Commonwealth, Aplt v. Bardo, M.

[J-145A&B-2012]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, STEVENS, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 650 CAP

:

Appellee : Appeal from the Order dated 12/30/2011

: (docketed on 1/3/2012) in the Court of

: Common Pleas, Criminal Division of

v. : Luzerne County at No. CP-40-MD-

: 0002778-1992

:

MICHAEL BARDO, :

:

Appellant : SUBMITTED: November 5, 2012

COMMONWEALTH OF PENNSYLVANIA, : No. 651 CAP

:

Appellant : Appeal from the Order dated 12/30/2011

: (docketed on 1/3/2012) in the Court of

: Common Pleas, Criminal Division of

v. : Luzerne County at No. CP-40-MD-

: 0002778-1992

:

MICHAEL BARDO, :

:

Appellee : SUBMITTED: November 5, 2012

OPINION AND OPINION IN SUPPORT OF REVERSAL ON DOCKET No. 651 CAP

PER CURIAM DECIDED: December 16, 2014

The Court is unanimous in the view that the appeal at Docket No. 650 CAP

should be affirmed, but is evenly divided on the appeal at Docket No. 651 CAP;

therefore, the grant of penalty phase relief, at issue in No. 651 CAP, is affirmed by

operation of law. This per curiam Opinion, in Part II, represents the Opinion of

the Court as to the appeal at docket No. 650 CAP, which is Michael Bardo’s

appeal from the order of the PCRA1 court denying him guilt phase relief and also

denying several of his penalty phase claims. In Part I, however, this Opinion

expresses only the views of Mr. Chief Justice Castille and Messrs. Justice Eakin

and Stevens as to docket No. 651 CAP, which is the Commonwealth’s appeal

from the grant of penalty phase relief.

Background

In September 1992, Bardo was arrested for the death and indecent assault of his

three-year-old niece. Evidence presented at trial in January 1993 included Bardo’s

statement to police that he had digitally penetrated the child’s vagina, accidently killed

her by putting his hand over her mouth to quiet her, placed her body in a trash bag, and

threw it from a bridge into a creek. The defense strategy at trial was to acknowledge

that Bardo was criminally responsible for the child’s death, but to try to establish that the

killing was not intentional. The Commonwealth’s forensic pathology expert testified that

the child’s death was due to asphyxia resulting from a deliberate, forceful compression

of her neck lasting four to five minutes, with the pressure continuing even after she lost

consciousness. Commonwealth v. Bardo, 709 A.2d 871, 877 (Pa. 1998). The jury

found Bardo guilty of first-degree murder and aggravated indecent assault. Following

the penalty phase of trial, the jury found two aggravating circumstances: killing in the

perpetration of a felony and killing of a person under the age of twelve.2 One or more

jurors also found the following mitigating factors: Bardo’s mother’s testimony, his school

records and background, his acceptance of responsibility/remorse, his willingness to

plead, and his alcohol abuse. See Sentencing Verdict Slip, dated 1/28/93, at 4; Notes

1

Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546.

2

Respectively, 42 Pa.C.S. §§ 9711(d)(6), (d)(16).

[J -145A&B-2012] - 2

of Testimony (“N.T.”) Trial, 1/28/93, at 844-55 (polling the jury).3 Finding unanimously

that the aggravating factors outweighed the mitigating factors, the jury determined that

Bardo should be sentenced to death. The trial court accordingly imposed the death

sentence, and, on February 27, 1998, this Court affirmed the judgment of sentence on

direct appeal. Bardo, 709 A.2d at 879.

Bardo filed a timely PCRA petition, and on December 6, 2007, the PCRA court

appointed new counsel,4 who filed an amended PCRA petition on June 18, 2008.

Following a four-day hearing in November 2009, the PCRA court granted Bardo a new

penalty phase hearing based on the court’s finding of ineffective assistance of counsel

with respect to the presentation of evidence of mitigating factors; the PCRA court

denied all of Bardo’s other claims.

In order to obtain collateral relief pursuant to the PCRA, a petitioner must

establish by a preponderance of the evidence that his or her conviction or sentence

resulted from one or more of the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2).

Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011). These circumstances include a

violation of the Pennsylvania or United States Constitution or ineffectiveness of counsel,

any one of which “so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(i)

and (ii). In addition, a petitioner must show that the claims of error have not been

previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). An issue has been previously

litigated if “the highest appellate court in which the petitioner could have had review as a

3

The opinion of the PCRA court, in setting forth the background of the case, neglected

to note that at least one juror found alcohol abuse as a mitigating factor. See PCRA

Court Opinion, filed 1/3/12, at 17.

4

It is not clear from the record why the appointment of new counsel was delayed for

many years.

[J -145A&B-2012] - 3

matter of right has ruled on the merits of the issue.” 42 Pa.C.S. § 9544(a)(2). An issue

has been waived “if the petitioner could have raised it but failed to do so before trial, at

trial, on appeal or in a prior state post[-]conviction proceeding.” 42 Pa.C.S. § 9544(b).

All of the issues before this Court involve allegations of ineffective assistance of

counsel.5 Counsel is presumed effective, and the petitioner bears the burden of proving

otherwise. Commonwealth v. Roney, 79 A.3d 595, 604 (Pa. 2013). To prevail on an

ineffectiveness claim, the petitioner must plead and prove, by a preponderance of the

evidence, the Sixth Amendment performance and prejudice standard set forth in

Strickland v. Washington, 466 U.S. 668 (1984). This Court has divided the performance

component of Strickland into two sub-parts dealing with arguable merit and reasonable

strategy. Commonwealth v. Baumhammers, 92 A.3d 708, 719 (Pa. 2014). Thus, to

prevail on an ineffectiveness claim, the petitioner must show: that the underlying legal

claim has arguable merit; that counsel had no reasonable basis for his or her action or

omission; and that the petitioner suffered prejudice as a result. Id. (citing

Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987)).

With regard to “reasonable basis,” the PCRA court “does not question whether

there were other more logical courses of action which counsel could have pursued;

rather, [the court] must examine whether counsel’s decisions had any reasonable

basis.” Roney, supra (quoting Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa.

2011)). [The PCRA court] will conclude that counsel’s strategy lacked a reasonable

5

The direct appeal in this case was decided in 1998, well before our decision in

Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), which held that claims of

ineffectiveness of trial counsel should be deferred until collateral review. See, e.g.,

Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011). The record reveals that Bardo

was represented by the Luzerne County Public Defender’s Office at trial and on direct

appeal. Accordingly, his PCRA petition was the first opportunity for him to raise claims

of counsel ineffectiveness.

[J -145A&B-2012] - 4

basis only if the petitioner proves that a foregone alternative “offered a potential for

success substantially greater than the course actually pursued.” Id. (quoting Spotz, 18

A.3d at 260). To establish Strickland prejudice, the petitioner must show that there is a

reasonable probability that the outcome of the proceeding would have been different but

for counsel’s action or inaction. Id. A “reasonable probability” is, for example, a

probability sufficient to undermine confidence in the verdict returned by the jury.

Commonwealth v. Gibson, 951 A.2d 1110, 1120 (Pa. 2008) (“Gibson I”) (citing

Strickland, 466 U.S. at 694). When assessing prejudice in the context of a claim of trial

counsel ineffectiveness for failing to present additional evidence of mitigation in a death

penalty case, the PCRA court must directly compare the mitigation case offered at trial

with the credited mitigation evidence offered on post-conviction review. The goal of this

comparison is to determine whether it is (or is not) reasonably probable that, had the

additional evidence of mitigation been presented at trial, at least one juror would have

concluded that the mitigating circumstances outweighed or were as weighty as the

aggravating circumstances, and thus would have voted for a sentence of life

imprisonment rather than death. Commonwealth v. Beasley, 967 A.2d 376, 391 (Pa.

2009); Gibson I, 951 A.2d at 1123.6

On appellate review, this Court must determine whether the PCRA court’s rulings

are supported by the record and are free of legal error. Spotz, 18 A.3d at 259. The

6

Recently, in Commonwealth v. Tharp, 101 A.3d 736, 773 n.28 (Pa. 2014), this Court

rejected a prior approach that Strickland prejudice could not be established merely by

showing on post-conviction review that trial counsel had failed to present additional

evidence supporting a mitigating factor that was found by the sentencing jury. See id. at

776 (Castille, C.J., concurring, joined by Eakin, J.) (noting that four concurring Justices

favor overruling Commonwealth v. Marshall, 812 A.2d 539 (Pa. 2002), and

Commonwealth v. Rios, 920 A.2d 790 (Pa. 2007), to extent that those cases required

proof of an additional mitigating factor to establish prejudice; see also id. at 777-78

(Saylor, J., concurring, joined by Todd, J., and Eakin, J., concurring).

[J -145A&B-2012] - 5

ineffectiveness inquiry constitutes a mixed question of law and fact. Commonwealth v.

Martin, 5 A.3d 177, 197 (Pa. 2010) (citing Strickland v. Washington, 466 U.S. 668, 698

(1984)); see id. at 205 (Castille, C.J., concurring). If supported by the record, the PCRA

court’s credibility determinations and factual findings are binding on this Court; however,

we apply a de novo standard of review to the PCRA court’s legal conclusions. Spotz,

18 A.3d at 259; Martin, 5 A.3d at 197.

When making the ultimate prejudice assessment in a claim of counsel

ineffectiveness for failing to present additional evidence of mitigation, which is the

subject of the Commonwealth’s appeal addressed in Part I below, this Court must

reweigh the evidence in aggravation against the totality of the evidence of mitigation,

which includes both the evidence presented at the penalty phase hearing and the

credited evidence on PCRA review. Commonwealth v. Gibson, 19 A.3d 512, 526 (Pa.

2011) (“Gibson II”). This Court has acknowledged that such reweighing is not “an exact

science,” but has also concluded that we may evaluate the relative strength of the

aggravating and mitigating circumstances to determine if the new evidence in mitigation

would have been reasonably likely to sway a juror to alter his or her conclusion and vote

for a sentence of life imprisonment rather than death. Id. at 530-31. When the

aggravating circumstances are substantial, it may be particularly difficult to establish

prejudice based on additional mitigation evidence proffered upon PCRA review. Id. at

531 (citing Smith v. Spisak, 558 U.S. 139 (2010)).

I. The Commonwealth’s Appeal (651 CAP)

We address first the Commonwealth’s appeal, where the sole claim is framed as

follows:

Whether the PCRA Court erred by granting [Bardo] a new

sentencing hearing where the court erroneously determined

[J -145A&B-2012] - 6

that the alleged additional mitigating evidence had arguable

merit, that counsel would have known about the evidence at

the time of trial, that counsel did not have a reasonable

strategic basis for not presenting the evidence, and that

defendant was prejudiced by the omission?

Commonwealth’s Brief at 4. The PCRA court’s basis for granting Bardo a new penalty

phase hearing was its finding that trial counsel was ineffective in failing to present

additional evidence of mitigation, particularly expert testimony concerning his mental

health history, diagnoses and treatment, and his childhood environment and upbringing.

PCRA Court Opinion, filed 1/3/12, at 26-46. Following the directives set forth by this

Court in Gibson II, 19 A.3d at 526-27 and Gibson I, 951 A.2d at 1122-23, the PCRA

court compared in detail the mitigation evidence presented at trial with the evidence

offered at the PCRA hearing, as follows.

During the penalty phase of trial, defense counsel presented seven witnesses:

Bardo himself; his mother, Judith Wolfe; a Wilkes-Barre city health inspector; an

assistant principal at Bardo's junior high school, the last school he attended; two of

Bardo’s school teachers; and a neighbor of Bardo’s family. Ms. Wolfe testified that

Bardo was the sixth of her seven children, and she could not remember the year he was

born. Bardo’s father (George Bardo) was an alcoholic who “never came home” and

drank to the point of drunkenness “all the time”; had no contact with his son since the

time Bardo was a toddler; and tried to commit suicide by cutting his wrists with a razor

blade at the family home, an injury that he survived. Ms. Wolfe did not think that Bardo

remembered his father, and his stepfather did not participate in Bardo’s activities or act

as a father figure to him. Bardo went to several schools and the family moved often.

Ms. Wolfe acknowledged that she had her “hands full” with her children, and had a hard

time controlling her son when he got older. Bardo began drinking at about age thirteen,

and at times “fell in the door” to the family home due to his intoxication. Also, as a

[J -145A&B-2012] - 7

young teenager, Bardo was sexually abused on a number of occasions by a man who

bought beer for him. Ms. Wolfe learned about this sexual abuse from Bardo when he

was eighteen years old, although it had occurred years earlier. Ms. Wolfe thought that

Bardo married at age sixteen. He had two children, ages six and five, by the time of

trial. At one time, according to Ms. Wolfe, Bardo and his wife lived in an empty

warehouse. Finally, Ms. Wolfe asked the jury to spare her son’s life. N.T. Penalty

Phase, 1/28/93, at 756-73.

As testified to by an assistant principal and his teachers, Bardo did not have

behavior problems in school, but his academic performance was extremely poor; he

failed fifth grade, he failed seventh grade twice, and he dropped out entirely in the ninth

grade at age seventeen. His appearance in school was very unkempt. A teacher

testified that Bardo “had a very difficult time” in school, and “was in over his head.”

Bardo went to the Children’s Service Center at age fifteen for help functioning in a

school setting. The assistant principal testified that Bardo’s “parents were cooperative,

but things did not change that much.” However, a teacher testified that Bardo’s parents

were uncooperative on the rare occasion when school personnel were successful in

contacting them. As another teacher testified, Bardo was already married in the ninth

grade, at which point he was “relatively neat and clean” and living with his wife’s family.

Id. at 715-49.

A neighbor testified that, in the year before Bardo’s offenses, loud noise

emanated from the Bardo family residence, and family members fought in the streets

and exhibited signs of drunkenness. A city health inspector testified that, around the

time of the offenses, the Bardo residence contained numerous animals and was

infested with fleas; the house required the services of an exterminator, but was

habitable. Id. at 703-06, 754-55.

[J -145A&B-2012] - 8

Bardo testified that he was an alcoholic and that he had started drinking alcohol

at approximately eleven or twelve years of age, resulting in blackouts after binge

drinking, and interference with his schooling. He had moved many times with his

mother as a child, did not like school, and did not have a close family. He did not know

his father, and his stepfather was not involved in his life. He was repeatedly sexually

abused by a man who bought beer for him; he remembered waking up naked in the

man’s house after a night of drinking. He went to the Children’s Service Center, where

he enrolled in the Adolescent Learning Center program; although he claimed to do well

there, he quit one day after a quarrel with his girlfriend (later wife), and he did not return.

He lived in an abandoned, rundown warehouse with his wife for a while. He testified

that he had low self-esteem and felt inferior, often feeling like he was nothing compared

to other people. He further testified to two suicide attempts in 1985. In the first attempt,

he and his wife took overdoses of prescription pain pills, and in the second, he cut his

wrists. He was hospitalized after both incidents. He knew that his father had also cut

his wrists. Finally, Bardo accepted responsibility for the victim's death, was remorseful,

and asked for mercy. Id. at 775-93; see PCRA Court Opinion at 26-28. No mental

health professional testified during Bardo’s trial.

