAS diagnosis was unrebutted by the

Commonwealth.

Similarly, in rejecting evidence of intellectual disability, the PCRA court particularly

was persuaded by the absence of an intellectual disability diagnosis by Drs. Voskanian,

Tepper, and Mack at the penalty phase. According to the PCRA court, these experts had

no valid basis to change their mind or “recant” their prior testimony.105 The PCRA court

believed that their “recantation” rendered their PCRA testimony non-credible.106 Upon

this basis, the PCRA court rejected this PCRA testimony.

Flor argues persuasively that these three experts diagnosed him with intellectual

disability in connection with post-conviction proceedings because of new evidence and

the current diagnostic criteria, which has evolved since 2006, and that their post-

conviction testimony is therefore more accurate than their 2006 testimony. Pursuant to

103 See N.T., 1/22/2015, at 34.

104 Maj. Op. at 47-48.

105 PCRA Ct. Op. at 128-132.

106 Id.

[J-120-2019] [MO: Mundy, J.] - 25

Moore-I, Flor is correct. Atkins claims must be decided using the most current diagnostic

standards.107 The 2006 findings were not based upon current diagnostic criteria, but upon

the criteria that existed in 2006. Since then, the prevailing diagnostic criteria have been

revised to reflect significant advancements within the medical community.

Flor argues convincingly that, since 2006, the diagnostic criteria have evolved to

include consideration of the Flynn Effect; to reject rigid IQ cutoffs; to embrace the clinical

assessment of intellectual functioning; to include the AAIDD’s description of commonly

held but erroneous stereotypes; to include the DSM-5’s emphasis upon the failure to

reach age-related expectations as the benchmark of adaptive behavior; to include the

DSM-5’s clinical description for deficits in each domain of adaptive functioning; to focus

upon clinical judgment in assessing adaptive functioning; to reflect the DSM-5’s rejection

of the use of group-administered testing in assessing intellectual functioning; and to

emphasize the comprehensive nature of adaptive behavior assessments.108

In addition to changes in diagnostic criteria, Flor’s post-conviction expert witnesses

also had the benefit of additional evidence regarding Flor’s adaptive deficits, his FAS

diagnosis, and his lack of a GED (contrary to what these experts believed at the time of

sentencing), all of which they lacked at the time of sentencing. Far from indicating that

certain witnesses recanted their prior testimony in an effort to save Flor from a death

sentence, the record evidence demonstrates a good faith reassessment under advanced

diagnostic criteria and additional evidence.

Moreover, Flor presented two experts to the PCRA court (Dr. Martell and Dr.

Dougherty) who testified for the first time in this case that Flor is intellectually disabled,

107 Moore-I, 137 S.Ct. at 1049, 1052-53.

108 Def. Ex. 24, DSM-5, at 34, 37-38; Maj. Op. at 19 (citing Appellant’s Br. at 82).

[J-120-2019] [MO: Mundy, J.] - 26

and who offered voluminous evidence in support of their diagnosis of intellectual

disability.109 The PCRA court’s credibility findings as to Drs. Mack, Tepper, and

Voskanian, which were based upon the changing of their minds, have no bearing upon

the credibility of these expert witnesses. The same bases for discredit cannot be lodged

against Drs. Martell and Dougherty.

The PCRA court separately rejected Dr. Martell’s testimony for a number of

reasons that are not supported by the record.110 In particular, the PCRA court was critical

of Dr. Martell’s application of the Flynn Effect in high stakes settings. As discussed herein,

the AAIDD and the APA require IQ scores to account for the Flynn Effect. The PCRA

court was also concerned that Dr. Martell had not reduced Flor’s IQ score to account for

depression.111 Although depression may impact IQ scores, there was no evidence that

Flor’s score was impacted by depression. More broadly, as noted, the Commonwealth

conceded the validity of Dr. Mack’s 2006 testing, and there was no dispute that Flor’s IQ

established the first prong of intellectual disability.

Contrary to the conclusions of the PCRA court, the record contains ample

evidentiary support for Flor’s diagnosis of intellectual disability. Given the magnitude of

the constitutional right at stake, I am persuaded that the PCRA court’s findings are not

supported by the record, are premised upon legal error, and create the unacceptable, and

unconstitutional, risk that a person with intellectual disability will be executed.

The Majority repeats many of the errors of the PCRA court by relying upon findings

that are not supported by the record and by ignoring evidence premised upon current

109 N.T., 9/14/2017, at 93-187; N.T., 9/15/2017 at 3-9; N.T., 2/8/2018, at 21-138, N.T.,

5/10/2018, at 4-91.

