Commonwealth v. Mason, L., Aplt

[J-1-2015]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

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

COMMONWEALTH OF PENNSYLVANIA, : No. 676 CAP

:

Appellee : Appeal from the Order entered on

: 01/03/2013 in the Court of Common Pleas,

: Criminal Division of Philadelphia County at

v. : No. CP-51-CR-0700431-1994

:

: SUBMITTED: January 5, 2015

LENWOOD MASON, :

:

Appellant :

OPINION

MR. JUSTICE STEVENS DECIDED: December 29, 2015

This is a collateral capital appeal from an order of the Court of Common Pleas of

Philadelphia County dismissing Appellant Lenwood Mason’s first petition for relief under

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.1

Appellant’s convictions arose from the June 19, 1994, stabbing death of Iona

Jeffries. The underlying facts as adduced at trial were enunciated by this Court in

affirming Appellant’s conviction and sentence on direct appeal:

[O]n March 31, 1994, police were called to the 3800 block of Clearfield

Street in Philadelphia. Officer Terry Brown observed Appellant walking on

Clearfield Street, with Iona Jeffries close to his side. Noting a frightened

look on Ms. Jeffries' face, the officer approached her and asked if she was

1 This Court has exclusive jurisdiction over appeals from the grant or denial of

post-conviction relief in death penalty cases. 42 Pa.C.S. § 9546(d).

all right. The officer noticed bruises on Ms. Jeffries' forehead, shoulder,

neck and mouth. Although Appellant told the officer that Ms. Jeffries had

been attacked by several other women, Ms. Jeffries informed the officer that

Appellant had actually caused her injuries. Ms. Jeffries explained to the

officer that she was reluctant to press charges against Appellant, as she

feared he would kill her. Based on his [sic] own observations and Ms.

Jeffries' statements, however, the officer placed Appellant under arrest.

Approximately three months later, on the evening of June 18, 1994,

Ms. Jeffries was at a bar, Cadillac Slim's, with Appellant and several of her

friends. Appellant had been released from prison two days earlier, on June

16, 1994. When Ms. Jeffries and her friends decided to leave Cadillac

Slim's and go to another club, Ms. Jeffries asked that a male acquaintance

drive Appellant home, as she did not want him to accompany her to the

club. Upset by Ms. Jeffries' plans to exclude him, Appellant yelled, “You

want it like that?” and ran out of the bar.

At approximately 9:30 the following morning, Ms. Jeffries' mother,

Mrs. Wisteria Jeffries, was at her home when she heard Appellant banging

on the door. As Wisteria Jeffries approached the door, she saw

Appellant's hand protruding through the screen door. When Wisteria

Jeffries asked Appellant what he wanted, he replied that he needed to

speak with Ms. Jeffries. Wisteria Jeffries explained that Ms. Jeffries was

asleep. After Appellant insisted that he speak with Ms. Jeffries, Wisteria

Jeffries told Appellant to wait outside while she got Ms. Jeffries. She

locked the door and went upstairs to Ms. Jeffries' room, where Ms. Jeffries

was sleeping on a bed with her then three year-old son, Anthony. Ms.

Jeffries refused to come downstairs. Wisteria Jeffries returned to the front

door and told Appellant that Ms. Jeffries was sleeping and that he would

have to wait to speak with her. Appellant then forced his way into the

house, pushed past Wisteria Jeffries, and ran up the stairs. Wisteria

Jeffries immediately called the police.

Wisteria Jeffries retrieved a knife from the kitchen and began to head

upstairs, when she saw Appellant descending the steps. Appellant stated

to Wisteria Jeffries, “I got her now.” At that point, Wisteria Jeffries

attempted to stab Appellant, but he pushed her aside and ran outside,

where a neighbor, Greg Bell, saw Appellant placing what appeared to be a

knife into the waistband of his pants. Wisteria Jeffries ran upstairs to Ms.

Jeffries' bedroom and found Ms. Jeffries bleeding profusely from multiple

stab wounds. Police and rescue units arrived and Ms. Jeffries was taken

to the hospital, where she was pronounced dead.[2] Later that same day,

Appellant surrendered to the police and was charged with murder in the

first-degree, burglary and possessing an instrument of crime.

2 According to the testimony of the chief medical examiner for Philadelphia County, Ms.

Jeffries' death was caused by eighteen stab wounds to her body, including wounds to her

head, neck, chest, back, abdomen, arm, groin and leg.