In contrast, at the PCRA hearing, three mental health experts testified for the

defense as to Bardo’s impoverished childhood and miserable home life, and as to his

psychiatric history and diagnoses at the time of the offenses. These defense experts

were: (1) Neil Blumberg, M.D., a forensic psychiatrist who evaluated Bardo in the spring

of 2008 and who opined that, at the time of the 1992 offenses, Bardo was suffering from

six mental disorders, some of which involved alcohol abuse; (2) Matthew Berger, M.D.,

a forensic psychiatrist, who had been retained by trial counsel in 1993 and had twice

evaluated Bardo, the first time at the request of trial counsel prior to trial, and the

[J -145A&B-2012] - 9

second time at the request of PCRA counsel in 2009, after which he diagnosed Bardo

as suffering from several mental disorders, in partial agreement with Dr. Blumberg’s

diagnoses; and (3) Ned Delaney, a licensed psychologist, who had also been retained

by defense counsel at the time of trial to evaluate Bardo for his history of alcohol abuse

and his degree of intoxication at the time of the offenses. In addition, PCRA counsel

retained Gary Lage, Ph.D., a pharmacologist and toxicologist, to estimate Bardo’s blood

alcohol content, and the likely psychological and physiological effects of his intoxication,

at the time of the offenses. Finally, PCRA counsel proffered the testimony of Bardo’s

trial counsel, who confirmed that they had retained Dr. Berger and Mr. Delaney prior to

trial, but did not call either to testify. The sole Commonwealth witness at the PCRA

hearing was John O’Brien, M.D., a forensic psychiatrist who had evaluated Bardo in

2009.

After hearing testimony from the above witnesses; reviewing Bardo’s records,

including school, juvenile, agency, and hospital records; and comparing the evidence of

mitigation presented at the penalty phase and at the PCRA hearing, the PCRA court

concluded: “Trial Counsels’ penalty phase presentation was disjointed, scattered and

particularly ineffectual in its failure to synthesize readily available life history evidence of

mental illness, family dysfunction and physical and sexual abuse into a coherent and

persuasive case in support of mitigation.” PCRA Court Opinion at 37. The PCRA court

singled out the “inexplicabl[e]” failure to call Dr. Berger and Mr. Delaney as penalty

phase expert witnesses, even though they had informed trial counsel of their possible

ability to provide evidence in support of mitigation. Id. In its Pierce/Strickland analysis,

the PCRA court concluded as follows with regard to the arguable merit of Bardo’s

ineffectiveness claim:

At the very least, the evidence presented during the

PCRA hearing established there was mental health evidence

[J -145A&B-2012] - 10

found in records contained in Trial Counsels’ file and/or in

readily available records at the time of trial. . . . This

evidence and associated [multiple mental health] diagnoses

would have supported the substantially impaired statutory

mitigating fact[or] found at 42 Pa.C.S. § 9711(e)(3), and the

extreme disturbance statutory mitigating factor under 42

Pa.C.S. § 9711(e)(2). This evidence and/or diagnoses was

[sic] not presented at the penalty phase even though Dr.

Berger advised Trial Counsel he could assist in the penalty

phase, and Mr. Delaney offered a report outlining several

diagnoses and/or factual underpinning of the same

supporting a mitigating factor.

Id. at 40.

The PCRA court further relied on the PCRA hearing testimony of trial counsel to

conclude that there was no reasonable basis for the failure to investigate fully the

potential mitigating evidence that Mr. Delaney and/or Dr. Berger could have provided

and then to proffer the testimony of these expert witnesses as to Bardo’s mental health.

In addition, the PCRA court specifically noted that lead counsel “inexplicably” delegated

responsibility for the preparation and presentation of the penalty phase to second chair

counsel, despite that attorney’s lack of experience and training in capital litigation. Id. at

41-43.

Finally, the PCRA court concluded that Bardo had suffered prejudice. The PCRA

court found that the evidence presented at the PCRA hearing was not merely “additional

evidence” as to mitigating factors actually found by the jury, but “appear[ed] as an

entirely new presentation,” including, for the first time, expert testimony and volumes of

corroborating records. Id. at 44. Such evidence, in the PCRA court’s view, was

sufficient to warrant presentation to the jury of both the Section (e)(2) and the Section

(e)(3) mitigating circumstances, which require the petitioner to establish, respectively,

that he was under the influence of an extreme mental or emotional disturbance, and that

his capacity to appreciate the criminality of his conduct or to conform his conduct to the

[J -145A&B-2012] - 11

requirements of law was substantially impaired. In addition, the PCRA court concluded

that the evidence “could and should have been presented for consideration under the

catchall (e)(8) mitigator.” Id. at 45. In its conclusion, the PCRA court stated: "We . . .

hold that there is a reasonable probability that had the PCRA evidence been introduced

at the penalty phase of Bardo’s capital murder trial, one or more jurors were reasonably

likely to have found additional mitigating circumstances and that those mitigating

circumstances outweighed the aggravating circumstances." Id. at 44-46. For the

following reasons, we would reverse the PCRA court’s holding in the Commonwealth’s

appeal.

We address first the evidence of Bardo’s alcohol abuse, intoxication at the time

of the offenses, and alcohol dependence which were included in the list of Bardo’s

mental health diagnoses by one or more of his PCRA expert witnesses.7 All of the

PCRA expert witnesses, including the Commonwealth’s expert, Dr. O’Brien, agreed that

Bardo had a history of alcohol abuse. There was uncontested evidence from two

experts, based on estimates of Bardo’s alcohol consumption in the hours before the

offenses, that his blood alcohol content at the time of the offenses was .09% or .10%.

N.T. PCRA Hearing, 11/10/09, at 286, & 11/9/09, at 209 (estimates of Mr. Delaney and

Dr. Lage, respectively). Bardo’s PCRA expert witnesses all opined that he had been

drinking and was intoxicated to some degree at the time of the offenses. N.T. PCRA

Hearing, 11/9/09, at 18-19, 40, 94, 109; 11/10/09, at 286-87; & 11/13/09, at 538-39.

7

The PCRA court did not draw conclusions specifically with regard to the value in

mitigation of these alcohol-related factors. Thus, the weight that the PCRA court

applied to expert testimony addressing Bardo’s alleged alcohol abuse, intoxication, and

dependence is unclear. For the reasons discussed in the text, infra, we would conclude

that, to the extent the PCRA court relied on the mitigation value of these alcohol-related

factors to award a new penalty phase hearing, the court erred.

[J -145A&B-2012] - 12

With regard to alcohol dependence, the expert opinions were more varied. Mr. Delaney

and Dr. O’Brien opined that Bardo was not alcohol dependent. Id., 11/10/09, at 294-96;

& 11/13/09, at 642. Dr. Blumberg and Dr. Berger opined that he was alcohol

dependent, but the latter expressed many qualifications to this diagnosis, including

related to the time period of the dependency and the lack of any documentation that

Bardo had ever experienced withdrawal symptoms. Id., 11/9/09, at 18-19, 41-44, 147;

& 11/13/09, at 534-37, 569-74. This expert testimony was based on Bardo’s self-

reports during his mental health evaluations, a corroborating history of public

intoxication requiring police intervention, and hospital reports from two incidents in

which Bardo had seriously injured himself while intoxicated in 1984 and 1985, when he

was, fifteen and sixteen years of age.8

With regard to Bardo's intoxication on the night of the offenses, his argument

places considerable emphasis on the estimates of two experts that his blood alcohol

level bordered on the then-legal limit under the Motor Vehicle Code. However, in our

view, those estimates should be of little moment in the present inquiry. The standard for

proof of voluntary intoxication is the same in the guilt and penalty phases.

Commonwealth v. Marinelli, 810 A.2d 1257, 1277 (Pa. 2002) (citing Commonwealth v.

Carpenter, 617 A.2d 1263, 1268 (Pa. 1992)). Specifically, to establish the Section

9711(e)(3) mitigating factor, “the evidence would have to show that the [accused] was

overwhelmed or overpowered by alcohol to the point of losing his faculties so as to be

incapable of forming a specific intent to kill.” Commonwealth v. Flor, 998 A.2d 606, 627

n.7 (Pa. 2010) (quoting Marinelli, supra at 1277). There is no evidence in the record to

8

Dr. Blumberg testified that his diagnosis of alcohol intoxication on the night of the

offenses was “based a lot” on Bardo’s self-reported drinking prior to the offenses, as

well as the police report and the affidavit of Dr. Lage. N.T. PCRA Hearing, 11/9/09, at

40.

[J -145A&B-2012] - 13

suggest that Bardo met this standard for intoxication; in fact, the evidence at trial was

overwhelmingly to the contrary. In this respect, we agree with the Commonwealth’s

presentation in its brief to this Court at pages 22 through 41.

In his interviews with police detectives on September 3 and 4, 1992, Bardo

recalled in detail the events just prior to, during, and after the child’s murder. Bardo

remembered going to the Sans Souci Lounge with his assistant manager, Robert

Kisankowski, on September 2, 1992, at approximately midnight, after finishing his shift

at the local Burger King and going home to change his clothing. He remembered

sharing three pitchers of Coors Light beer with Mr. Kisankowski and conversing with two

other patrons. He remembered the name of the band that was playing. He

remembered leaving the bar at approximately 1:50 a.m. in Mr. Kisankowski’s car, and

returning to the home that he shared with his mother and stepfather. He remembered

that his mother and his niece were sleeping together on an L-shaped sofa in the living

room when he returned home, and he remembered what they were wearing. He

remembered eating some soup and bread when he came home. He remembered

rubbing his niece’s legs and buttocks, stopping for a little while when she began to

move around, going to the kitchen, returning to the living room, and then starting to rub

the child again and placing his finger in her vagina. When she started to whine, he

“freaked out” and covered her mouth with his hand. He went again to the kitchen, and

when he returned to the living room, he realized the child was not breathing. He again

“freaked out,” but had the wherewithal to attempt to hide her body, first placing the child

in a trash bag from the kitchen cabinet, and then leaving his home by the back door and

throwing her body in a nearby creek. He remembered returning home after disposing of

her body, washing his work uniform, and then going to bed for the night. See N.T. Guilt

Phase, 1/25/93, at 189-98 (testimony of Detective Michael Dessoye); & 1/26/93, at 252,

[J -145A&B-2012] - 14

259-62, 270-72 (testimony of State Police Corporal Michael White, which included

reading Bardo’s statement to police). In our view, these deliberate, directed, controlled,

self-aware actions, all recalled by Bardo and all supported by the evidence at trial,

significantly undermined any claim of overwhelming, overpowering intoxication to the

point of losing one’s faculties.

Furthermore, we see nothing in the record testimony of Bardo’s own experts to

support the necessary standard of intoxication to establish the Section 9711(e)(3)

mitigator. See N.T. PCRA Hearing, 11/13/09, at 538 (testimony of Dr. Berger: “I would

have been able to say [that] there would be some impact on his functionality based on

his alcohol use.”); & 11/10/09, at 283 (testimony of Mr. Delaney that based on his

estimate that Bardo’s blood alcohol level at the time of the offenses was .09%, Bardo’s

impulse control would have been “greatly diminished” and his “need for immediate

gratification would have been higher”); & 11/9/09, at 212-13 (testimony of Dr. Lage that

a typical individual with a blood alcohol level of .10% would exhibit impaired judgment, a

loss to some extent of inhibitions, diminished coordination); id. at 94 (testimony of Dr.

Blumberg that Bardo “has a lengthy history of drinking excessively and also engaging in

very impulsive, poorly thought-out behaviors when under the influence of alcohol, in

particular, becom[ing] disinhibited sexually when under the influence of alcohol”); id. at

109 (testimony of Dr. Blumberg that, when he interviewed Bardo fifteen years after the

offenses, Bardo told him that he had “felt a buzz, felt under the influence of alcohol”

when he reached home on the night of the offenses). None of these expert opinions

supported a finding that Bardo was overwhelmed or overpowered by alcohol to the point

of losing his faculties, and thus none can be relied on to support a finding of Section

9711(e)(3) mitigation. Accord Gibson II, 19 A.3d at 529.

[J -145A&B-2012] - 15

Bardo appears to argue that his voluntary intoxication should also have been

considered as a Section 9711(e)(2) mitigating factor, i.e., extreme mental or emotional

disturbance. Based on our analysis above, we conclude that no proffered evidence

supported this statutory mitigator, as the Commonwealth explains in its brief at pages

41 and 42. The testimony of Bardo’s experts that there was “some impact on his

functionality” due to alcohol use, that his impulse control was “greatly diminished” and

he became “disinhibited sexually” when intoxicated, and that he self-reported feeling a

“buzz” on the night of the offenses, does not, in our view, constitute sufficient evidence

that he was subject to extreme mental or emotional disturbance. See Commonwealth v.

Saranchak, 866 A.2d 292, 305-06 (Pa. 2005) (defendant’s history of mental health

difficulties and alcoholism, and likelihood of having been intoxicated at time of offenses

are concerns distinct from extreme mental or emotional disturbance, pursuant to

Section 9711(e)(2)).

In sum, we find no evidence presented at the penalty phase or at the PCRA

hearing to support a claim that Bardo’s voluntary intoxication on the night of the

offenses was a mitigating circumstance under either the Section 9711(e)(2) or (e)(3)

statutory mitigators.

A jury may, of course, consider alcohol consumption and abuse as a possible

mitigating factor under the catch-all mitigator, Section 9711(e)(8) (“Any other evidence

of mitigation concerning the character and record of the defendant and the

circumstances of his offense.”). See Gibson II, 19 A.3d at 529 (citing Flor, 998 A.2d at

627 n.7); Commonwealth v. Laird, 988 A.2d 618, 624 n.1 (Pa. 2010). However, it is

important to note that nothing in our decisional law suggests that alcohol abuse or

consumption on the day of the offense is, in and of itself, a mitigating circumstance

under subsection 9711(e)(8) or any other statutory provision. Indeed, as this Court has

[J -145A&B-2012] - 16

previously noted, jurors are aware of a volitional component to the use of alcohol and of

alcohol’s disinhibiting effect, and thus, it is far from clear that alcohol use or abuse has

consistent or substantial mitigating value. The U.S. Supreme Court has suggested the

same. See Gibson II, 19 A.3d at 527 (citing Montana v. Egelhoff, 518 U.S. 37, 44

(1996) (plurality) for proposition that “historically, voluntary intoxication has been viewed

by society as aggravating the severity of a given offense”).

Based on the testimony of Bardo and his mother, some members of the jury did

find that Bardo’s alcohol abuse was a mitigating factor under Section 9711(e)(8). The

additional evidence proffered at the PCRA hearing was expert testimony addressing

Bardo’s alcohol abuse and intoxication at the time of the murder. However, trial

counsel’s testimony at the PCRA hearing is also relevant here. Specifically, trial

counsel testified that Bardo had told him that he was not drunk on the night of the

offenses and that he knew what he was doing. N.T. PCRA Hearing, 11/12/09, at 394.