110 See Maj. Op. at 37-38.

111 Id. at 38.

[J-120-2019] [MO: Mundy, J.] - 27

diagnostic criteria. Like the PCRA court, the Majority also makes a number of legal errors

with which I cannot agree. For instance, the Majority dismisses the PCRA testimony of

Drs. Mack, Tepper, and Voskanian because those experts did not attribute their post-

conviction diagnosis to changes in diagnostic criteria.112 Whether or not these experts

attributed their change of mind to evolving medical standards, the fact remains that they

reached a different conclusion in post-conviction proceedings under current criteria and

new evidence, including the diagnosis of FAS, information pertaining to Flor’s adaptive

functioning, and learning that Flor had lied about obtaining his GED. Additional experts

and evidence corroborated their post-conviction testimony and diagnoses.

The Majority also suggests that expert witnesses who testify at the penalty phase

cannot credibly change their minds.113 I disagree. Although an expert’s change of mind

may not be credible in a particular case (perhaps because the reason is not persuasive

or it is not premised upon new evidence or evolving scientific standards), I would not

categorically impugn the credibility of an expert who has the courage to reexamine his or

her prior testimony and correct any inaccuracies or outdated opinions. The Majority’s

suggestion would discourage the very self-reflection and reconsideration of prior

conclusions that scientific progress demands. Recall as well that the experts here did not

change their minds on a whim. Their good-faith reconsiderations were based upon an

altered medical landscape and upon consideration of evidence that they did not possess

at the time of their earlier involvement in the case.

The Majority also downplays the significance of the advances in diagnostic criteria,

asserting that these advances would not have led to different diagnoses at the time of the

112 Id. at 20.

113 Id. at 14 (observing that a “shift in opinion may call into question the experts’

professional performance”).

[J-120-2019] [MO: Mundy, J.] - 28

PCRA hearing.114 Once more, I cannot agree. Following Flor’s penalty phase, the AAIDD

and the APA collectively issued five additional clinical manuals that announced and

incorporated the significant advances that I have described above. In accord with Moore-

I, an Atkins determination must be premised upon current diagnostic guidelines from the

medical community. The 2006 findings were not based upon current diagnostic criteria.

The overwhelming evidence of record demonstrates that Flor is, in fact,

intellectually disabled. Flor is not eligible for the sentence that he currently is serving. He

has established deficits in intellectual functioning, adaptive deficits, and onset before the

age of eighteen. These deficits are corroborated by several known risk factors for

intellectual disability. The PCRA court’s rejection of this claim is not supported by the

record but was, instead, the product of the PCRA court’s disregard for current diagnostic

criteria and adherence to practices that have been rejected by the Supreme Court of the

United States. Although the PCRA court has the discretion to assess the credibility of

experts, it has no discretion to reject current diagnostic standards.115 I conclude, based

upon the record before this Court, that the PCRA court erred and that Flor is entitled to

relief on his Atkins claim. The Majority’s affirmance of the PCRA court has created an

unacceptable risk that persons with intellectual disability will be executed.

II. Atkins - Reviewability

A. Waiver - PCRA Petition

In affirming the PCRA court, the Majority reaches a number of erroneous legal

conclusions. The Majority holds that Flor’s substantive claim for relief under Atkins is

114 Id. at 20-21.

115 Moore-I, 137 S.Ct. at 1053 (“The medical community’s current standards supply

one constraint on the States’ leeway” to fashion criteria for establishing whether a capital

defendant is intellectually disabled.).

[J-120-2019] [MO: Mundy, J.] - 29

waived because it was not included in Flor’s PCRA petition as a stand-alone issue.116

Although Flor did not separately number his substantive Atkins claim, he included it within

the first issue presented in his PCRA petition. This issue asked, in relevant part, whether

“Petitioner is ineligible for the death penalty under Atkins v. Virginia and its progeny.”117

Flor plainly asserted that he is presently ineligible for the death penalty. By ignoring this

language, or seeming to require this issue to be separated from the Atkins-based counsel

ineffectiveness claim, the Majority requires too much and reads the issue too narrowly.

There is no statutory or rule-based requirement demanding what the Majority now

requires. Here, the issue was preserved, there is a developed record, and there are

findings of fact by the PCRA court. The case is without question ripe for review.

Additionally, an Atkins claim is a challenge to the legality of the sentence.118 It is not

subject to waiver.119 Accordingly, there is no issue preservation impediment to our

review.