[J-1-2015] - 2

Commonwealth v. Mason, 559 Pa. 500, 507-08, 741 A.2d 708, 712 (1999).

Attorney Thomas W. Moore, Jr., Esq., undertook Appellant’s representation, hiring

an investigator, interviewing Appellant and his mother, and retaining Dr. Allan Tepper, an

expert in the field of forensic and clinical psychology, to perform a psychological

evaluation of Appellant and to provide testimony during the guilt and sentencing phases

of trial. As part of his evaluation, Dr. Tepper conducted a clinical interview of Appellant,

administered intelligence tests, interviewed Appellant’s mother, and reviewed police

discovery materials along with Philadelphia School District records and past drug

treatment records. Letter from Dr. Allan Tepper to trial counsel, dated 3/28/95;

Declaration and Affidavit of Dr. Allan Tepper, dated 10/29/07, filed 11/1/07.

A jury trial before the Honorable C. Darnell Jones was conducted in February

1996. As we noted on direct appeal, the trial included the following testimony:

Appellant testified on his own behalf, claiming that he had been drinking

and doing drugs, including PCP for the first time, at the bar on the night

before the murder. He testified that after he smoked the PCP, everything

went blurry and that he did not recall leaving Cadillac Slim's or going to Ms.

Jeffries' house on the morning of her murder. He further maintained that

he did not regain his senses again until late in the evening on the day of the

murder, when he was already in jail. Appellant's mother and brother [Kevin

Mason] also testified in Appellant's defense. Essentially, they claimed that

when they saw Appellant on the day of the murder, he was under the

influence of drugs and that his condition was unlike any “high” that they had

ever seen him experience.

Mason, 559 Pa. at 509, 741 A.2d at 713. On February 15, 1996, the jury found Appellant

guilty of first-degree murder, burglary, and possessing an instrument of crime. At the

penalty phase of trial, Judge Jones instructed the jury with regard to three aggravating

[J-1-2015] - 3

circumstances and four mitigating circumstances. 3 All the evidence presented on

Appellant’s behalf during the guilt phase of trial was incorporated during the penalty

phase, and Appellant’s mother, his uncle, Larry Lawhorn, and Dr. Tepper provided

additional testimony to support the mitigating circumstances.4 Following the penalty

phase, the jury returned a verdict of death after finding two aggravating circumstances

and no mitigating circumstances.5 Judge Jones formally imposed the death sentence on

February 20, 1996.

Following Appellant’s conviction and sentence, trial counsel was replaced by

Gerald Stein, Esq., who filed a direct appeal on Appellant’s behalf. Appellant initially

challenged the sufficiency of the evidence to support the jury’s verdict of first-degree

murder on the grounds that (1) there was insufficient evidence to establish that Appellant

3 The aggravating circumstances were that “[t]he defendant committed a killing while in

the perpetration of a felony,” 42 Pa.C.S. § 9711(d)(6); “[i]n the commission of the offense

the defendant knowingly created a grave risk of death to another person in addition to the

victim of the offense,” Id. § 9711(d)(7); and “[t]he defendant has a significant history of

felony convictions involving the use or threat of violence to the person.” Id. § 9711(d)(9).

N.T. 2/16/96 at 130.

The mitigating circumstances were that “[t]he defendant was under the influence of

extreme mental or emotional disturbance,” 42 Pa.C.S. § 9711(e)(2), “[t]he capacity of the

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

requirements of law was substantially impaired,” Id. § 9711(e)(3), “[t]he age of the

defendant at the time of the crime,” Id. § 9711(e)(4), and “[a]ny other evidence of

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

his offense.” Id. § 9711(e)(8). N.T. 2/16/96 at 131-132.

4 Although Dr. Tepper had been retained by counsel to provide testimony during both the

guilt and sentencing phases of trial, following his evaluation of Appellant he had informed

trial counsel that he could not provide evidence in support of any guilt phase defenses,

thus trial counsel only presented Dr. Tepper’s testimony during the penalty phase. N.T.

2/17/96 at 12-13.

5 The jury found that Appellant committed the murder while in the commission of a felony

and that he had a significant history of committing crimes of violence.