Trial counsel further testified that he did not consider as mitigating the facts that Bardo

“drank beer, killed [ ] and molested his niece.” Id. at 373 (“[T]he fact that [Bardo] went to

the Sans Souci Lounge and [ ] drank beer, [ ] and came home and killed her, wasn't

something that I was really [ ] too heavy on pursuing."). We cannot say that trial

counsel’s view that Bardo’s voluntary intoxication on the night of the offenses lacked

mitigation value was constitutionally unreasonable.9,10

9

Accord Commonwealth v. Crawley, 663 A.2d 676, 680 n.8 (Pa. 1995) (concluding that

counsel could reasonably conclude that evidence of appellant’s illicit drug use would

have served only to further inflame jurors against appellant).

10

Mr. Delaney made an error in his estimate of Bardo’s blood alcohol level in the 1993

report he provided to trial counsel. Based on an erroneous estimate of the volume of

beer that Bardo drank in the hours before the offenses, Mr. Delaney had estimated that

Bardo’s blood alcohol level was .03%. When the error was realized, apparently at some

point in the PCRA process, Mr. Delaney upwardly revised his estimate of Bardo’s blood

alcohol level to .09%. See N.T. PCRA Hearing, 11/10/09, at 278-88. Mr. Delaney’s

(Pcontinued)

[J -145A&B-2012] - 17

With regard to alcohol dependence and any resulting mitigation value, the PCRA

testimony, including that of Bardo’s three expert witnesses who addressed his alcohol

dependence, was inconsistent. Dr. Blumberg was the strongest proponent of the view

that Bardo was alcohol dependent, basing his diagnosis primarily on Bardo’s various

self-reports of blackouts; tolerance; getting “the shakes”; drinking to get drunk; and “an

awareness that [ ] he gets into trouble when he drinks [but] an inability or awareness to

stop drinking.” N.T. PCRA Hearing, 11/9/09, at 147; see also id. at 149 (Dr. Blumberg

testified that Bardo’s “report and the history that he describes is absolutely supportive of

alcohol dependence, at the very least alcohol abuse”); see also id. at 150 (Dr. Blumberg

testified that Bardo described “a clear cut history [of] a severe alcohol problem with

tolerance,” and clarified that a “diagnosis of alcohol dependence is based on the

history”). However, Dr. Blumberg recognized that Bardo’s self-report of tremors was the

only evidence that he had ever experienced any symptoms of withdrawal, one of the

indicators of alcohol dependence. Id. at 41, 128, 131-33.

Although Dr. Berger also diagnosed Bardo as alcohol dependent, he suggested a

number of qualifications, most importantly related to the timing of the dependence. In

the context of a line of questioning during cross-examination about Bardo’s childhood

and teenage years, when asked whether Bardo was alcohol dependent, Dr. Berger

responded: “It’s hard to say. I mean, I think there probably was [alcohol] dependence

during those years. P [T]here is ample documentation from the numerous times he was

locked up in the drunk tank and what he described as too numerous to count arrests for

alcoholism and sort of a pattern of clear alcohol abuse, can I say 100 per cent it was

dependence? No, I can’t. Clearly, it heads in that direction if it’s not.” N.T. PCRA

(continuedP)

error is not chargeable to trial counsel, of course; and, in any event, for the reasons

discussed in the text, we would conclude that Bardo was not prejudiced.

[J -145A&B-2012] - 18

Hearing, 11/13/09, at 569 (emphasis added). Furthermore, Dr. Berger testified that he

could not document that Bardo had “withdrawal symptomology” at the time of the

offenses, id. at 574, raising a question as to the relevance of his diagnosis of alcohol

dependence.

Meanwhile, Mr. Delaney had concluded in 1993 that Bardo was not alcohol

dependent. N.T. PCRA Hearing, 11/10/09, at 294-96; see Psychological Evaluation of

Michael Bardo by Ned Delaney, dated 1/27/93 (“1993 Psychological Evaluation”). Like

Mr. Delaney, Dr. O’Brien concluded that Bardo was not alcohol dependent, based on

the lack of any indication that Bardo had ever experienced withdrawal symptoms during

any of his several hospitalizations or incarcerations, as well as the lack of evidence of

escalating use of alcohol or tolerance, especially during the two years prior to the

current offenses when Bardo was working, functioning, undergoing counseling, and

drinking on a social basis without experiencing a great deal of difficulty. N.T. PCRA

Hearing, 11/13/09, at 614-15, 625, 642, 648-49; see also id. at 649 (Dr. O’Brien testified

that the diagnostic criteria for alcohol dependence require “physiological dependence on

alcohol[, which is] indicated by evidence of tolerance or symptoms of withdrawal, and [ ]

tolerance would be an increase and escalating amount of alcohol over time,” and

concluding that there was no evidence for these diagnostic criteria in Bardo’s records).

Consistent with Dr. O’Brien’s and Mr. Delaney’s views, it was undisputed that, even

though Bardo had been admitted to the hospital once in 1984, three times in 1985, and

once in 1988, and had been incarcerated several times, there was no documentation in

any of the hospital or prison records that Bardo had ever suffered symptoms of or had

been treated for alcohol withdrawal. N.T. PCRA Hearing, 11/9/09, at 118-19, 128, 131-

33, 149; & 11/13/09, at 571-72, 574, 648.

[J -145A&B-2012] - 19

On this record, we would conclude that there is no reasonable probability that

any juror would have found that Bardo’s alleged alcohol dependence was an additional

mitigating factor under Section 9711(e)(8), the catch-all mitigating circumstance, and

then reached a different sentencing verdict.11 Our view is informed by the inconsistency

of the testimony regarding alcohol dependence, even among Bardo’s own expert

witnesses; the reliance of all the experts exclusively on Bardo’s self-reports for their

conclusions regarding his alleged alcohol dependence; the equivocation of Dr. Berger

on this issue; the fact that the strongest proponent of Bardo’s alleged alcohol

dependence, Dr. Blumberg, only interviewed Bardo in 2008, after he had been

imprisoned for approximately fifteen years for his offenses; open questions as to the

time period of any dependence; and the lack of any documentation that Bardo had ever

suffered withdrawal symptoms during any of his hospitalizations or incarcerations.

Moreover, similar to voluntary intoxication, alcohol dependence is not in and of itself a

mitigating circumstance; more is required beyond the mere averment of dependence.

Here, Bardo has done little more than to assert that he was alcohol dependent. In sum,

we would conclude that Bardo has not carried his burden to show that trial counsel was

ineffective for failing to present expert testimony regarding his abuse of alcohol,

voluntary intoxication, and/or alcohol dependence. In reaching this conclusion, we do

not discount the possibilities that some additional jurors might have found alcohol abuse

as a mitigating factor, or that the juror(s) who found alcohol abuse as a mitigating factor

might have applied more weight to this factor. However, for the reasons discussed

above, we would find that the totality of any mitigating circumstances based on alcohol-

related factors is minimal when compared to the egregious aggravating circumstances

11

Section 9711(e)(8) is the only mitigator to which the allegations of Bardo’s alcohol

dependence could conceivably be relevant.

[J -145A&B-2012] - 20

in this case, which involved the strangulation murder of a young child during an indecent

assault. Accordingly, we would conclude that Bardo was not prejudiced by trial

counsel’s failure to present expert testimony regarding alcohol-related factors.

We turn now to the evidence of Bardo's other psychiatric diagnoses, and the

effect that his difficult childhood had on his mental health, as presented by the experts

who evaluated him shortly before the PCRA hearing, which took place fifteen years after

the offenses. In Dr. Blumberg’s opinion, at the time of the offenses, in addition to

alcohol intoxication and alcohol dependence, Bardo suffered from four other mental

disorders: chronic post-traumatic stress disorder (“PTSD”); dysthymic disorder;

personality disorder not otherwise specified (“NOS”) with schizoid, depressive, and

inadequate features; and pedophilia. N.T. PCRA Hearing, 11/9/09, at 18-19. Dr.

Blumberg also testified to Bardo’s social and psychiatric history, as obtained from the

interview with Bardo and from records readily available to trial counsel, including the

extreme neglect, abuse, and chaos experienced by Bardo as a young child; his genetic

pre-disposition to alcoholism, based on his father’s alcoholism; his regular, heavy

drinking beginning in his pre-teen years that had led to blackouts and risk of injury to

himself or others; his sexual victimization at the hands of an older man during

childhood; and his two suicide attempts and three psychiatric interventions. N.T. PCRA

Hearing, 11/9/09, at 19-99; see PCRA Court Opinion at 28-32. Based on the

combination and confluence of these diagnoses and factors, Dr. Blumberg further

opined that two statutory mitigating circumstances were applicable: at the time of the

offenses, Bardo was substantially impaired in his capacity to appreciate the criminality

of his conduct or to conform his conduct to the requirements of the law, 42 Pa.C.S. §

9711(e)(3), and Bardo was under the influence of extreme mental or emotional

[J -145A&B-2012] - 21

disturbance, id. § 9711(e)(2). N.T. PCRA Hearing, 11/9/09, at 19; Dr. Blumberg’s

Affidavit/Declaration at 12-13, ¶¶ 40-41.

Dr. Berger, Bardo’s other psychiatrist-expert, opined that, at the time of the

offenses, along with chronic alcohol/substance abuse and alcoholism, Bardo suffered

from “major depression recurrent, very possibly dysthymic, and . . . symptoms of

PTSD.” N.T. PCRA Hearing, 11/13/09, at 528. Dr. Berger testified that Bardo “was self-

reared[, having] had no rearing as a young child or a medium child.” Id. at 530. Dr.

Berger also testified that Bardo had started drinking alcohol at an early age and had

experienced a home environment “at best neglectful,” with inadequate food and dirty

clothing. Id. at 533-34; see id. at 541 (testifying that the records show that Bardo “was

brought up in a very dysfunctional family with little or no parenting skills,” by a mother

who had had six children by the age of twenty-six, with essentially no father figure in the

household). Expanding on the chronic neglect Bardo had experienced as a child, Dr.

Berger noted that he was one of the poorest in a group of poor children, was teased,

was small for his age, and wore ill-fitting clothing. Id. at 542. Dr. Berger also noted that

Bardo’s family had moved frequently during his adolescence, and opined that these

moves were significant because “it’s often disruptive to children to have to move

multiple times, because there is no sense of a secure environment,” a potential

detriment with even more impact due to Bardo’s dysfunctional family. Id. at 546. Based

on his review of the records of Bardo’s mental health history and on information from

Bardo directly, Dr. Berger opined that the Section 9711(e)(2) mitigating circumstance

was applicable, i.e., at the time of the offenses, Bardo was under the influence of

extreme mental or emotional disturbance. N.T. PCRA Hearing, 11/13/09, at 549.12

12

Mr. Delaney, the psychologist retained by Bardo before trial, did not mention any

mental health diagnoses other than alcohol abuse and did not opine that any statutory

mitigators were applicable in his PCRA testimony, in his affidavit prepared at the

(Pcontinued)

[J -145A&B-2012] - 22

Dr. O’Brien, the Commonwealth's psychiatric expert, testified that Bardo suffered

from mixed personality disorder with antisocial, dependent, and avoidant features, as

well as long-term alcohol abuse. N.T. PCRA Hearing, 11/13/09, at 642, 662, 705. Dr.

O’Brien explained that the avoidant feature referred to feelings of inadequacy, social

ineptness, and immaturity. Id. at 710-11. Although his mental health diagnoses were

distinct from and more limited than those of Dr. Blumberg or Dr. Berger, Dr. O’Brien

agreed that Bardo was raised in a dysfunctional family, citing his “unkept” home, his

dirty clothing, inadequate food, lack of parental supervision and intervention, drinking at

an early age, frequent moves with related changes of school, financial difficulties,

neglect, and discipline involving physical abuse with a belt or paddle. Id. at 671-79,

693-95. However, Dr. O’Brien concluded, based on the records and his evaluation of

Bardo, that neither statutory mitigator, Section 9711(e)(2) or (e)(3), was applicable.

N.T. PCRA Hearing, 11/13/09, at 714, 719.

The PCRA court focused primarily on the testimony of Dr. Blumberg and Dr.

O’Brien, concluding that “both are credible, but on the basis of what we saw and what

we heard, we are persuaded by and more comfortable with the testimony presented by

PCRA counsel.” PCRA Court Opinion at 34. The PCRA court concluded that Bardo

had established that trial counsel were ineffective for failing to proffer as mitigation

evidence expert testimony regarding his history of mental health issues, his psychiatric

(continuedP)

request of PCRA counsel, or in his 1993 report to trial counsel. See N.T. PCRA

Hearing, 11/10/09, at 256-319; Affidavit/Declaration of Ned Delaney Pursuant to 28

U.S.C. § 1746 and 18 Pa.C.S. § 4904, undated, but prepared for PCRA purposes

(“Affidavit/Declaration of Mr. Delaney”) (Petitioner’s Exhibit 32); Psychological

Evaluation of Michael Bardo by Ned Delaney, dated 1/27/93 (“1993 Psychological

Evaluation”) (Petitioner’s Exhibit 30).

[J -145A&B-2012] - 23

diagnoses, and his childhood of neglect and abuse, which contributed to his psychiatric

problems.

The Commonwealth argues that such evidence would have been cumulative of

what the jury actually heard at trial and sentencing. Commonwealth’s Brief at 66-67.

We would find that the evidence presented at the PCRA hearing would not have led to a

different penalty verdict. In our view, the record does not fully support the PCRA court's

findings, and the court considered only the evidence in mitigation presented at the

PCRA hearing, without weighing that evidence against the aggravating circumstances.

Our re-weighing of the totality of the mitigating factors, including the additional evidence

in mitigation presented at the PCRA hearing, as against the egregious aggravating

factors in this case, leads us to conclude that Bardo was not prejudiced by trial

counsel’s failure to present expert testimony in the penalty phase as to Bardo’s

psychiatric history and diagnoses and his childhood environment.

The PCRA court particularly criticized trial counsel’s failure to obtain and utilize

all of Bardo’s records, from school, Luzerne County Children and Youth Services

(“LCCYS”), juvenile probation authorities, and from his various hospitalizations. We

consider first the school records. The PCRA court expressly found that “Trial Counsel

failed to obtain . . . school records for Bardo.” PCRA Court Opinion at 36. However,

this conclusion is not supported by the certified record. As noted, through the testimony

of an assistant principal, penalty phase counsel presented numerous school records,

detailing Bardo’s poor academic performance from an early age until he left school at

age seventeen. See N.T. Penalty Phase, 1/28/93 at 710-28. In addition, two of Bardo’s

teachers testified to his poor performance in school, his unkempt appearance, and his

uninvolved parents. Id. at 729-35, 747-49. Bardo has not specified, and the PCRA

court has not clarified, what additional school records trial counsel should have obtained

[J -145A&B-2012] - 24

and utilized, and what additional insights these unspecified records might have offered.