B. Cognizability under 42 Pa.C.S. § 9543(a)(2)(i)

The Majority also is critical of Flor’s reliance upon 42 Pa.C.S. § 9543(a)(2)(i) and

(vii) to assert that the substantive Atkins claim is cognizable.120, 121 A claim is cognizable

116 Maj. Op. at 19.

117 Id. at 19 (citing PCRA Ct. Op. at 44).

118 Atkins, 536 U.S. at 321 (explaining that “the [United States] Constitution ‘places a

substantive restriction on the State’s power to take the life’ of a mentally retarded

offender” (citation omitted)); Commonwealth v. Robinson, 82 A.3d 998, 1020 (Pa. 2013)

(“Atkins claims implicate the legality of sentencing.”).

119 Commonwealth v. McIntyre, 232 A.3d 609, 616 (Pa. 2020) (recognizing that a

claim implicating the legality of a sentence is not subject to waiver).

120 See Maj. Op. at 21-23.

121 Section 9543(a) provides, in relevant part, as follows:

[J-120-2019] [MO: Mundy, J.] - 30

under Section 9543(a)(2)(i) where it alleges that the conviction or sentence resulted from

a constitutional violation that undermines the truth-determining process. Atkins held that

subjecting the intellectually disabled to the death penalty is unconstitutional.122 I have

little difficulty agreeing with Flor that, under Section 9543(a)(2)(i), a death sentence

imposed upon an individual who legally is ineligible for that sentence is a sentence that

results from a constitutional violation.

I am also unpersuaded by the Majority’s waiver analysis of the Atkins claim under

Section 9543(a)(2)(i).123 According to the Majority, Flor was required to raise his Atkins

(a) General rule.--To be eligible for relief under this subchapter, the

petitioner must plead and prove by a preponderance of the evidence all of

the following:

***

(2) That the conviction or sentence resulted from one or more of the

following:

(i) A violation of the Constitution of this Commonwealth or the

Constitution or laws of the United States which, in the

circumstances of the particular case, so undermined the truth-

determining process that no reliable adjudication of guilt or

innocence could have taken place.

***

(vi) The unavailability at the time of trial of exculpatory evidence

that has subsequently become available and would have

changed the outcome of the trial if it had been introduced.

(vii) The imposition of a sentence greater than the lawful

maximum.

42 Pa.C.S. § 9543(a).

122 Atkins, 536 U.S. at 321.

123 Maj. Op. at 22-23.

[J-120-2019] [MO: Mundy, J.] - 31

claim at sentencing, lest he waive it forever. But why? Flor’s claim is that he presently is

ineligible for the sentence that he is currently serving as a matter of constitutional law.

Atkins supports this claim, rendering the intellectually disabled ineligible for the death

penalty. Under Atkins and its progeny, as explained above, a determination of intellectual

disability is premised upon standards that develop within the medical community. As

these standards continue to evolve, it is the most current standards that determine a

present diagnosis of intellectual disability. The question is not whether Flor could have

been diagnosed with intellectual disability at sentencing, but whether he is, in fact,

intellectually disabled according to current medical diagnostic standards. Flor’s failure to

raise this claim at the penalty phase is irrelevant. This is especially true because Flor’s

Atkins claim implicates the legality of the sentence and is not subject to waiver.

The Majority attempts to bolster its waiver analysis with a citation to

Commonwealth v. Mason, 130 A.3d 601, 666 (Pa. 2015), for the proposition that declining

to bring an Atkins claim at sentencing waives this claim forever, even in a timely-filed

post-conviction petition.124 The issue in Mason concerned a disagreement between the

defendant and his counsel as to whether to pursue an Atkins claim, where counsel sought

to bring the claim and the defendant did not. The question this Court addressed on appeal

was whether the PCRA court erred when it permitted the defendant to override counsel’s

decision to request an Atkins hearing.125 Answering this question, we observed that the

defendant bears the burden of proving intellectual disability. It followed that the

defendant, not counsel, could choose whether to bring the Atkins claim or forego it.126

Our allocation of the decision-making authority over whether to raise an Atkins claim

124 Maj. Op. at 22.

125 Mason, 130 A.3d at 666.

126 Id.

[J-120-2019] [MO: Mundy, J.] - 32

where a defendant has sought counsel’s assistance in vacating a death sentence does

not, as the Majority now asserts, mean that a defendant who did not raise an Atkins claim

at sentencing is barred from doing so in post-conviction proceedings.

Additionally, Flor’s PCRA-Atkins claim is distinct from any claim that he could have

raised in 2006. The claim is premised upon current medical standards rather than the

standards that existed in 2006. Therefore, the grant of substantive relief under Atkins in

a timely post-conviction petition does not depend upon whether the petitioner investigated

or presented an Atkins claim at sentencing. Rather, as a diagnosis is premised upon

current diagnostic criteria, shutting the door to stand-alone Atkins claims in timely post-

conviction petitions could result in the execution of the intellectually disabled in direct

violation of Atkins and its progeny. Subjecting Flor to the death penalty, a sentence for

which he is not eligible, would be a constitutional violation. The illegality of this sentence

undermines the truth-determining process under Section 9543(a)(2)(i).