[J-1-2015] - 4

acted with the necessary premeditation; (2) the jury erred in failing to find that Appellant

was acting under the “heat of passion” when he fatally stabbed Ms. Jeffries; and (3) the

jury erred in finding a specific intent to kill because Appellant presented evidence to show

that he was intoxicated at the time of the killing. See Mason, 559 Pa. at 509-511, 741

A.2d at 713-714. This Court found no merit to Appellant’s sufficiency claims,

determining that: (1) the circumstances of the case did not, as a matter of law, foreclose a

finding of premeditation; (2) the record did not support a heat of passion claim since

Appellant claimed that he was so intoxicated at the time of the stabbing that he could not

remember whether words were exchanged which would give rise to a heat of passion

defense, there was no evidence that the victim did anything immediately before the

stabbing to provoke Appellant, and the victim’s son testified that his mother was just lying

on the bed when Appellant came into the room and began stabbing her; and (3) it was

well within the power of the jury to make a credibility determination and disbelieve the

evidence presented by Appellant to establish that intoxication prevented him from forming

a specific intent to kill. Id., 559 Pa. at 510-512, 741 A.2d at 713-714.6

Appellant’s direct appeal additionally alleged that trial counsel rendered ineffective

assistance during the guilt phase of Appellant’s trial by (1) failing to properly consult with

Appellant prior to trial; (2) failing to conduct an adequate pre-trial investigation, which

would have revealed corroborative evidence that Appellant and the victim reconciled and

spent time together in the days immediately before the murder; and (3) referring to the

stabbing as a heinous crime during his guilt phase closing argument. Id., 559 Pa. at 513,

6 In addition to disputing the sufficiency of the evidence, Appellant also unsuccessfully

argued that the verdict of first-degree murder was against the weight of the evidence.

[J-1-2015] - 5

515, 518, 741 A.2d at 715, 716, 718. This Court determined, however, that Appellant

had failed to show that counsel was ineffective. Specifically, we explained that the

amount of pre-trial consultation is not a legitimate basis for inferring the total extent and

adequacy of counsel's pre-trial preparation, and we further noted that Appellant had failed

to allege any issues that his counsel should have raised or any beneficial information that

his counsel would have discovered had further pre-trial consultations been held. Id., 559

Pa. at 514, 741 A.2d at 715 Further, regarding the adequacy of counsel’s pretrial

investigation, we found that the jury was aware of the apparent reconciliation through the

testimony of several witnesses, including the victim’s mother herself; thus, the evidence

allegedly missed was merely cumulative, and, regardless, would not have precluded the

first-degree murder conviction. Id., 559 Pa. at 515-516, 741 A.2d at 716-717. Lastly, as

to counsel’s guilt phase closing argument, this Court determined the record reflected that

the challenged comment was merely a reminder to the jury that evidence, not emotion,

should control the outcome of the case, and, when read in context, the comment was

clearly part of counsel's strategy to persuade the jury that despite the crime's

gruesomeness the evidence showed Appellant was too intoxicated to form the specific

intent necessary for a first-degree murder conviction. Id., 559 Pa. at 518-519, 741 A.2d

at 718.

In addition to leveling guilt phase ineffectiveness claims, Appellant also asserted

on direct appeal that he was entitled to a new trial based on after discovered evidence

consisting of a letter written by the victim to Appellant while he was imprisoned and a

picture of the victim visiting Appellant in prison, which, Appellant asserted, demonstrated

their close and intimate relationship. Id., 559 Pa. at 517, 741 A.2d at 717. Again, this

[J-1-2015] - 6

Court determined that no relief was due since Appellant failed to meet any of the

requirements for the grant of a new trial based on after-discovered evidence. Id.

Appellant’s sentence was thus affirmed by this Court on November 24, 1999, and it

became final on October 2, 2000, when the United States Supreme Court denied

certiorari. Appellant’s execution was subsequently scheduled for March 8, 2001, but

was stayed following the filing of a timely pro se PCRA petition on February 13, 2001.7

Following several extensions of time, Attorney Patrick Egan filed an amended petition on

Appellant’s behalf on January 25, 2002, raising thirteen claims for relief and asserting

entitlement to an evidentiary hearing and discovery.8 In addition to the January 25, 2002

amended PCRA petition, Appellant submitted a variety of additional documents including:

a “Motion to Immediately Re-Sentence Petitioner to Life Imprisonment” pursuant to Atkins

v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) and an accompanying

“Supplemental Amended PCRA Petition”;9 a “Supplement and Response in Opposition

7 Pursuant to Section 9545 of the PCRA, “[a]ny petition under this subchapter, including a

second or subsequent petition, shall be filed within one year of the date the judgment

becomes final L .” 42 Pa.C.S. § 9545(b)(1).