There is nothing in the record to suggest that the unspecified school records to which

the PCRA court referred would have provided anything more than cumulative

information to the testimony of the assistant principal and teachers.

In the context of school records, the PCRA court’s opinion specifically mentions

only the records of the Children’s Service Center concerning Bardo’s efforts in the

program’s Adolescent Learning Center when he was fifteen or sixteen years of age.

See PCRA Court Opinion at 36; N.T. Penalty Phase at 727-28, 787-88 (respectively,

assistant principal’s testimony and Bardo’s testimony). The PCRA court noted

“[a]propos of Counsels’ stewardship,” that trial counsel had neglected to call as a

witness a representative from the Children’s Service Center for the purpose of admitting

these records. PCRA Court Opinion at 36. During the PCRA proceedings, it was

stipulated that trial counsel’s files included Children’s Service Center records for Bardo.

See Stipulation between Petitioner and the Commonwealth regarding PCRA Hearing

Testimony of Jessica Johnson, at ¶ 2. However, the content of the Children’s Service

Center records was never mentioned, never presented, and never discussed during the

PCRA proceedings. PCRA counsel did not suggest, and the PCRA court did not

determine, what information or insights would have been gained by admission of these

records.

Thus, based on the certified record before us, we would conclude that Bardo has

not established ineffective assistance based on trial counsel’s failure to proffer his

Children’s Service Center records or any other school records.

With respect to Bardo’s home environment during his childhood and early

teenage years, as we have already summarized, Bardo’s mother and Bardo himself

testified at the penalty phase concerning his difficult and unsupervised childhood,

[J -145A&B-2012] - 25

exemplified by his alcohol abuse beginning as a pre-teenager, the sexual abuse he

experienced as a way of obtaining alcohol, and his two suicide attempts. The

dysfunctional, chaotic, neglectful, unsupportive, and abusive nature of Bardo’s

childhood was further developed and presented at the PCRA hearing by expert

witnesses, who based their testimony largely on Bardo’s juvenile probation file and his

LCCYS file, as well as on what Bardo himself related to them. PCRA Court Opinion at

29. More specifically, the PCRA court determined that the following was not presented

to the sentencing jury: Bardo’s genetic pre-disposition to alcoholism based on the fact

that his biological father was an alcoholic; Bardo’s own drinking at an early age,

resulting in blackouts and injury to himself; Bardo’s history of sexual victimization, as

revealed through records, and not just uncorroborated family testimony; and Bardo’s

psychiatric interventions, hospitalizations, and diagnoses following his two suicide

attempts. Id. at 29-31. Nevertheless, based on our review of the penalty phase

testimony and the relevant records, we would conclude that the PCRA court’s ultimate

determination is not supported by the record. As summarized above, Bardo and his

mother testified at the penalty phase regarding his biological father's alcoholism;

Bardo’s heavy drinking beginning in his preteen years, which his mother was unable to

control and which caused him to “fall into the house” some nights; his sexual abuse at

the hands of an older male in order to obtain alcohol; and his two suicide attempts.

Much of the testimony presented by defense experts at the PCRA hearing was merely

cumulative of the testimony provided by Bardo and his mother.

Furthermore, after thoroughly reviewing Bardo’s childhood records cited by the

PCRA court as missing from penalty phase consideration, see PCRA Court Opinion at

29 (citing Petitioner's Exhibits 3, 4, 5, 6, and 7), we would conclude that they do not

describe a childhood home environment materially distinct from or worse than that

[J -145A&B-2012] - 26

described by Bardo himself and his mother at the penalty hearing. For example, PCRA

counsel put great emphasis on an LCCYS Case Report dated July 20, 1972, when

Bardo was three years old and had been admitted, along with one of his siblings, to a

day-care home. See Case Record re: Michael Bardo, dated 7/20/72, prepared by

Caseworker Mariellen Fine (“1972 Bardo Case Record”) (Petitioner's Exhibit 4).13

LCCYS apparently made these day-care arrangements to assist Bardo’s mother. Id. at

1. PCRA counsel emphasized the caseworker’s findings that Bardo was “rather dirty”

when he came daily to the home, and that “the children stated they were not being fed

at home.” N.T. PCRA Hearing, 11/12/09, at 348 (citing 1972 Bardo Case Record at 2).

However, the document must be considered in its entirety before evaluating its possible

import. Bardo’s mother denied the accusation that she was not feeding her children and

was said to be “extremely upset” by the charge. 1972 Bardo Case Record at 2. The

caseworker further noted that Bardo was “not a very good eater” and would not eat very

much; nonetheless, she described him as “of normal size and appear[ing] to be

developing normally . . . [and] appear[ing] to be a normal, healthy little boy.” Id. at 1-2.

She also noted an attachment to and close relationship with his mother. The

caseworker concluded that Bardo had made progress in the day-care home, that he

enjoyed playing with the other children and going outside to play, that he talked

constantly, that he was a very polite child, and that he listened attentively to instructions.

Id. at 1-2. Thus, the 1972 Bardo Case Report is far from uniformly negative in

describing Bardo’s earliest years. As set forth in another document cited by the PCRA

court, the LCCYS file on the Bardo family was closed on May 31, 1984, after fourteen

13

In Bardo’s Appendix to his Brief, he indicates that the date of this Case Record was

April 3, 1972. This is incorrect. As is clear from the document itself, April 3, 1972, was

the date that Bardo began attendance at the day-care home. The caseworker prepared

the document on July 20, 1972, after she had visited the day-care home several times.

[J -145A&B-2012] - 27

years of services. See Letter from LCCYS to Jean McCoskey, Chief Probation Officer

of the Luzerne County Juvenile Court, dated 1/16/86 (Petitioner's Exhibit 3). The letter

indicated that there had been no contact with the Bardo family since the file was closed,

there was no reason given as to why the file was closed, and there is no indication from

the records that the file was ever reopened. Thus, other than clarifying that LCCYS

involvement with the Bardo family ended for unspecified reasons when Bardo was

fifteen, this letter offered no helpful insights, except to document that LCCYS had been

involved with the Bardo family in unspecified ways for many years.

Another record cited by the PCRA court was a “Social Investigation” concerning

Bardo’s older brother George, dated April 3, 1981, after he had apparently been

arrested for damaging a school. See Social Investigation Re: George Bardo, dated

4/3/81 (Petitioner's Exhibit 5). The document indicated that Bardo’s mother reported as

her only income $379 from Social Security, and that the family resided in a “very poorly

kept” apartment, which was “dark and dirty with soiled clothing visible.” Id. Two other

documents are short and undetailed juvenile probation records with regard to Bardo,

prepared when he was ages twelve and sixteen, respectively. See Luzerne County

Juvenile Probation Records, dated 4/10/82, and 6/3/85 (Petitioner's Exhibits 6 and 7,

respectively). In the first probation document,14 the supervisor concluded that Bardo’s

progress had been fair, recommended that his case be closed, but cautioned that he

would probably not avoid trouble in the future because his supervision at home was

“terrible.” Petitioner's Exhibit 6. As summarized in the second probation document,

Bardo had been arrested on unspecified charges, and he subsequently stated that he

had been drinking and was drunk at the time of his arrest; in addition, his mother stated

14

Neither document indicates the nature of the offenses for which Bardo was under

supervision.

[J -145A&B-2012] - 28

that he was uncontrollable when he was drinking. Petitioner’s Exhibit 7. These records,

cited by the PCRA court, clearly set forth a troubled household and a troubled youth, but

they do not present a picture materially different from that provided by trial counsel,

through the testimony of Bardo, his mother, and school personnel.

After reviewing all the records related to Bardo’s childhood environment,

particularly those cited by the PCRA court as not having been presented by trial

counsel, and all the testimony presented at the penalty phase and PCRA hearings, we

do not dispute that Bardo’s childhood was characterized by neglect, a lack of

supervision, abuse, and impoverishment. However, this is not the ultimate question.

Testimony presented during the penalty phase described all these aspects of Bardo’s

childhood and the environment in which he was raised. The expert testimony presented

at the PCRA hearing was largely cumulative of that prior testimony and presented only

relatively minor fresh insights. Counsel is not ineffective merely because he or she fails

to present expert testimony concerning a defendant’s childhood history and home life

that would have been cumulative of testimony presented by a defendant’s mother. See

Commonwealth v. Lark, 698 A.2d 43, 51 (Pa. 1997). Thus, we would hold that Bardo’s

claim that trial counsel was ineffective for failing to present expert testimony concerning

his childhood and the environment in which he was raised fails.

With respect to Bardo’s own sexual victimization as a teenager, it is important to

remember that, during the penalty phase, both Bardo and his mother testified that he

had experienced sexual abuse in exchange for the provision of alcohol during his

teenage years. The PCRA court determined that this abuse was “well-documented in

records readily available to Trial Counsel,” but was not proffered as corroborating

evidence. PCRA Court Opinion at 30 (citing four documents: Petitioner’s Exhibits 23,

24, and 25, and Commonwealth’s Exhibit 3). However, two aspects of these records

[J -145A&B-2012] - 29

greatly decrease their significance and import. First, with respect to Bardo’s sexual

abuse, the documents contain only his self-reports; thus, the four documents

corroborate Bardo’s penalty phase testimony only to the extent that a self-report can be

corroborated by a prior self-report. See, e.g., N.T. PCRA Hearing, 11/13/09, at 563

(testimony of Dr. Berger acknowledging that there was no independent corroboration of

Bardo’s self-report of sexual abuse). Bardo’s self-reports of sexual abuse in the

documents were merely cumulative of the penalty phase testimony of Bardo and his

mother.

Second, and more importantly, the documents all originated shortly after Bardo’s

arrest for prior sex-related offenses, i.e., the statutory rape and indecent assault of

another three-year-old niece in February 1988, when Bardo was eighteen years of age,

offenses to which he pled guilty. The first time Bardo disclosed the sexual abuse was

during a February 27, 1988 interview with police concerning these prior sexual offenses.

N.T. PCRA Hearing, 11/9/09, at 121-24 (testimony of Dr. Blumberg as to Bardo’s

statement to police on 2/27/88 (Commonwealth Exhibit 3)). The other three documents

cited by the PCRA court likewise contain simply Bardo’s self-reports of sexual abuse in

the context of his psychological evaluations following his February 1988 arrest. See

Multimodal Life History Questionnaire, completed by Michael Bardo, 8/12/88,

(Petitioner’s Exhibit 23) at ¶ 9.D.7 (in response to a request for information about any

significant homosexual reactions or relationships, reporting that he “was raped when

[he] was 13 by a man”); Autobiography Outline, Transitional Sex Offender Program,

completed by Michael Bardo, 1988, (Petitioner’s Exhibit 24) at 2, ¶ C.11 (in response to

the question “who scared or humiliated you sexually? How? When?”, writing “His name

was Tony Koonrad. He got me drunk then raped me[.] I was about 12 years old[.]”);

Intake Evaluation of Michael Bardo by Community Counseling Services of N.E. PA,

[J -145A&B-2012] - 30

dated 7/27/88, (Petitioner’s Exhibit 25) at 2 (self-report of sexual assault by a friend ten

years older, beginning at age thirteen and continuing until Bardo’s marriage at age

seventeen); see also N.T. PCRA Hearing, 11/9/09, at 124 and 130 (Dr. Blumberg

testifying that “I think we can all agree that prior to [Bardo’s] being accused of molesting

his niece [in 1988], he did not admit that he had been sexually assaulted himself.”).15

Based on the above considerations, and contrary to Bardo’s assertions, we

would conclude that the above-cited documents at issue had only marginal value in

corroborating Bardo’s alleged abuse, and, in addition, were potentially highly prejudicial

to Bardo. The documents serve to “corroborate” Bardo’s testimonial self-report of

abuse only via a similar, albeit earlier, self-report -- made in the context of a criminal

offense, disturbingly similar to the instant offense. Proffering the documents as

evidence, rather than simply relying on the testimony of Bardo and his mother regarding

his sexual victimization, may very well have opened the door for the Commonwealth to

present evidence regarding the criminal circumstances that gave rise to the documents,

evidence that would have been highly prejudicial to Bardo. Not surprisingly, trial

counsel made clear that he successfully sought to exclude any evidence relating to

Bardo’s prior sexual offense against a minor. N.T. PCRA Hearing, 11/12/09, at 388,

414-15.16 This was a reasonable strategy. Furthermore, Bardo has not established

15

As the Commonwealth notes, Dr. Berger acknowledged at the PCRA hearing that he

had erroneously believed that Bardo had first disclosed his sexual victimization in a prior

report from LCCYS. Commonwealth’s Brief at 47 (citing N.T. PCRA Hearing, 11/13/09,

at 561-63). When PCRA counsel acknowledged that there was no such prior report, Dr.

Berger stated that Bardo’s delayed report of abuse was an important fact to note in

assessing its credibility. N.T. PCRA Hearing, 11/13/09, at 563.

16

See also Defendant’s Omnibus Pre-Trial Motion at 7-8 ¶¶ 22-24 (seeking to bar the

Commonwealth from using Bardo’s prior conviction for statutory rape, involuntary

deviate sexual intercourse, indecent assault, and corruption of minors as evidence).

[J -145A&B-2012] - 31

prejudice because, in our judgment, any potential additional mitigation value of his prior

self-reports of sexual victimization would have been minimal, and would not have led to

a different penalty verdict, particularly given the egregious aggravating circumstances of

this case. Accordingly, we would conclude that Bardo’s claim of trial counsel

ineffectiveness for failing to proffer the 1988 documents to “corroborate” his and his

mother’s penalty phase testimony regarding his alleged sexual victimization fails.

Finally, with respect specifically to Bardo’s psychiatric history and diagnoses, the

PCRA court emphasized the “inexplicabl[e]” failure of trial counsel to present the expert

testimony of Dr. Berger and Mr. Delaney, despite their having been retained by trial

counsel to evaluate Bardo prior to trial. PCRA Court Opinion at 37, 40-43 (finding that

trial counsel had no reasonable strategic or tactical basis for this omission). After

initially evaluating Bardo in 1993, Dr. Berger did not prepare a report, but merely

indicated to trial counsel that his findings would not be helpful in the guilt phase of trial,

e.g., with respect to competency or defenses such as diminished capacity, guilty but

mentally ill, or insanity; however, Dr. Berger also indicated that, if the trial were to

include a penalty phase, he might be able to assist in some unspecified way. Trial

counsel did not follow up on this possibility and apparently never re-contacted Dr.

Berger. See N.T. PCRA Hearing, 11/12/09, at 488-92 (testimony of lead trial counsel,

Joseph Yeager, Esq.); id., 1/13/09, at 519-23 (testimony of Dr. Berger); Letter from Dr.

Berger to Mr. Yeager, dated 1/13/93 (Petitioner's Exhibit 35). Counsel testified that he

had no strategic basis for not re-contacting Dr. Berger to further discuss his potential

ability to assist in the penalty phase. N.T. PCRA Hearing, 11/12/09, at 489-90.