C. Cognizability under 42 Pa.C.S. § 9543(a)(2)(vii)

The Majority also holds that Section 9543(a)(2)(vii), which is implicated where the

sentence is greater than the lawful maximum, is inapplicable.127 Again, I must disagree.

Atkins held that “persons with intellectual disability may not be executed.”128 Moore-I held

that Atkins claims must be decided in accordance with the medical community’s current

standards.129 Using current standards, the evidence of record demonstrates that Flor is

not subject to the death penalty. Barring Flor from presenting his Atkins claims at this

127 Id. at 23.

128 Hall, 572 U.S. at 08 (citing Atkins, 536 U.S. at 321).

129 Moore-I, 137 S.Ct. at 1049, 1053 (citing manuals from the AAIDD and the APA

and holding that “[r]eflecting improved understanding over time, . . . current manuals offer

the best available description of how mental disorders are expressed and can be

recognized by trained clinicians”).

[J-120-2019] [MO: Mundy, J.] - 33

juncture, when Flor is before the court on appeal from a timely-filed PCRA petition alleging

a current ineligibility for the death penalty, would deprive Flor of the only opportunity that

he has to present his claim using the current diagnostic standards, and would therefore

run afoul of Moore-I. Because Flor is not eligible for the death penalty, he is serving a

sentence greater than the lawful maximum. The claim, therefore, is cognizable under

Section 9543(a)(2)(vii).

D. Cognizability under 42 Pa.C.S. § 9543(a)(2)(vi)

Although Flor does not invoke Section 9543(a)(2)(vi) as a basis of cognizability,

the Majority invokes it only to reject it.130 This subsection applies where the conviction

results from the unavailability at the time of trial of exculpatory evidence that has since

become available. Because Flor does not rely upon this section, there is no need for the

Majority to address it. But because the Majority is closing the door on this avenue of

redress in a case where it is not at issue, I am compelled to respond.

We have never interpreted Section 9543(a)(2)(vi) as narrowly as the Majority does

today, opining in dicta that advances within the medical community are not evidence, but

rather the norms by which evidence is evaluated.131 If the issue were before the Court,

perhaps there would be a persuasive argument that “exculpatory evidence” includes

evidence of sentencing illegality, which essentially is what a post-conviction diagnosis of

intellectual disability is. After all, if Flor is, in fact, intellectually disabled, then he was, ipso

facto, intellectually disabled at the time of trial. The only difference is that now the experts

have at their disposal evolved diagnostic criteria to make this diagnosis.

At issue here is an Atkins claim that is not presented in the context of an allegation

of ineffective assistance of counsel before a court of competent jurisdiction. The Majority

130 Maj. Op. at 23.

131 Id.

[J-120-2019] [MO: Mundy, J.] - 34

effectively is holding that such a claim can never be raised in a PCRA petition, unless it

is conjoined with an ineffectiveness claim. There is no justification for this sweeping,

revolutionary analysis. Although any particular petitioner may lose on the merits, a stand-

alone Atkins claim clearly is cognizable under the PCRA.

III. Prosecutorial Misconduct

Given my resolution of the merits of the stand-alone Atkins claim, I would not

resolve the Atkins-based ineffectiveness claim or proceed to address the remaining

sentencing phase issues. However, because I differ with the Majority’s resolution of

another of Flor’s claims, I will note my disagreement.

Flor argues that trial counsel was ineffective for failing to object to certain instances

of prosecutorial misconduct. One such comment implicates Caldwell v. Mississippi, 472

U.S. 320, 323 (1985), in which the United States Supreme Court held that “it is

constitutionally impermissible to rest a death sentence on a determination made by a

sentencer who has been led to believe that the responsibility for determining the

appropriateness of the defendant's death rests elsewhere.” Applying Caldwell in

Commonwealth v. Montalvo, 205 A.3d 274 (Pa. 2019), this Court held that it was

reversible error for the prosecutor to characterize the jury’s role as merely advisory. We

addressed the arguable merit prong of the ineffectiveness standard and held that

prosecutorial statements amounting to alleged Caldwell violations “must be viewed in light

of the circumstances of the particular case to determine if those comments created a risk

that the jury's deliberations and death penalty sentence were tainted by impermissible

considerations.”132 The prosecutor in Montalvo erroneously referred to the jury’s verdict

132 Montalvo, 205 A.3d at 298–99 (citing Commonwealth v. Smith, 650 A.2d 863, 869

(Pa. 1994)).