8 The January 25, 2002 petition and several subsequent pleadings were captioned as

“Petition[s] for Habeas Corpus Relief Pursuant to Article I, Section 14 of the Pennsylvania

Constitution and Statutory Post Conviction Relief Under 42 Pa.C.S. § 9542 et seq. and

Consolidated Memorandum of Law.” Notwithstanding Appellant's captioning, this matter

has been properly treated as a PCRA petition. See Commonwealth v. Breakiron, 566

Pa. 323, 327, 781 A.2d 94, 96 (2001) (“As Appellant alleges violations of the constitution

and of law which undermine the truth-determining process, his claims are cognizable only

under the PCRA and the writ of habeas corpus is unavailable.”).

9 Appellant’s supplemental amended PCRA petition asserted that he is “[intellectually

disabled]” and is thus exempt from execution in accordance with Atkins. The term

“mental retardation” had been widely accepted by the medical community and was used

in Atkins. The High Court has since approved the replacement of “mental retardation”

with the phrase “intellectual disability” to describe the identical diagnosis. Hall v. Florida,

___ U.S. ___, 134 S.Ct. 1986, 1990, 188 L.Ed.2d 1007 (2014) (citing American

(continuedL)

[J-1-2015] - 7

to the Commonwealth’s Motion to Dismiss and Reply in Support of His Motion for Relief

Pursuant to Atkins v. Virginia;” and two “Supplemental” PCRA petitions. In response, the

Commonwealth filed several motions to dismiss, asserting that the majority of Appellant’s

claims were previously litigated or waived, or, if reviewable, meritless. Additionally, the

Commonwealth assailed as boilerplate Appellant’s allegations of appellate counsel’s

ineffectiveness, asserting that such claims are insufficient to overcome waiver.

Over the course of an eleven-year period, the parties’ pleadings, along with

various discovery requests and numerous ancillary motions, were heard first by Judge

Jones and then by the Honorable M. Teresa Sarmina. Judge Jones scheduled an

evidentiary hearing on several of Appellant’s claims, but before the hearing occurred,

Judge Jones was appointed to the Federal District Court and Appellant’s case was

transferred to Judge Sarmina. The evidentiary hearing was eventually held in October

2011, and was limited to Appellant’s penalty phase issues. During the five day hearing,

testimony on behalf of Appellant was elicited from Dr. Robert L. Sadoff, an expert in

forensic psychiatry; Dr. Gerald Cooke, an expert in forensic and neuropsychology; Dr.

Richard Restak, an expert in neurology; Dr. Allan Tepper, Appellant’s trial expert;

Attorney Thomas Moore, Appellant’s trial counsel; Attorney Gerald Stein, Appellant’s

direct appeal counsel; Thelma Mason, Appellant’s mother; Larry Lawhorn, Appellant’s

(Lcontinued)

Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 33 (5th ed.

2013) (DSM–5)); American Association on Intellectual and Developmental Disabilities,

Intellectual Disability: Definition, Classification, and Systems of Support 3 (11th ed. 2010)

(AAIDD Manual)). While we note that this case was litigated before Hall was decided,

and the parties and their experts use both phrases, we opt to use the more recent

nomenclature “intellectually disabled” unless the former term is integral to a quotation

reproduced herein.

[J-1-2015] - 8

uncle; and Brian Mason, Appellant’s brother. The Commonwealth, in turn, elicited the

testimony of Dr. Barry Gordon, an expert in behavioral neurology with special expertise in

neuropsychology.

At the close of testimony, the parties were directed to file post-hearing submissions

addressing the penalty phase issues that had been the subject of the evidentiary hearing.

N.T. 10/28/11 at 52. At that time it became clear that Appellant was concerned he had

guilt phase claims that remained outstanding, as counsel expressed uncertainty as to

which claims had been disposed of by Judge Jones and which claims were unresolved.

Id. at 50-51. Appellant’s counsel indicated to Judge Sarmina that he would provide the

court with the status of Appellant’s issues, and Judge Sarmina requested that, in addition

to addressing the penalty phase mitigation issues, the parties’ post-hearing submissions

also indicate the issues upon which Judge Jones definitively ruled and what issues were

“still open.” Id. at 51-52. Judge Sarmina then set aside February 13, 2012, “for

argument on this whole case, we will be able to see just where everything is at. And

what issues might be still left. . . .” Id. at 54-55.

The parties filed the requested post-hearing submissions on February 6, 2012.

Appellant initially argued to the court that trial counsel failed to fully investigate

Appellant’s background and provide such background information to his expert.