Similarly, counsel testified that Mr. Delaney was not considered as an expert witness for

the penalty phase, but should have been so considered. Id. at 477-84. The PCRA

court concluded that Bardo established Pierce/Strickland ineffective assistance of

[J -145A&B-2012] - 32

counsel for failing to present the testimony of Dr. Berger and Mr. Delaney with regard to

Bardo’s psychiatric history and diagnoses. We conclude otherwise.

Mr. Delaney was retained by trial counsel in 1993 “to determine the scope, depth

and extent of Mr. Bardo’s use and abuse of alcoholic beverages and concomitant

impact on his behavior.” 1993 Psychological Evaluation. Mr. Delaney concluded that

Bardo had entered into a pattern of alcohol and drug abuse at the age of eleven, and

his then-current drug of choice was beer. Id. Mr. Delaney opined that Bardo’s “history

and current behavior [are] consistent with the diagnostic criteria established to

determine alcohol abuse.” Id. at 2. Importantly, this diagnosis -- of alcohol abuse --

was the only mental health diagnosis made by Mr. Delaney.17 We have already

discussed in detail our reasons for rejecting Bardo’s claim respecting the value in

mitigation of alcohol-related factors, and we need not repeat that analysis.

17

Mr. Delaney also listed a series of “characterological personality traits which support

the diagnosis [of alcohol abuse],” including average range of intelligence; a tendency “to

over simplify information fields perceived as complex or ambiguous;” restricted ability to

appreciate other points of view; poorly developed problem solving skills; negative self-

esteem; a tendency to dislike himself, evolving into feelings of inferiority and/or

inadequacy; a lack of mature social skills; difficulty establishing and maintaining deep

and intimate relationships; a guarded, constrained, and withdrawn manner; difficulty

dealing with his sexuality; a tendency to act on his impulses; evasion of responsibilities;

and difficulty delaying gratification and sustaining goal directed behaviors. 1993

Psychological Evaluation at 2; see also N.T. PCRA Hearing, 11/10/09, at 277 (listing

same traits).

“Characterological personality traits” are not psychiatric diagnoses, and they

were not presented as such. Furthermore, personality traits such as impulsiveness,

evasion of responsibilities, and difficulty with delayed gratification would not necessarily

be interpreted by a jury in a manner favorable to the defendant. For example, as we

have previously noted, a jury might very well find that impulsiveness is an unfavorable

indication of an accused’s future dangerousness. See Commonwealth v. Howard, 719

A.2d 233, 238 & n.5 (Pa. 1998).

[J -145A&B-2012] - 33

With regard to Dr. Berger, the circumstances are more complicated. Dr. Berger

based his PCRA opinion testimony on his 2009 re-evaluation of Bardo and his review of

Bardo’s self-reports and numerous records. N.T. PCRA Hearing, 11/13/09, at 525-26,

565-66. Dr. Berger testified that he did not recall whether, following his 1993 pre-trial

evaluation, he had concluded that Bardo was suffering from any psychiatric disorders.

Id. at 554-55.18

When asked during the PCRA hearing whether Bardo suffered from mental

illness at the time of the offenses, Dr. Berger answered as follows: “I believe that based

on what [Bardo] told me and the history that he did. . . . I reached the opinion that

[Bardo] was suffering with major depression recurrent, very possibly dysthymic, and

also at the time I saw him most recently, he had some symptoms of [PTSD] and some

of what he told me about the events at the time would also indicate he had symptoms of

PTSD,” along with alcohol abuse and long term alcoholism. Id. at 527-28. When asked

whether Bardo, at the time of the offenses, suffered from an extreme mental or

emotional disturbance, i.e., statutory mitigator Section 9711(e)(2), Dr. Berger answered

as follows: “Again, I don’t remember specifically at the time. I’m basing it on the

information that I had gotten and the answer would be yes . . . [b]ased on the record

review that I had indicating the previous mental health history and also the information

contained [sic] from Mr. Bardo directly.” Id. at 549.19

The records of Bardo’s mental health history that Dr. Berger relied on were from

Bardo’s psychiatric admissions in the summer of 1985, when he was sixteen, after he

18

Second chair counsel testified that, in a pre-trial phone conversation, Dr. Berger told

him that Bardo was not insane and was competent, but had some sort of anti-social

personality disorder. N.T. PCRA Hearing, 1/12/09, at 378-79.

19

Dr. Berger did not suggest that the evidence satisfied any other statutory mitigators.

[J -145A&B-2012] - 34

twice attempted suicide, and in February 1988, when he was nineteen, after his arrest

for his first sexual offense against a three-year-old niece. As revealed by these records,

Bardo first received psychiatric care after his first suicide attempt, which was apparently

prompted by an argument and suicide pact with his girlfriend, leading both to take an

overdose of medication. First Hospital Wyoming Valley, Psychiatric Admission Note,

dated 7/19/85 (Petitioner’s Exhibit 11); First Hospital Wyoming Valley, Social Service

Assessment, dated 7/31/85 (Petitioner’s Exhibit 17). Bardo’s second suicide attempt, in

which he cut his wrist while intoxicated after another argument with his girlfriend,

occurred only weeks after the first attempt. He stated at that time that he was very

depressed because his girlfriend was residing in a group home in another city.

Wyoming Valley Clinic, handwritten note, dated 8/23/85 (Petitioner’s Exhibit 10); First

Hospital Wyoming Valley, Discharge Summary, dated 9/17/85 (Petitioner’s Exhibit 18);

Luzerne-Wyoming County Mental Health Center, Crisis Intervention, dated 8/23/85

(Petitioner’s Exhibit 19). At the time of these 1985 suicide attempts, Bardo was

diagnosed with major depression, recurrent; and conduct disorder, socialized,

aggressive. First Hospital Wyoming Valley, Psychiatric Admission Note, dated 7/19/85

(Petitioner’s Exhibit 11); First Hospital Wyoming Valley, Discharge Summary, dated

9/17/85 (Petitioner’s Exhibit 18).

At the time of his 1988 psychiatric hospitalization, Bardo was diagnosed with a

different set of psychiatric disorders: dysthymic disorder; adjustment disorder with mixed

emotional features; and personality disorder, not otherwise specified (“NOS”). Wilkes-

Barre General Hospital Discharge Face Sheet, dated 8/3/88 (Petitioner’s Exhibit 21);

Community Counseling Services of N.E. PA, Diagnosis Form, Identifying Data, dated

7/27/88 (Petitioner’s Exhibit 22). In an intake evaluation for the 1988 admission, Bardo

reported being depressed and having thoughts of suicide since he raped his niece.

[J -145A&B-2012] - 35

Community Counseling Services of N.E. PA, Intake Evaluation, dated 7/27/88,

(Petitioner’s Exhibit 25) at 1. In this evaluation, Bardo’s mental status was summarized

as follows: cooperative; oriented to person, time, and place; coherent; depressed mood;

intact memory; poor insight and judgment as to his current circumstances; and no

indication of delusions or hallucinations. Id. at 3.

When asked at the PCRA hearing whether he could have conveyed to the

sentencing jury a mitigating portrayal of Bardo, Dr. Berger responded, in equivocal

fashion: “I think there were factors that I could have talked about that may have played

a role, yeah.” PCRA Hearing, 11/13/09, at 533. Two main factors presented by Dr.

Berger are relevant to this consideration: his diagnoses that at the time of the murder,

Bardo suffered from major depression and PTSD. With regard to Dr. Berger’s opinion

that Bardo suffered from major depression, it is instructive to consider the timing of

Bardo’s various psychiatric diagnoses as revealed in the records. In 1985, after his two

suicide attempts within weeks of each other at the age of sixteen, which was seven

years prior to the current offenses, Bardo was diagnosed with major depression and a

conduct disorder. Three years later, in 1988, following the molestation of his first niece,

he was diagnosed with dysthymic disorder; adjustment disorder with mixed emotional

features; and personality disorder NOS; however, he was not diagnosed with major

depression. Dr. Berger explained that acute episodes of major depression can occur

episodically in psychiatric patients, sometimes on top of dysthymic disorder, a low-

grade, chronic type of depression. N.T. PCRA Hearing, 11/13/09 at 566.20 On this

20

All three psychiatrist-experts gave a similar definition of dysthymic disorder. As

defined by Dr. Berger, dysthymic disorder is “a low-grade chronic depression. It's

almost a personality characteristic. I like to describe them -- essentially, the people who

are just that chronic negative depressed [sic].” N.T. PCRA Hearing, 11/13/09, at 547.

(Pcontinued)

[J -145A&B-2012] - 36

record, the fact that Bardo was diagnosed with major depression in 1985, but not in

1988, may have constituted evidence that Bardo was subject to acute episodes of major

depression, but it did not establish that Bardo suffered such an episode in 1992,

specifically at the time of the September 1992 killing.

Dr. Berger explained the basis for his diagnosis of major depression at the time

of the instant offenses as follows: “[S]o I found anyway -- and this is just my opinion --

based on what [Bardo] told me[,] and also the records[,] that he was suffering from

[major] depression.” Id.; see also id. at 527-28. However, Dr. Berger’s testimony

provided no insight as to what Bardo told him in 2009 that could have informed Dr.

Berger’s diagnosis of major depression at the time of the offenses in 1992. See, e.g.,

Commonwealth v. Steele, 961 A.2d 786, 824 (Pa. 2008) (finding problematic the

testimony of mental health professionals who evaluated defendant for PCRA purposes

fifteen years after offenses because experts did not explain how their evaluations in

2000 led to their conclusions regarding defendant’s mental status at time of offenses in

(continuedP)

Dr. Blumberg defined dysthymic disorder as a chronic, persistent depressive

disorder of mild to moderate severity. Id., 11/9/09, at 60. Individuals with this disorder

exhibit depressed mood, loss of interest in previously enjoyed activities, and “the

physical or vegetative symptoms of depression,” as well as “characterological

depression,” which means that they have impaired self-esteem, feel badly about

themselves, feel inadequate and hopeless, and consider life to be “basically horrible.”

Id. at 65-66.

Dr. O’Brien similarly defined dysthymic disorder as “a chronic subclinical

depression . . . [that is] less severe, but [is] chronic, people who are just down all of the

time.” Id., 11/13/09, at 657. He described individuals who suffer from dysthymic

disorder as follows: “It’s a glass very half empty type of person. They’re always

bummed out. They’re always negative. There’s chronic depressive quality to them.” Id.

at 717.

[J -145A&B-2012] - 37

1985). Accordingly, we would conclude that Dr. Berger’s diagnosis of major depression

at the time of the offenses did not have a strong evidentiary foundation.

With regard to Dr. Berger’s opinion that Bardo suffered from “symptoms” of

PTSD at the time of the offenses, it is important to recognize that Dr. Berger never

specified what “symptoms” of PTSD he believed Bardo exhibited. N.T. PCRA Hearing,

11/13/09 at 527-28, 559-61. On cross-examination, Dr. Berger testified that in 2009, he

found only two residual symptoms: “some nightmares of the sexual abuse and . . .

avoidant behavior, where he tends to avoid newspaper articles, television shows, things

like that that have sexual abuse in them.” Id. at 560. On this record, Dr. Berger’s

testimony provided no insight as to how Bardo’s nightmares and/or his avoidant

behavior were, or could be, manifest at the time of the offenses so as to constitute an

extreme mental or emotional disturbance or otherwise be deemed of significant

mitigation value in the context of a case involving his indecent assault and murder of a

child.

When asked about the triggering events for Bardo’s symptoms of PTSD, Dr.

Berger responded: "I think there are a couple of things. First of all, I think his early

childhood experiences of at least emotional neglect or abuse, as well as some physical

questions of physical abuse [sic]. But more importantly, he was self reared. This kid

really had no rearing as a young child or a medium child. And then he had a very

significant homosexual sexual abuse from age 13." Id. at 529-30; see also id. at 561.

Notably, despite three psychiatric admissions and psychiatric treatment much closer in

time to Bardo's sexual victimization and other negative childhood experiences, there is

no indication in any of the psychiatric records that Bardo ever experienced, reported, or

was diagnosed with any symptoms of PTSD. In contrast, a diagnosis of PTSD, or its

symptoms, was rendered only in 2008 or 2009, and only by psychiatrists retained for

[J -145A&B-2012] - 38

PCRA purposes, decades after the alleged sexual abuse and sixteen years after the

current offenses.

Dr. Berger acknowledged that several of his conclusions, specifically with regard

to Bardo's sexual victimization, nightmares, and avoidant behavior, were based

exclusively on Bardo's self-reports. Id. at 563-65. While we do not suggest that Bardo's

self-reports should be dismissed out of hand, the lack of any corroboration or prior

PTSD diagnosis, despite ample opportunities for such within the voluminous records

and multiple psychiatric interventions, certainly decreases the import of Dr. Berger’s

retrospective conclusions based exclusively on Bardo’s self-reports.

If trial counsel had called Dr. Berger to testify at the penalty phase hearing, the

jury would have had the responsibility to determine the credibility and weight to be

afforded his testimony.21 Of course, Dr. Berger’s testimony would not have gone to the

jury unchallenged. The Commonwealth would have had the opportunity to inquire into

the basis of his opinions via cross-examination, and to proffer its own expert. Indeed, at

the PCRA hearing, on cross-examination, the Commonwealth strongly challenged Dr.

Berger’s opinion testimony and proffered the testimony of Dr. O’Brien, who offered an

alternative view of Bardo’s mental state.

Specifically, Dr. O'Brien found no evidence that Bardo suffered from depression

either in 2009 or in 1992 at the time of the murder. PCRA Hearing, 11/13/09, at 601-06,

633, 657-58, 664-65. Dr. O'Brien noted that, at the time of his 2009 interview, Bardo

had received no psychiatric treatment for fourteen years, and opined that there had

been no treatment because Bardo manifested no symptoms and thus no treatment was

needed. Id. at 610, 622-23, 658-59. Dr. O’Brien further opined that Bardo had

experienced clinically significant depression only during two periods of his life: after his

21

The PCRA court did not make an assessment of Dr. Berger’s credibility.

[J -145A&B-2012] - 39

arrests for each of the sexual assaults against his nieces. Id. at 638-39, 664, 716-17.

Consistent with Dr. O’Brien’s opinion, the records showed that Bardo had never been

treated with psychotropic medication until after his arrest for the first sexual assault of

one of his nieces, and then he was similarly treated for a time after his incarceration for

the current offenses. Id. at 622-23, 658. Dr. O’Brien also rejected the diagnosis of

dysthymic disorder, which, he explained, is a chronic depression in which the affected

individual has “a chronically depressed mood that occurs most of the day, more days

than not, for at least two years,” and experiences “clinically significant distress or

impairment in social, occupational . . . or other important areas of functioning.” Id. at

657, 659. Dr. O’Brien found no evidence that Bardo exhibited any such clinically

significant distress or impairment in the two years prior to the offenses, which was the

most stable and quiet period of Bardo’s life, when he was continuously employed full

time, functioning, not hospitalized, and undergoing counseling related to his prior

offense; furthermore, although he was continuing to use alcohol socially, there was no

evidence that it was impairing his ability to function or was escalating. Id. at 659-60;

614-15, 625, 642, 649.