[J-120-2019] [MO: Mundy, J.] - 35

as a recommendation a number of times.133 Compounding these erroneous assertions,

the trial court expressly conveyed to the jury, “I am the sentencing person. Your decision

is a recommendation to the court.”134 Although the trial court later instructed the jury

correctly in accord with the law, “nothing in the trial court's final charge made clear to the

jury that one of the contradictory instructions was erroneous.” 135 Merely to contradict a

constitutionally infirm instruction, without explanation, fails to cure the constitutional

error.136

At Flor’s trial, the prosecutor informed the jury falsely that the jurors did not “hold

the power of life and death in [their] hands.”137 The prosecutor later explained that the

“law sets the factors out. . . . The law has [decided the issue of life and death] years

before you entered into this courtroom.”138

Although trial counsel did not object, counsel informed the jury that the prosecutor

was incorrect: “[The prosecutor] is not quite accurate on the law. The decision of life and

death is in your hands. You are the deciders. You decide the weight to give to the

mitigating, and you decide the weight to the aggravating.”139 The trial court later instructed

the jury in accord with the law that their verdict would not be a recommendation, but would

establish Flor’s sentence.140

133 Id. at 295.

134 Id. at 299.

135 Id.

136 Id.

137 Maj. Op. at 53 (citing Appellant’s Br. at 116 (quoting N.T., 11/16/2006, at 78-79)).

138 Id. at 54 (citing Commonwealth’s Br. at 132 (citing N.T., 11/6/06, at 79)).

139 Id. (citing Commonwealth’s Br. at 134 (citing N.T., 11/6/2006, at 105)).

140 Id. (citing Commonwealth’s Br. at 134 (citing N.T., 11/17/2006, at 35)).

[J-120-2019] [MO: Mundy, J.] - 36

The Majority holds that the prosecutor’s comments did not indicate that the jury’s

role was advisory or that it was not responsible for determining the sentence.141 This

cannot be true. By telling the jurors that they did not hold the power of life or death, the

prosecutor wrongly left the jury with the impression that it was not responsible for fixing

the sentence. The prosecutor’s later statement that the law, not the jury, established

Flor’s sentence could only serve to confuse the jury further. Prosecutors have an

obligation not to confuse jurors by misleading them about their role in the sentencing

process, in accord with Caldwell and its progeny. The prosecutor ran afoul of this

obligation.

We do not view the prosecutor’s error in isolation, but consider the impact of the

prosecutor’s erroneous comments in light of the particular circumstances of the case,

including the trial court’s jury instructions.142 Although the prosecutor made an inaccurate

statement that diminished the jury’s role in sentencing, the trial court later provided an

accurate instruction informing the jury that the jury was responsible for reaching a

sentencing verdict. Because the trial court’s instructions provided an accurate recitation

of the law, and because we presume that jurors follow the trial court’s instructions,143 I

ultimately agree with the Majority that Flor is not entitled to sentencing relief on this claim.

This case is distinguishable from Montalvo because here, the trial court

consistently and accurately explained the law. In Montalvo, the prosecutor confused and

misled the jury, and the trial court compounded this misconduct by giving conflicting

instructions about the jury’s role. Although the Montalvo court’s instructions later clarified

141 Id.

142 Montalvo, 205 A.3d at 298-99.

143 Commonwealth v. Aikens, 168 A.3d 137, 143 (Pa. 2017); Commonwealth v.

Bullock, 913 A.2d 207, 218 (Pa. 2006).

[J-120-2019] [MO: Mundy, J.] - 37

the role of the jury, the correct instruction was insufficient to cure the confusion that was

likely to have resulted from the prior, erroneous instruction because the trial court did not

acknowledge its prior error.144 Without acknowledging the prior error, that latter, correct

instruction was unlikely to ameliorate the confusion. Here, there is no allegation that the

trial court, at any time, misled or confused the jury with respect to its role. Unlike the

circumstances in Montalvo, the trial court here cured the prosecutor’s error.

***

In summary, I would reverse the PCRA court’s resolution of Flor’s substantive

Atkins claim. I believe that the PCRA court’s factual findings were not supported by the

record and that its legal conclusions were tainted by legal error. The Majority’s affirmance

compounds these errors. I respectfully dissent.

Justice Todd and Justice Donohue join this dissenting opinion.

Justice Saylor joins Parts II and III of this dissenting opinion.

144 Montalvo, 205 A.3d at 299.

[J-120-2019] [MO: Mundy, J.] - 38