Appellant’s Post-Hearing Memorandum at 3. 10 Citing the affidavit and testimony of

10 Appellant specifically faulted trial counsel for failing to obtain the following records:

(1) “Complete Philadelphia School Records,” which Appellant asserted revealed the

extent of his learning disability. Id. at 7 (citing PCRA exh. C-56, 60, 62, 69, 72, 91);

(2) “Albert Einstein Medical Center Records,” which Appellant asserted revealed that he

was treated for a drug overdose as a teenager and had a history of cocaine abuse. Id. at

8 (citing PCRA exh. C-166);

(continuedL)

[J-1-2015] - 9

Thelma Mason and the affidavits of Brian Mason and MaryAnn Mason, Appellant also

argued that trial counsel failed to conduct penalty hearing-focused interviews with

Appellant’s family, which Appellant suggested would have revealed (1) Appellant’s early

developmental problems and his failure to meet expected standards, (2) Appellant’s

hyperactivity and accident prone nature, (3) the use of corporal punishment in Appellant’s

household, (4) Appellant’s difficulty adjusting in a predominantly white school and white

neighborhood, (5) Appellant’s drug use as a teen and subsequent addiction that caused

paranoid hallucinations, and (6) Appellant’s drug use on the night before the murder. Id.

at 9-13. Appellant further maintained that trial counsel failed to investigate Appellant’s

mental health deficiencies, and, despite Dr. Tepper’s pre-trial request, failed to provide

additional school records, records of past psychiatric treatment and alcohol and drug

abuse treatment, and criminal records, which, Appellant asserted, would have prompted

Dr. Tepper to recommended neuropsychological testing that would have revealed

Appellant suffered from organic brain damage and enabled Dr. Tepper to opine on the

presence of statutory and non-statutory mental health mitigation. In support of this

(Lcontinued)

(3) “Philadelphia Prison System Records,” which Appellant asserted revealed “important

background data,” possible suicide attempts, head trauma, and heavy drug use. Id.

(citing PCRA exh. C-218, 226, 230, 257, 263, 269, 276, 281, 282, 287, 288);

(4) The [March 11, 1981] Glen Mills Schools Diagnostic Report, which Appellant asserted

revealed that he had taken IQ tests which revealed scores of 71 and 83, that he was

performing well below his grade level in reading and math, and that he daydreamed

excessively and had been described as “spacey.” Id. (citing PCRA exh. C-329, 331,

333, 334); and

(5) “Pre-sentence Reports and Mental Health Evaluations [dated 12/3/85, 12/10/90,

4/17/91 and 6/29/94], which Appellant asserted revealed a pattern of adjustment

problems, self-reported history of impulsivity under stress, and schizoid personality

disorder diagnosis. Id. at 9 (citing PCRA exh. C-337, 338, 363, 367, 368, 390, 391).

[J-1-2015] - 10

argument, Appellant cited to the testimony of Doctors Cooke, Sadoff and Restak, who,

according to Appellant, had the benefit of Appellant’s full records and offered opinions

that Appellant suffered from a variety of cognitive conditions that affected his behavior

and would have altered the jury’s determination as to the mitigating factors set forth in

Sections 9711(e)(2) and (3). Id. at 15-21.11

In addition to raising claims of counsels’ ineffectiveness, Appellant also argued to

the court that the prosecutor’s guilt phase closing arguments improperly urged the jury to

convict Appellant because he had no remorse or sympathy for the victim. Id. at 40 (citing

N.T. 2/14/96 at 99-100).12 Appellant acknowledged that his trial counsel objected to the

prosecutor’s comment and the objection was sustained, but Appellant contended that trial

counsel rendered ineffective assistance for failing additionally to request a curative jury

instruction and that appellate counsel rendered ineffective assistance for failing to raise

trial counsel’s error. Id. at 41.

The Commonwealth countered that trial counsel properly hired and relied on the

opinions of Dr. Tepper, who reviewed a majority of the records that counsel allegedly

failed to present, and, following that review, did not recommend any additional testing.

Commonwealth’s post hearing brief at 2-3. The Commonwealth further perceived that

the information contained in the “additional” records was nothing more than cumulative of

information presented to the jury from other sources. Id. at 6 The Commonwealth

11 In addition to raising these instances of trial counsel’s alleged ineffectiveness,

Appellant argued that appellate counsel erred in failing to argue trial counsel’s deficient

performance on direct appeal. Post-Hearing Memorandum of Law, filed 2/6/12 at 36-39.