With regard to PTSD, Dr. O’Brien also had a very different opinion than Dr.

Berger. Dr. O’Brien did not find any symptoms of PTSD attributable to Bardo's sexual

abuse as a teenager; furthermore, he discerned no evidence of any symptoms of PTSD

prior to Bardo’s arrest for the current offense, a conclusion entirely consistent with the

record. Id. at 609-12, 643, 650, 653-57. The only PTSD symptom that Dr. O’Brien

detected in Bardo was avoidance, i.e., attempts to distract himself, to keep busy, to not

think about the current offenses and his resulting circumstances. Id. at 611, 652, 702.

It is important to emphasize that Dr. O’Brien’s observation of Bardo’s avoidance was

related to the current offense, and not, as Dr. Berger had opined, to his teenage sexual

[J -145A&B-2012] - 40

abuse. Consistent with his view of Bardo’s avoidance behavior, Dr. O’Brien opined that

the current offense was “the most traumatic thing [Bardo] has experienced,” causing

him a great deal of emotional and traumatic upset. Id. at 611, 622-23, 643, 650.

Nonetheless, Dr. O’Brien concluded that Bardo’s sole symptom of avoidance was not

sufficient to warrant a PTSD diagnosis. Id. at 611, 643.

Based on his review of the record, his evaluation of Bardo in 2009, Bardo's lack

of need for psychiatric treatment for the preceding fourteen years, as well as the facts of

the case, Dr. O'Brien also concluded that Bardo was not suffering from an extreme

mental or emotional disturbance at the time of the offenses. Id. at 714. Thus, the

testimony of Dr. O'Brien, whom the PCRA court found credible, see PCRA Court

Opinion at 34, serves as a strong counterbalance to Dr. Berger’s opinion of Bardo’s

psychiatric history and diagnoses, and their manifestation at the time of the offenses.

All of the above considerations must enter into the re-weighing on collateral review of

the totality of the mitigating and aggravating factors in this case. After careful review

and consideration of Dr. Berger’s testimony and the above-summarized records on

which he relied, we would conclude that Dr. Berger’s testimony did not support a finding

that Bardo’s psychiatric problems were manifest at the time of his offenses, such as

would have led to an extreme mental or emotional disturbance, pursuant to 42 Pa.C.S.

9711(e)(2); thus, we cannot conclude that any reasonable juror would have found this

statutory mitigator, much less assigned determinative weight to it. We acknowledge

that it is reasonably probable that one or more jurors may have found that Bardo’s

psychiatric history and diagnoses constituted a mitigating factor pursuant to the catch-all

mitigator, 42 Pa.C.S. § 9711(e)(8). However, upon reweighing the mitigating and

aggravating circumstances in light of Dr. Berger’s PCRA testimony as to Bardo’s

psychiatric history and diagnoses, we would not conclude that the additional evidence of

[J -145A&B-2012] - 41

mitigation would have caused any reasonable juror to conclude that the mitigating

factors balanced or outweighed the aggravating circumstances. Again, we view the

aggravating factors in this case as particularly egregious: the murder of a three-year-old

child by strangulation, involving forceful pressure to and deliberate compression of her

neck over a period of approximately four to five minutes until after she lost

consciousness, while perpetrating an indecent assault of the child that caused a four-

millimeter tear to her vagina, pain, and bleeding. N.T. Guilt Phase, 1/26/93, at 368-92

(supporting aggravating factors 42 Pa.C.S. 9711(d)(6) and (d)(16)). See Gibson II, 19

A.3d at 531 (citing Commonwealth v. Lesko, 15 A.3d 345, 383-84 (Pa. 2011), for

proposition that “where there is substantial aggravation, it may be particularly difficult to

prove Strickland prejudice based on additional mitigation submitted at the post-

conviction stage”).

We recognize that, in formulating his opinion concerning the mitigating

circumstances relevant to Bardo’s offense, Dr. Berger relied on the totality of his

psychiatric diagnoses of Bardo, including his diagnoses not only of depression and

symptoms of PTSD, but also of alcohol abuse and dependence, as well as his

consideration of Bardo’s childhood home environment and social background. See N.T.

Penalty Phase, 11/13/09, at 549 (Dr. Berger testified that the basis of his opinion that

Bardo suffered from an extreme mental or emotional disturbance at the time of the

offenses was “the record review that I had indicating the previous mental health history

and also the information contained [sic] from Mr. Bardo directly”). Our analysis above

has addressed these diagnoses and factors separately. However, we have also

considered their import collectively, and, for all the reasons explained above, we would

reach the same conclusions.

[J -145A&B-2012] - 42

We also recognize that additional testimony concerning Bardo's psychiatric

history and diagnoses was presented at the PCRA hearing by Dr. Blumberg. Of course,

Bardo is not entitled to relief merely because PCRA counsel proffered the testimony of a

different psychiatrist, who reached overlapping but distinct conclusions and diagnoses

from those of the psychiatrist consulted by trial counsel. Nothing in the law at the time

of trial in 1992, or at present, suggests that trial counsel is ineffective merely because

he or she did not consult with and present the testimony of several mental health

professionals with overlapping but not entirely consistent opinions.22

Furthermore, after carefully reviewing Dr. Blumberg’s testimony, we would

conclude that it was, in total, no more helpful in mitigation than Dr. Berger’s testimony,

and the disagreements between them with regard to particular diagnoses and

applicable statutory mitigating factors tend to vitiate the import of both. In sum, Dr.

Blumberg summarized largely the same points as did Dr. Berger from the records of

Bardo’s childhood, home environment, social history, and previous psychiatric

interventions and diagnoses. Based on his review of the records and on his evaluation

of Bardo in 2008, Dr. Blumberg suggested several diagnoses, which overlapped with,

but in some instances were distinct from, those suggested by Dr. Berger.

22

Trial counsel’s conduct must be viewed in light of governing law in 1992. Current

Pennsylvania standards with respect to counsel’s duty to develop mitigating evidence

are more exacting than in 1992, but counsel’s effectiveness should not be measured by

subsequently developed standards. See, e.g., Cullen v. Pinholster, ___ U.S. ___, ___,

131 S.Ct. 1388, 1407 (U.S. 2011); Bobby v. Van Hook, 558 U.S. 4 (2009). In this case,

the evolution of the standards for counsel’s performance does not seem to be of

determinative significance. The PCRA court credited counsel’s testimony that he had

no strategic reason for not pursuing Dr. Berger’s pre-trial determination that he might be

able to assist in the penalty phase. The focus in this appeal is on whether Bardo was

prejudiced by counsel’s failure to follow-up with Dr. Berger regarding his potential

mitigation testimony.

[J -145A&B-2012] - 43

For example, Dr. Blumberg concluded, in contrast to Dr. Berger, that Bardo did

not suffer from major depression at the time of the current offenses. N.T. PCRA

Hearing, 11/9/09, at 18-19, 161; Blumberg Affidavit at ¶ 36. Dr. Berger acknowledged

that “[w]e have a difference of opinion, absolutely,” N.T. PCRA Hearing, 11/13/09, at

567, but there was no exploration of the possible reasons for the difference. Notably,

the PCRA court erroneously found that both Dr. Blumberg and Dr. Berger diagnosed

Bardo with major depression. PCRA Court Opinion at 32 n.20. Dr. Blumberg also

opined that Bardo was intoxicated at the time of the offenses, an opinion that Dr. Berger

did not appear to share, or at least was more equivocal about. N.T. PCRA Hearing,

11/9/09, at 18-19, 40, 94-96, 108-09, 144-45; id. at 11/13/09, at 528, 538-39. Such

differences of opinion would not likely enhance the case for mitigation, but rather could

diminish the import of both psychiatrists’ testimony.

Turning to Dr. Blumberg’s opinion that, at the time of the offenses, Bardo

suffered from chronic PTSD, id. at 18-19, we have already discussed the numerous

questions surrounding Dr. Berger rendering a similar opinion. Dr. Blumberg’s testimony

contributes little to the resolution of these questions. To support his PTSD diagnosis,

Dr. Blumberg, like Dr. Berger, relied on Bardo’s self-reports that he had suffered sexual

abuse as a teenager, as well as on Bardo’s self-reports of his symptoms. N.T. PCRA

Hearing, 11/9/09, at 20, 73-88.23 However, undermining his own reliance on Bardo’s

self-reports, Dr. Blumberg repeatedly emphasized the importance of documenting an

individual’s self-reports in order to ensure their accuracy. Id. at 15 (“[I]t is essential to

have other documentation about the individual so that you could either confirm or refute

23

Although Dr. Blumberg testified that there were records indicating that Bardo was

sexually abused as a child, see N.T. PCRA Hearing, 11/9/09, at 20, those records are

Bardo’s self-reports of abuse made shortly after he was arrested for the sexual assault

of his niece in 1988.

[J -145A&B-2012] - 44

what they [sic] are reporting to you” and “Obviously, I don’t want to rely just on what a

Defendant is telling me because it may or may not be accurate.”); id. at 21 (“[I]t is

essential to try to have other sources of data that can either confirm or refute what a

Defendant tells you about their [sic] background, their [sic] growing-up experiences.”).

On cross-examination, Dr. Blumberg acknowledged that Bardo had told him that the

symptoms he had experienced from his sexual abuse as a teenager had “faded” after

three to four years, i.e., when he was nineteen or twenty years of age, which was three

years prior to the current offenses. Id. at 158-59. It is not clear if Dr. Blumberg

accepted or rejected this self-report, but, in any event, the severity of any symptoms of

PTSD that Bardo may have experienced at the time of the current offenses, as

evaluated seventeen years later, is impossible to assess from the records and remains

unclear from Dr. Blumberg’s testimony.

In addition, Dr. Blumberg listed a series of eight traumatic events, all self-

reported by Bardo, that may have served as triggering events for PTSD. Id. at 88, 152-

53. Dr. Blumberg opined that the most serious event was Bardo’s teenage sexual

abuse, but suggested further that other events could also have served as triggers,

including physical abuse within the family, an auto accident, an accident at work or

home, threats of injury or injury at the hands of another, and some other experience

causing serious injury or fear of serious injury or death. Id. at 88, 152-53. Apparently,

when Dr. Blumberg provided him with a diagnostic self-reporting questionnaire, Bardo

claimed to have experienced all the types of traumatic events listed. Id. at 152-54.

While Dr. Blumberg testified that an individual is more likely to develop PTSD when

exposed to more types of different traumatic events, id. at 88, he acknowledged that he

had not asked specific questions about most of the incidents Bardo reported as

traumatic; hence, the timing and severity of most of Bardo’s self-reported traumatic

[J -145A&B-2012] - 45

events were unexplored. Id. at 154. Dr. O’Brien challenged Dr. Blumberg’s use of the

self-reporting questionnaire, as well as his conclusions regarding Bardo’s PTSD

symptoms and stressors: “I think that the diagnostic criteria [for PTSD] require[ ] a

certain amount of specificity in terms of identifying, not only what the symptoms are with

specificity, but [also that] they’re linked to the alleged trauma, the reported trauma[,] and

also the trauma has to be of a certain severity. It’s not just any trauma.” N.T. PCRA

Hearing, 11/13/09, at 652. Thus, for all these reasons, Dr. Blumberg’s opinions

regarding a PTSD diagnosis had no greater mitigation value than the similar opinions of

Dr. Berger.

Dr. Blumberg also diagnosed Bardo with personality disorder NOS, with schizoid,

depressive, and inadequate features, with schizoid meaning emotionally withdrawn, and

depressive indicating chronic feelings of inadequacy and proneness to become quite

depressed. N.T. PCRA Hearing, 11/9/09, at 70. Dr. Blumberg explained that the

personality disorder diagnosis “is trying to make reference to his impaired thinking, his

impaired interpersonal relationships, his impaired social functioning that is characterized

primarily by his being a loner, by his being inadequate, by [h]is being chronically

depressed and essentially an inept individual.” Id. at 167. Dr. Blumberg further

explained that the personality disorder diagnosis “also impacts on [Bardo’s] impulse

control and his ability to think before acting on things. Basically his inability to tolerate

stressful events [sic].” Id. at 70. While these characteristics certainly suggested a

maladjusted individual, it is far from clear how their manifestation at the time of the

offenses could constitute supporting evidence for the statutory mitigators at 42 Pa.C.S.

§ 9711 (e)(2) or § (e)(3), i.e., that, at the time of the offenses Bardo was under the

influence of extreme mental or emotional disturbance, or was substantially impaired in

[J -145A&B-2012] - 46

his capacity to appreciate the criminality of his conduct or to conform his conduct to the

requirements of the law. See discussion infra.

In addition, Dr. Blumberg clarified that the personality disorder diagnosis overlaps

with most of Bardo’s other diagnoses. N.T. PCRA Hearing, 11/9/09, at 168; see also id.

at 65-66 (Dr. Blumberg testifying that dysthymic disorder is “associated with

characterological depression,” which means that individuals with this condition “have

persistently impaired self-esteem . . . feel badly about themselves . . . feel inadequate . .

. feel hopeless . . . feel like life is basically horrible[,] and [ ] these thoughts and feelings

have persisted . . . from early on and it becomes sort of a part of their character

makeup”); id. at 160-61. Dr. O’Brien expanded on the overlap of diagnoses, opining

that Dr. Blumberg’s diagnosis of dysthymic disorder was “a redundancy” to his

diagnosis of personality disorder NOS with depressive features; Dr. O’Brien saw no

reason to offer multiple different diagnoses of the same symptom. Id., 11/13/09, at 665.

Given Dr. Blumberg’s description of Bardo’s personality disorder NOS, his failure to link

it to the statutory mitigators at Sections 9711(e)(2) or (e)(3), his acknowledgment of

overlap with Bardo’s various other diagnoses, Dr. O’Brien’s testimony, and Dr. Berger’s

failure to render a diagnosis of personality disorder, we cannot conclude that Dr.

Blumberg’s diagnosis of personality disorder NOS would have had a significant

additional mitigating impact had it been presented to the jury.

Dr. Blumberg also diagnosed Bardo with pedophilia. N.T. PCRA Hearing,

11/9/09, at 18-19, 82-85, 161-66. However, trial counsel testified that “[pedophilia] is a

word that I would never want introduced in this trial,” as counsel did not “see how

showing Mike Bardo was a pedophile is going to [ ] help him.” Id., 11/12/09, at 413-14.

Trial counsel also testified to his concern that introducing the diagnosis of pedophilia

would open the door to admission of Bardo’s prior molestation of another three-year-old

[J -145A&B-2012] - 47

niece. Id. at 414-15. We cannot conclude that counsel’s view was unreasonable. See

Commonwealth v. Edmiston, 851 A.2d 883, 892-93 (Pa. 2004) (counsel not ineffective

for making tactical decision against presenting psychiatric expert testimony that

defendant was a pedophile, based on counsel’s fear that jury would tend to regard

pedophilia as more of an aggravating factor than a mitigating one).

Finally, Dr. Blumberg opined that the combination of Bardo’s mental disorders

supported the applicability of two statutory mitigating factors: extreme mental or

emotional disturbance, 42 Pa.C.S. § 9711(e)(2); and substantial impairment in the

capacity to appreciate the criminality of his conduct or to conform his conduct to the

requirements of the law, id. § 9711(e)(3). N.T. PCRA Hearing, 11/9/09, at 19, 91-98.

However, on cross-examination, Dr. Blumberg acknowledged that Bardo’s actions just

prior to and at the time of the murder showed that Bardo “recognized that he was doing

or engaging in some inappropriate conduct,” and that Bardo had “a basic appreciation of

what he was doing;” nonetheless, Dr. Blumberg opined that such recognition and

appreciation were consistent with substantial impairment at the time of the offense. Id.

at 173-74; see also id. at 175-81. The PCRA court tried to clarify the question of degree

of impairment with the following general query to Dr. Blumberg: “From [sic] someone

who is, let’s say a lay person, what is the difference [between] being impaired [and

being] substantial[l]y impaired]?” Dr. Blumberg responded that the degree of

impairment could not be determined via an objective scale, but rather was a

professional opinion or judgment call, rendered by an expert based on knowledge,

training, and experience. Id. at 194-95.

Ultimately, of course, it is a jury’s responsibility to assess the credibility of an

expert’s opinion and to determine whether the evidence supports the applicability of any

statutory mitigating factors. Here, we do not believe that the jury’s inclination to find one

[J -145A&B-2012] - 48

or more statutory mitigators would have been strengthened by Dr. Blumberg’s various

summary statements concerning Bardo’s mental status and the manifestation of his

combined psychiatric diagnoses. Indeed, Dr. Blumberg’s statements in some instances

contradict his ultimate opinion that Bardo was substantially impaired at the time of the

offenses in his capacity to appreciate the criminality of his conduct or to conform his

conduct to the requirements of the law. For example, Dr. Blumberg stated:

[Bardo] feels inadequate, he feels inept, he feels likely to be

rejected by a same-age partner, and not only felt sexually

aroused but I think psychologically more comfortable with

someone who is much younger, much more dependent,

much less likely to reject him or his attention.

N.T. PCRA Hearing, 11/9/09, at 84. The doctor added:

That [Bardo’s] chronic depression, again, is something that

underlined his whole sense of self, feeling inadequate,

helpless, depressed, as if a failure in his life, and that has

been a chronic and significant impediment throughout his

life.

* * * *

And then you have also the underlying personality

disturbance in which through all of the abuse and neglect of

growing up impacted on [Bardo’s] sense of self, interacted

on his thinking about himself and the world, his emotions, his

chronic depression, his inability to develop a long-term

stable relationship with another adult. And apparently the

only way that he would have an interaction with somebody

would be with somebody who was much younger, much

more helpless, much more vulnerable to whom he found

himself very sexually attracted.

* * * *

[Bardo] has extremely impaired self-esteem. He goes

through periods of depressed mood when he thinks about

his past, his background, and he numbs himself with alcohol,

[J -145A&B-2012] - 49

which further impairs his functioning. He has difficulty

maintaining relationships with other people.

He is kind of a loner, inept, anticipates the world is a

rejecting place. He is a chronically depressed and

inadequate guy and, you know, his life is -- he has not held

any great jobs. He’s done poorly in school. He essentially

failed at most everything that he has attempted and, you

know, then he even gets drunk and molests his niece.

* * * *

[The features of personality disorder NOS] were consistent

with [Bardo] being basically immature, inept, inadequate, a

loner . . . .

* * * *

[The diagnosis of personality disorder NOS] is trying to make

reference to [Bardo’s] impaired thinking, his impaired

interpersonal relationships, his impaired social functioning

that is characterized primarily by his being a loner, by his

being inadequate, by his being chronically depressed and

essentially an inept individual.

Id. at 95-96, 160-61, 166-67.

These observations, that Bardo was a generally depressed, inept, immature

loner who had often failed, felt inadequate, had low self-esteem, and was unable to

sustain adult relationships do not constitute evidence that, at the time of the offenses,

he was substantially impaired in the ability to appreciate the criminality of his conduct or

to conform his conduct to the requirements of the law, 42 Pa.C.S. § 9711(e)(3), or was

under the influence of extreme mental or emotional disturbance, id. § 9711(e)(2).

Likewise, Dr. Blumberg’s view that Bardo felt “more comfortable” and would only have

an “interaction” with someone who was much younger, dependent, helpless, vulnerable,

and unlikely to reject his attention, and to whom he was sexually attracted, does not

constitute evidence supporting these statutory mitigators. Furthermore, we agree with

[J -145A&B-2012] - 50

the Commonwealth that this evidence might well have been perceived by the jury as

more prejudicial than mitigating. See Commonwealth Brief at 56.

Having reviewed the entirety of Dr. Blumberg’s PCRA testimony, we believe it is

highly unlikely that any juror would have found either the Section 9711(e)(2) or the

Section 9711(e)(3) statutory mitigator, and, in our view, the PCRA court erred in finding

otherwise. Our conclusion is based on the facts of this case, Dr. Blumberg’s

acknowledgment that Bardo had a basic appreciation of what he was doing at the time

of the offenses, Dr. Blumberg’s statements concerning Bardo’s mental status and

personality characteristics, and the lack of any evidence upon which to ground a finding

that his mental status at the time of the offenses supported the applicability of either the

§ 9711(e)(2) or § 9711(e)(3) statutory mitigators. However, as with Dr. Berger’s

testimony, Dr. Blumberg’s testimony was reasonably likely to have caused one or more

jurors to find that Bardo’s psychiatric history and diagnoses constituted mitigating

circumstances under the catchall mitigator of Section 9711(e)(8). Nevertheless, upon

re-weighing the mitigating and aggravating factors, we would not conclude that any

additional evidence of mitigation discerned in Dr. Blumberg’s PCRA testimony would

have caused any reasonable juror to conclude that the mitigating factors balanced or

outweighed the egregious aggravating factors in this case.

In sum, based on our thorough review of the documents of record, the penalty

phase hearing, and the PCRA hearing, we would reverse the PCRA court’s order

insofar as it granted Bardo a new penalty phase hearing. First, the PCRA court’s

findings were, in some important respects, not supported by the record. Furthermore, in

our view, the PCRA court considered only the new evidence in mitigation before it at the

collateral phase and did not re-weigh the totality of the evidence in mitigation against

[J -145A&B-2012] - 51

the egregious aggravating factors present in this case. Having corrected these errors,

we would reverse the PCRA court’s grant of a new penalty phase hearing.24

24

In Commonwealth v. Martin, 5 A.3d 177 (Pa. 2010), a case with some similarities to

this case, the Court affirmed the PCRA court’s grant of a new penalty phase hearing

based on trial counsel’s ineffectiveness in failing to investigate and present mitigating

evidence that Martin had been diagnosed with mental illnesses that affected him before,

during, and after he murdered a homosexual male who had made sexual advances to

him.

During the penalty phase, Martin’s mother testified that he had started using drugs at an

early age; had been sexually abused by an uncle who was later convicted of the

molestations; and had undergone psychiatric treatment during several periods of his life.

Trial counsel did not present the testimony of, or even consult with, any mental health

experts as to potential mental health mitigation evidence. The jury found no mitigating

circumstances and three aggravating circumstances, and accordingly, determined that

Martin should be sentenced to death. Id. at 197-98.

At the PCRA hearing, Martin presented the testimony of two mental health experts who

had treated him for years prior to the murder, and he presented his mental health

records. This evidence established that, from age fifteen until after the murder, which

he committed at age twenty-one, Martin suffered from PTSD and depression, due to

repeated sexual molestations by his uncle. A third mental health expert, who evaluated

Martin after the murder, opined that due to Martin's PTSD and depression which,

importantly, had resulted from his prior sexual abuse, the male victim's sexual advances

immediately prior to the murder had placed Martin under the influence of extreme

mental or emotional disturbance, thus supporting the statutory mitigator at 42 Pa.C.S.

9711(e)(2). This expert further opined that the Section 9711(e)(3)statutory mitigator

was also applicable for the same reasons. 5 A.3d at 198-99.

Affirming the PCRA court’s grant of a new penalty phase hearing, the Court held that

the PCRA court's factual determinations were supported by the record and that the

PCRA court had correctly concluded that Martin was prejudiced as a matter of law. Id.

at 203-04. As we have reiterated in that case, each capital case challenging trial

counsel’s effectiveness for failing to present sufficient mitigation evidence must be

analyzed considering the facts presented, including the defendant’s unique life history.

Id. at 196. While Martin and the instant case have some superficial factual similarities,

we believe there are sufficient material distinctions to warrant a different outcome.

[J -145A&B-2012] - 52

II. Bardo’s Appeal (650 CAP)

We turn now to Bardo’s appeal, where he raised the following issues:

I. Whether the PCRA Court erred in denying Bardo’s claim

that he was denied due process, reliable sentencing and

effective assistance of counsel under the federal and state

constitutions because prejudicial pretrial publicity tainted the

entire venire panel and counsel failed to pursue a change of

venue on that basis.

II. Whether the PCRA Court erred in denying Bardo’s claim

that he was denied due process, reliable sentencing and

effective assistance of counsel under the federal and state

constitutions by the erroneous admission of victim impact

evidence.

III. Whether the PCRA Court erred in denying Bardo’s claim

that he was denied effective assistance of counsel under the

federal and state constitutions because counsel failed to

adequately investigate a viable voluntary intoxication

defense and, through expert testimony, present that defense

at the guilt and penalty phases.

IV. Whether the PCRA Court erred in denying Bardo’s claim

that he was denied due process, reliable sentencing and

effective assistance of counsel under the federal and state

constitutions because the Commonwealth violated its

obligations under Brady v. Maryland by failing to disclose

mitigating information about Bardo and his family that was

contained in Luzerne County Children and Youth Services

records and in failing to reach Bardo’s claim that he was

denied effective assistance of counsel because counsel

failed to adequately seek and obtain such records.

V. Whether the PCRA Court erred in denying Bardo’s claim

that he was denied due process, reliable sentencing and

effective assistance of counsel under the federal and state

constitutions because the trial court improperly incorporated

guilt phase evidence into the penalty phase without objection

by counsel.

[J -145A&B-2012] - 53

VI. Whether the PCRA Court erred in denying Bardo’s claim

that he was denied due process, reliable sentencing and

effective assistance of counsel under the federal and state

constitutions because the trial court gave erroneous

instructions on the nature and use of mitigating evidence and

failed to correct misleading closing arguments by the

Commonwealth without objection by counsel.

VII. Whether the PCRA Court erred in denying Bardo’s claim

that he was denied due process and effective assistance of

counsel under the federal and state constitutions because of

the cumulative effect of all errors.

Bardo’s Brief at 2-3 (reordered for ease of disposition).

In his first claim, Bardo asserts that trial counsel was ineffective for failing to seek

a change of venue based on allegedly inflammatory and pervasive pretrial publicity

about the facts of the case, including his confession and his history of child molestation.

Bardo’s Brief at 63. Bardo acknowledges that trial counsel did include a request for a

change of venue in his omnibus pretrial motion, but maintains that counsel was

ineffective because he withdrew the motion days later without obtaining a ruling from

the trial court. Id. at 69. In response, the Commonwealth relies on the voir dire record

to argue that none of the empanelled jurors had formed a fixed opinion as to Bardo’s

guilt or innocence and all had affirmed that they would base their decision solely on the

evidence presented in the courtroom. Commonwealth’s Brief at 34-35. The

Commonwealth also cites the court’s extensive instructions to the jury panel during voir

dire. Id. at 35 (quoting N.T. Voir Dire at 8-9). Finally, the Commonwealth cites excerpts

of the PCRA hearing in which lead trial counsel testified that the motion for a change of

venue had been withdrawn without prejudice to be refiled if seating a jury in Luzerne

County had proven impossible, and that the defense was satisfied with the process of

voir dire and found it to be fair. Id. at 36-37 (citing N.T. PCRA Hearing, 11/12/09, at

494-96).

[J -145A&B-2012] - 54

The PCRA court denied Bardo’s claim of trial counsel ineffectiveness for failing to

file a second motion for change of venue, holding that Bardo had failed to establish the

performance or prejudice prongs of the Strickland/Pierce standard. PCRA Court

Opinion at 9-13. As the PCRA court noted, this Court reviewed the law applicable to

requests to change of venue in Commonwealth v. Briggs, 12 A.3d 291 (Pa. 2011).

A change in venue is compelled whenever a trial court

concludes a fair and impartial jury cannot be selected from

the residents of the county where the crime occurred. As a

general rule, for a defendant to be entitled to a change of

venue because of pretrial publicity, he or she must show that

the publicity caused actual prejudice by preventing the

empanelling of an impartial jury. The mere existence of

pretrial publicity alone, however, does not constitute actual

prejudice. Simply because prospective jurors may have

heard about a case through media reports does not render

them incapable of jury service P .

* * * *

[T]he pivotal question in determining whether an impartial

jury may be selected is not whether prospective jurors have

knowledge of the crime being tried, or have even formed an

initial opinion based on the news coverage they had been

exposed to, but, rather, whether it is possible for those jurors

to set aside their impressions or preliminary opinions and

render a verdict solely based on the evidence presented to

them at trial.

Nevertheless, our Court has recognized that there are some

instances in which pretrial publicity can be so pervasive and

inflammatory a defendant does not have to prove actual

prejudice. Prejudice will be presumed whenever a

defendant demonstrates that the pretrial publicity: (1) was

sensational, inflammatory, and slanted toward conviction,

rather than factual and objective; (2) revealed the

defendant’s prior criminal record, if any, or referred to

confessions, admissions or reenactments of the crime by the

defendant; or (3) derived from official police or prosecutorial

[J -145A&B-2012] - 55

reports. However, if the defendant proves the existence of

one or more of these circumstances, a change of venue will

still not be compelled unless the defendant also

demonstrates that the presumptively prejudicial pretrial

publicity was so extensive, sustained, and pervasive that the

community must be deemed to have been saturated with it,

and that there was insufficient time between the publicity and

the trial for any prejudice to have dissipated. With respect to

the determination of whether there has been an adequate

cooling off period to dissipate the effect of presumptively

prejudicial media coverage . . . [a] court must investigate

what a panel of prospective jurors has said about its

exposure to the publicity in question. This is one indication

of whether the cooling period has been sufficient. Thus, in

determining the efficacy of the cooling period, a court will

consider the direct effects of publicity, something a

defendant need not allege or prove. . . . Normally, what

prospective jurors tell us about their ability to be impartial will

be a reliable guide to whether the publicity is still so fresh in

their minds that it has removed their ability to be objective.