12 Appellant’s counsel later explained that he chose not to take evidence on the improper

closing argument issue during the evidentiary hearing, believing it unnecessary because

the issue involved legal argument only. N.T. 2/13/12 at 7.

[J-1-2015] - 11

insisted that even if the jury had been presented with the opinions of the experts retained

by Appellant at the PCRA stage, the “mild” impairment from which they believed Appellant

to suffer would not have compelled a different mitigation/aggravation conclusion. Id. at

7-13. Similarly, the Commonwealth disputed the contention that ineffectiveness could

be found based on counsel’s tactics with regard to family testimony. Id. at 14-16.

Oral argument occurred before Judge Sarmina on February 13, 2012. Appellant

immediately complained to the court that his counsel had not addressed the outstanding

guilt phase issues, to which Appellant’s counsel responded that he didn’t include them in

the post-hearing memorandum submitted on Appellant’s behalf because the penalty

phase issues addressed at the hearing were extensive and “it certainly did not seem the

appropriate time to do so.” N.T. 2/13/12 at 4-5. Appellant’s counsel maintained that the

issues “have not been waived,” and indicated his intention to address them “at the

appropriate time.” Id. at 5. Before proceeding to hear argument on the penalty phase

issues, Judge Sarmina again requested that the parties indicate what issues were before

the court. Id. at 8.13

Following additional oral argument on June 22, 2012, Judge Sarmina stated on the

record that Appellant had not met the prejudice prong required to achieve relief on

Appellant’s claim that trial counsel rendered ineffective assistance at the penalty phase of

trial. N.T. 6/22/12 at 19. In so finding, Judge Sarmina indicated that she had credited

the testimony of Dr. Gordon and had concluded “on balance the prejudice prong has not

13 The parties filed additional post-hearing submissions, but they appear to be in

response to the court’s request that they address how the court should reweigh the

aggravating and mitigating evidence, and do not address what other issue remained

outstanding. Post-hearing submissions filed 6/19/12.

[J-1-2015] - 12

been met.” Id. Following this determination, Appellant’s counsel again expressed his

uncertainty regarding what other issues remained outstanding and requested further

opportunity to brief the court. Id. at 22-23. Acknowledging the necessity of a formal

ruling on whatever claims remained undecided, Judge Sarmina permitted additional

briefing. Id. at 23-24.

On August 28, 2012, Appellant filed a “Motion for Reconsideration and

Supplemental Post-Hearing Memorandum of Law,” indicating that despite “thoroughly

reviewing the record, it is not entirely clear which claims Judge Jones had previously ruled

on.” Motion for Reconsideration and Supplemental Post-Hearing Memorandum of Law

filed 8/28/12 at 1. The motion then sought reconsideration of Judge Sarmina’s

determination that Appellant has not proven trial counsel’s ineffectiveness with regard to

the penalty phase claims and argued two additional guilt phase claims that: (1) the trial

court failed to instruct the jury that “life imprisonment” means life without the possibility of

parole and counsel was ineffective for failing to seek such an instruction, and (2) trial

counsel was ineffective for failing to present expert testimony and additional evidence in

support of heat of passion and voluntary intoxication defenses. Id. at 10, 14. Judge

Sarmina heard final oral argument on January 3, 2013, and denied Appellant

post-conviction relief. Appellant filed a timely appeal of the PCRA court’s denial of

relief.14

14 Appellant complied with the court’s directive to file a Pa.R.A.P. 1925(b) concise

statement of matters complained of on appeal, alerting the court to twenty four allegations

of error. Pa.R.A.P. 1925(b) Statement filed 2/20/13. Judge Sarmina filed a responsive

Rule 1925(a) opinion.

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“Our review of a PCRA court's decision is limited to examining whether the PCRA

court's findings of fact are supported by the record, and whether its conclusions of law are

free from legal error.” Commonwealth v. Hanible, 612 Pa. 183, 204, 30 A.3d 426, 438

(2011) (citing Commonwealth v. Colavita, 606 Pa. 1, 21, 993 A.2d 874, 886 (2010)). We

view the findings of the PCRA court and the evidence of record in a light most favorable to

the prevailing party. Id. With respect to the PCRA court’s decision to deny a request for

an evidentiary hearing, or to hold a limited evidentiary hearing, such a decision is within

the discretion of the PCRA court and will not be overturned absent an abuse of discretion.

See Commonwealth v. Reid, ___ Pa. ___, 99 A.3d 470, 485 (2014). “The PCRA court’s

credibility determinations, when supported by the record, are binding on this Court;

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

Commonwealth v. Roney, 622 Pa. 1, 16, 79 A.3d 595, 603 (2013). The denial of an

appellant's request for discovery is reviewed for abuse of discretion. Id.