The discretion of the trial judge is given wide latitude in this

area.

Id. at 313-14 (internal quotation marks and citations omitted); see id. at 313 (“trial court

is in the best position to assess the atmosphere of the community and to judge the

necessity of any requested change” in venue, and therefore trial court’s decision will not

be overturned absent an abuse of discretion) (citations omitted).

Here, the PCRA court assumed that the pretrial media coverage of Bardo’s

offenses and his case could have fallen within the definition of “presumptively

prejudicial” set forth in Briggs. PCRA Court Opinion at 11. However, it concluded that

the record did not show either that the presumptively prejudicial pretrial publicity was so

extensive, sustained, and pervasive as to saturate the community or that the cooling off

period had been insufficient. Id. (citing Briggs). Contrary to Bardo’s assertions, the fact

that nearly all of the venire members had heard something about his case did not

establish media saturation of the community, and the fact that the trial commenced

[J -145A&B-2012] - 56

somewhat less than five months after the crime did not establish that the cooling off

period was insufficient. Id. at 12. Accordingly, the PCRA court held that Bardo had

failed to show that trial counsel was ineffective for not filing a second change of venue

motion.

In addition, the PCRA court concluded that Bardo was not prejudiced by trial

counsel’s decision not to file a second change of venue motion. The PCRA court

explained its ruling as follows:

The media coverage was extensively addressed during voir

dire, and any potential jurors indicating a fixed opinion as a

result of media exposure were dismissed for cause. More

importantly, each empanelled juror affirmed the absence of

any fixed opinion as a result of media coverage and that

such would render their decision based solely upon the

evidence presented at trial. [deleting citation to numerous

portions of the voir dire transcript]. [As set forth in the trial

court’s] post-verdict Opinion issued on November 10, 1994[,]

. . . a review of the record reveals no prejudicial error during

voir dire. Counsel were given considerable latitude during

the process, and [all jurors] who [were] accepted indicated

they could and would give the defendant a fair and impartial

trial, they had no fixed opinions, and they could and would

decide the issues in this case based solely upon the

evidence presented in the courtroom. . . . [T]he trial judge is

in the best position to assess the prospective juror’s potential

bias and partiality, and the undersigned[25] determined that

each juror would be impartial. We also note that Bardo

failed to exhaust his peremptory challenges and, therefore,

could articulate no prejudice. Additionally, the jury was

emphatically instructed [that its] decision was to be rendered

“on the basis of the facts as they have been presented to

you by the evidence, and on absolutely nothing else.” N.T.

Trial[, 1/27/93, at] 630-31. Pennsylvania law presumes the

25

The Honorable Patrick J. Toole presided over both Bardo’s trial and his PCRA

hearing.

[J -145A&B-2012] - 57

jury has followed the trial court’s instructions. For these

reasons, we conclude Bardo has failed to establish prejudice

pursuant to the Strickland/Pierce test, and this claim is

denied.

Id. at 12-13 (footnote added).

The PCRA court’s findings and holding are supported by the record; accordingly,

we will not disturb the court’s denial of Bardo’s first ineffectiveness claim.

In his second issue, Bardo claims that trial counsel was ineffective for failing to

object when “[t]he prosecution improperly injected victim impact considerations into the

guilt and penalty phases of the trial by eliciting irrelevant evidence whose only purpose

was to create sympathy for the victim’s mother, Cathy Bardo.” Bardo’s Brief at 86.26

The evidence that Bardo challenges is the direct examination testimony of Ms. Bardo,

which, he argues, was not relevant and “was tantamount to victim impact testimony.”

Id. at 87-88. Claiming constitutional error, apparently based on an alleged denial of due

process, Bardo seeks a new trial. Id. at 86, 89. The challenged testimony, in its

entirety, is as follows.

Prosecutor: What did you do the rest of that day [September

4, 1992, the day of the murder]?

Witness: Looked for her [the victim].

Prosecutor: Where?

Witness: I looked for [the victim].

Prosecutor: Where?

Defense Counsel: Objection.

26

In this issue, Bardo also asserts claims of prosecutorial misconduct and trial court

error, but these iterations are waived as they could have been raised at trial or on direct

appeal and were not. 42 Pa.C.S. § 9544(b).

[J -145A&B-2012] - 58

Court: Overruled.

Defense Counsel: I don’t think it’s relevant.

Court: I’ll allow it.

Witness: All over. I went door to door, through Lee Park

and through Wilkes-Barre there, just went calling for her.

Prosecutor: You didn’t find her?

Witness: No.

Prosecutor: Can you tell the jury how you found out when

[the victim] was found?

Witness: The next morning I was coming -- I was going back

over to my mother’s after looking for her all night. I stopped

at a store for coffee and a pack of cigarettes. And some lady

come walking in the door, yelling that they found that baby

that was missing, they found her in the creek in a garbage

bag.

N.T. Trial, 1/25/93, at 112-13 (quoted in Bardo’s Brief at 87).

Although Bardo asserts -- inaccurately -- that counsel failed to object to the

above testimony, he subsequently acknowledges that counsel objected “to part of Cathy

Bardo’s prejudicial testimony based on relevance grounds, but did not raise with the trial

court the fact that her testimony was a de facto victim impact statement and did not

object to all of the offending testimony.” Bardo’s Brief at 88. The Commonwealth

argues, and the PCRA court held, that the challenged testimony did not constitute victim

impact evidence, but rather was part of the full picture and chronology of the crime, and

was properly admitted as such. Commonwealth’s Brief at 48-49; PCRA Court Opinion

at 16. Following review of the record, we conclude that the PCRA court did not err in

rejecting this ineffectiveness claim.

[J -145A&B-2012] - 59

Victim impact evidence is “designed to show each victim’s uniqueness as a

human being.” Commonwealth v. Flor, 998 A.2d 606, 633 (Pa. 2010) (quoting Payne v.

Tennessee, 501 U.S. 808, 823 (1991)); see also id. (“[V]ictim impact testimony conveys

to the jury that the decedent was a unique individual whose loss affects society.”)

(citation omitted). Victim impact evidence encompasses information concerning the

victim and the impact that the death of the victim has had on his or her family, which is

not otherwise relevant to the proceeding. Id. at 634; Commonwealth v. Rios, 920 A.2d

790, 806-07 (Pa. 2007). At the time of Bardo’s trial, victim impact evidence was

completely barred from criminal proceedings. Id. at 806.27

However, “a criminal defendant does not have the right to have all evidence

presented against him at trial sanitized of anything that could cause jurors to

sympathize with the victim or [her] family.” Id. at 807. Rather, the jury must be

presented with a full picture of the offenses charged in order to aid in the jury’s

understanding of the development and nature of those offenses. Id.; Commonwealth v.

Saranchak, 675 A.2d 268, 275 (Pa. 1996). Furthermore, rulings on the admission of

evidence are within the discretion of the trial court. Flor, 998 A.2d at 634.

Here, we agree with the PCRA court that the challenged testimony “is simply not

victim impact evidence.” PCRA Court Opinion at 15. The testimony did not concern the

victim or the impact of the victim's death on her family, and thus counsel cannot be

faulted for failing to object to it as victim impact evidence. Also, as the PCRA court

27

Prior to amendment of the Pennsylvania Sentencing Code in 1995, victim impact

evidence was deemed inadmissible at any stage of a capital trial. On October 11, 1995,

the General Assembly amended the Sentencing Code to permit the admission of victim

impact evidence during the penalty phase. See 42 Pa.C.S. § 9711(a)(2). See also

Commonwealth v. Means, 773 A.2d 143, 147-53 (Pa. 2001) (Opinion Announcing

Judgment of Court) (describing background and history). As Bardo’s trial took place in

1993, no victim impact evidence was permitted, either in the guilt or penalty phase.

[J -145A&B-2012] - 60

explained, the testimony was “part of the chronology of the crime charged in this case.”

Id. The record supports this additional point. Just before the challenged portion of Ms.

Bardo’s testimony, she had testified that, when she learned that her daughter was

missing, she had run to the nearby creek, crying and yelling her daughter’s name. As

she was running through the creek, Bardo had grabbed her shoulder, knocked her

down, and told her to stop looking because she would not find her daughter there. N.T.

Trial, 1/25/93, at 109-10. The victim’s body was later found in that creek, and Ms.

Bardo related how and when she had learned of that discovery. Id. at 111-13. Ms.

Bardo’s testimony provided the jury with an account of Bardo’s actions toward her after

the murder, and thus could help the jury to develop a more complete understanding of

the offenses. We therefore agree with the PCRA court that there is no merit to Bardo's

assertion that trial counsel was required to raise a victim impact objection to Ms.

Bardo’s testimony.

In his third claim, Bardo asserts that counsel was ineffective for failing to

investigate and present a voluntary intoxication defense. Bardo asserts that trial

counsel should have proffered expert testimony to establish that Bardo was legally

intoxicated at the time of the offenses, and therefore his judgment and impulse control

were impaired, suggesting that he was not able to form the specific intent to kill.

Bardo’s Brief at 51, 53. The Commonwealth maintains that there was no evidence

whatsoever, and thus no basis for a finding, that, at the time of the offenses, Bardo was

intoxicated to the point of losing his faculties and sensibilities, which is the relevant

standard. Commonwealth’s Second Brief at 11.

After summarizing and analyzing the PCRA testimony of Bardo’s two experts on

the subject of voluntary intoxication, the PCRA court declined to grant relief. Bardo’s

experts estimated Bardo’s blood alcohol level at the time of the offenses to have been

[J -145A&B-2012] - 61

.10% or .09%. The PCRA court noted that the testimony suggested that an individual

with this blood alcohol level would “typically exhibit diminished judgment, inhibition,

coordination, and reaction . . . [and] would typically have diminished impulse control and

a heightened need for immediate gratification.” PCRA Court Opinion at 8-9

(summarizing N.T. PCRA Hearing, 11/9/09 at 212-13, and 11/10/09 at 287) (internal

quotation marks omitted). Nevertheless, the PCRA court found that “the Trial Record

and the PCRA Record are absolutely devoid of any evidence sufficient to establish

Bardo was so overwhelmed or overpowered by alcohol to the point of losing his

faculties as required to establish voluntary intoxication.” Id. at 9 (internal quotation

marks and citation omitted). Accordingly, the PCRA court held that Bardo had “utterly

failed” to establish ineffective assistance under the Strickland/Pierce test. PCRA Court

Opinion at 9.

The PCRA court’s ruling is supported by the record and is free of legal error.

This Court has previously made clear that a defense of diminished capacity grounded in

voluntary intoxication is a very limited defense, which does not exculpate the defendant

from criminal liability, but, if successfully advanced, mitigates first-degree murder to

third-degree murder. Commonwealth v. Hutchinson, 25 A.3d 277, 312 (Pa. 2011). The

mere fact of intoxication is not a defense; rather, the defendant must prove that his

cognitive abilities of deliberation and premeditation were so compromised by voluntary

intoxication that he was unable to formulate the specific intent to kill. Id. In other words,

to prove a voluntary intoxication defense, the defendant must show that he was

“overwhelmed to the point of losing his faculties and sensibilities.” Id. (quoting

Commonwealth v. Blakeney, 946 A.2d 645, 653 (Pa. 2008)). Evidence that the

defendant lacked the ability to control his actions or acted impulsively is irrelevant to

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specific intent to kill, and thus does not constitute support of a voluntary intoxication

defense. Id.

As the PCRA court determined, there was no evidence presented at trial or at the

PCRA hearing that, at the time of his offenses, Bardo was overwhelmed by intoxication

to the point of losing his faculties and sensibilities. Indeed, the evidence was uniformly

to the contrary. One of Bardo’s own expert witnesses, Dr. Blumberg, testified at the

PCRA hearing that, at the time of the offenses, Bardo “did not reach the point where he

was so impaired that he couldn’t formulate an intent to engage in this activity.” N.T.

PCRA Hearing, 11/9/09, at 93-94; see also id. at 182 (opining that Bardo’s alcohol

consumption on the night of the offenses “did disinhibit him and impair[ed] his

behavioral controls”). Another of Bardo’s experts, Dr. Lage, a pharmacologist and

toxicologist, opined that with a blood alcohol level of .10%, which was his estimate of

Bardo’s blood alcohol level at the time of the offenses, an individual would have

impaired judgment and a loss “to some extent” of inhibitions. Id. at 213. Thus, the

testimony of Bardo’s own experts did not establish that, at the time of the offenses,

Bardo was unable to formulate the specific intent to kill because he was overwhelmed to

the point of losing his faculties and sensibilities by voluntary ingestion of alcohol. The

PCRA court’s rejection on the merits of Bardo’s claim of counsel ineffectiveness for not

pursuing a defense of voluntary intoxication is supported by the record; accordingly, the

Court will not disturb it.

Bardo’s fourth, fifth and sixth issues all involve claims limited to the penalty

phase of his initial trial. Given that the PCRA court’s grant of penalty phase relief

premised upon counsel ineffectiveness relating to the initial sentencing proceeding is

affirmed by operation of law, due to this Court’s 3-3 deadlock, we need not, and do not,

pass upon these additional sentencing claims.

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Finally, in his seventh and last issue, which comprises four sentences, Bardo

asserts that the cumulative effect of all the alleged errors constituted a denial of due

process, entitling him to a new trial. Bardo’s Brief at 90. As we have previously held,

no number of claims that have been denied because of lack of merit can collectively

warrant relief. Commonwealth v. Spotz, 47 A.3d 63, 129 (Pa. 2012). As Bardo has not

established that any of the guilt phase claims in his appeal are meritorious, he is not

entitled to relief.

III. Conclusion

The grant of penalty phase relief, at issue in the Commonwealth’s appeal at No.

651 CAP, is affirmed by operation of law, the Court being evenly divided. The denial of

guilt phase relief, at issue in Bardo’s appeal at No. 650 CAP, is affirmed for the reasons

stated in Part II of this per curiam Opinion.

Jurisdiction relinquished.

The grant of penalty phase relief, at issue in the Commonwealth’s appeal at No.

651 CAP, is affirmed by operation of law, the Court being evenly divided.

The denial of guilt phase relief, at issue in Michael Bardo’s appeal at No. 650

CAP, is affirmed for the reasons stated in Part II of the Per Curiam Opinion, which is

joined by Mr. Chief Justice Castille and Messrs. Justice Saylor, Eakin, Baer and

Stevens.

The Per Curiam Opinion is an Opinion in Support of Reversal as to Part I,

addressing Docket No. 651 CAP, and is joined by Mr. Chief Justice Castille and Messrs.

Justice Eakin and Stevens.

Mr. Justice Saylor files a Concurring Opinion and Opinion in Support of

Affirmance on Docket No. 651 CAP.

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Mr. Justice Baer files a Concurring Opinion and Opinion in Support of Affirmance

on Docket No. 651 CAP.

Madame Justice Todd files a Concurring Opinion and Opinion in Support of

Affirmance on Docket No. 651 CAP.

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