To be entitled to PCRA relief, a petitioner bears the burden of establishing, by a

preponderance of the evidence, that his conviction or sentence resulted from one or more

of the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2), which 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). Further, the

petitioner must show that the allegation of error has not been previously litigated or

waived pursuant to Pa.C.S. § 9543(a)(3); See Commonwealth v. Baumhammers, 625 Pa.

354, 364, 92 A.3d 708, 714 (2014).

An issue has been previously litigated if “the highest appellate court in

which the petitioner could have had review as a matter of right has ruled on

[J-1-2015] - 14

the merits of the issue.” A PCRA claim is waived “if the petitioner could

have raised it but failed to do so before trial, at trial, during unitary review, on

appeal or in a prior state postconviction proceeding.”

Commonwealth v. Martin, 607 Pa. 165, 176, 5 A.3d 177, 183 (2010) (citing 42 Pa.C.S. §

9544(a)(2), (b)).

The majority of Appellant’s claims assert that his trial and appellate counsel

provided ineffective assistance. Counsel is presumed effective, and in order to

overcome that presumption a PCRA petitioner must plead and prove that: (1) the legal

claim underlying the ineffectiveness claim has arguable merit; (2) counsel's action or

inaction lacked any reasonable basis designed to effectuate petitioner’s interest; and (3)

counsel's action or inaction resulted in prejudice to petitioner. Commonwealth v.

Fletcher, 604 Pa. 493, 515, 986 A.2d 759, 772 (2009); Commonwealth v. Natividad, 595

Pa. 188, 207, 938 A.2d 310, 321 (2007).15 “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.’” Commonwealth v. Bardo, ___Pa.___, 105 A.3d

678, 684 (2014) (citing Roney, 622 Pa. at 17, 79 A.3d at 604)). “Where matters of

strategy and tactics are concerned, ‘[a] finding that a chosen strategy lacked a

reasonable basis is not warranted unless it can be concluded that an alternative not

chosen offered a potential for success substantially greater than the course actually

pursued.’” Commonwealth v. Spotz, 624 Pa. 4, 33, 84 A.3d 294, 311-12 (2014) (citing

15 “The three-factor approach utilized in Pennsylvania derives from our application in

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987), of the ‘performance and

prejudice’ test articulated by the United States Supreme Court in Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Commonwealth v.

Dennis, 597 Pa. 159, 174, 950 A.2d 945, 954 (2008).

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Colavita, 606 Pa. at 21, 993 A.2d at 887). To demonstrate prejudice, a petitioner must

show that there is a reasonable probability that, but for counsel's actions or inactions, the

result of the proceeding would have been different. See Strickland, 466 U.S. at 694;

Commonwealth v. Laird, ___ Pa ___,.119 A.3d 972, 978 (2015); Commonwealth v.

Tedford, 598 Pa. 639, 659, 960 A.2d 1, 12 (2008). Failure to establish any prong of the

Strickland/Pierce test will defeat an ineffectiveness claim. Commonwealth v. Walker,

613 Pa. 601, 612, 36 A.3d 1, 7 (2011).

Because Appellant was represented by new counsel on direct appeal and that

appeal predated Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), Appellant

was required to raise allegations of trial counsel’s ineffectiveness at that time, on pain of

waiver. See 42 Pa.C.S. § 9544(b); Fletcher, 604 Pa. at 515, 986 A.2d at 772-73;

Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687, 695 n. 6 (1977).16 Although

Appellant did raise several allegations of trial counsel’s ineffectiveness on direct appeal,

the issues regarding trial counsel’s performance that Appellant currently asks this court to

decide were not among them. We note, however, that Appellant’s January 25, 2002

amended PCRA petition included the following claim:

To the extent that prior counsel failed to properly investigate and to make

the objections and arguments raised throughout this petition, at trial, in

post-trial motions and on direct appeal, counsel were ineffective, in violation

of Petitioner’s rights under the Fifth, Sixth, Eighth and Fourteenth

Amendments to the United States Constitution and the corresponding

provisions of the Pennsylvania Constitution.

16 Grant held that claims of counsel’s ineffectiveness generally should wait until collateral

review, overruling the prior procedural rule announced in Hubbard, which required that

ineffectiveness claims be raised as soon as an appellant had new counsel. See

Commonwealth v. Bridges, 584 Pa. 589, 597, 886 A.2d 1127, 1132 (2005);

Commonwealth v. Edmiston, 578 Pa. 284, 294-95, 851 A.2d 883, 889 (2004).

[J-1-2015] - 16

Amended PCRA Petition filed 1/25/02. Additionally, Appellant’s brief to this Court

attaches to each of the claims of trial counsel’s ineffectiveness a layered claim that

appellate counsel rendered ineffective assistance for failing to include those claims on

direct appeal.

Where claims of trial counsel ineffectiveness have already been, or could

previously have been, litigated Lthe only way a petitioner can successfully

mount a challenge to the effectiveness of counsel is to assert a “layered”

claim of ineffectiveness, establishing first that appellate counsel was

ineffective in failing to challenge the effectiveness of trial counsel, which

requires as a threshold matter that trial counsel was ineffective in the first

instance.

Commonwealth v. Dennis, 597 Pa. 159, 175, 950 A.2d 945, 954 (2008) (citation omitted).

To prevail upon a layered ineffectiveness claim a petitioner must present argument on the

three prongs of the Strickland/Pierce test as to each relevant layer of representation.

Commonwealth v. Reaves, 592 Pa. 134, 147-48, 923 A.2d 1119, 1127-28 (2007).

Thus, Appellant may still be entitled to PCRA relief if he can demonstrate

ineffectiveness as to both trial counsel and appellate counsel. The Commonwealth

contends that Appellant has not accomplished this because his brief offers only bald

assertions of appellate counsel’s ineffectiveness which fail to adequately address all

three Strickland/Pierce criteria as to those layered claims. Commonwealth’s brief at

13-15 (citing Commonwealth v. Steele, 599 Pa. 341, 361, 961 A.2d 786, 797 (2008) for

the proposition that “where an appellant fails to meaningfully discuss all three prongs of

the ineffectiveness test, this Court is ‘constrained to find such claims waived for lack of

development.’”).17

17 The Commonwealth also faults Appellant for failing to cite to any affidavit or

certification from appellate counsel, and disputes Appellant’s claim that it is obligatory

(continuedL)

[J-1-2015] - 17

The Commonwealth acknowledges, however, that this Court has held that it may

be appropriate to remand the case rather than deny relief where deficiencies in

developing claims of appellate counsel ineffectiveness "mirror those in the PCRA

pleadings." Id. at 15, n. 2 (citing Walker, 613 Pa. at 614, 36 A.3d at 8-9). Remand is

unnecessary here, the Commonwealth avers, because even assuming Appellant’s claims

can be deemed to mirror those presented below, he has already had ample opportunity to

develop and support them, and, in any event, his underlying claims are without merit. Id.

This Court has found that in cases where the arguable merit of the underlying claim

of trial counsel's ineffectiveness has been established, remand may be warranted for the

opportunity to correct a deficient pleading of the remaining two prongs of the

Stickland/Pierce test regarding appellate counsel's ineffectiveness. Commonwealth v.

Moore, 580 Pa. 279, 290, 860 A.2d 88, 94 (2004) (italics added). We have also

concluded, however, that there is no need to remand a PCRA petition when the petitioner

has not carried his Stickland/Pierce burden in relation to the underlying claim of trial

counsel's ineffectiveness, “since even if the petitioner were able to craft a perfectly

layered argument in support of his claim, the petitioner's claim would not entitle him to

relief.” Id., (citing Commonwealth v. Rush, 576 Pa. 3, 14, 838 A.2d 651, 657-58 (2003).

Thus, we need not remand if Appellant has not met his burden of proving trial counsel’s

ineffectiveness. See also Reid, ___ Pa. at ___, 99 A.3d at 483 (where the

(Lcontinued)

upon appellate counsel to raise meritorious claims, asserting instead that it is well

established that “appellate counsel may reasonably forego issues of arguable merit in

order to focus on claims he believes are more likely to succeed.” Commonwealth’s brief

at 13-14 (citing Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 765-766, 145

L.Ed.2d 756 (2000); Smith v. Murray, 477 U.S. 527, 536[, 106 S.Ct. 2661, 2667, 91

L.Ed.2d 434] (1986).

[J-1-2015] - 18

Commonwealth's waiver objection is based solely on the inadequacy of Appellant's

presentation of his claim of appellate counsel's ineffectiveness, we will address the claims

on the merits, where appropriate).

With these standards in mind, we turn to the claims raised by Appellant.

Claim 1. Counsel was ineffective for failing to develop heat of passion,

diminished capacity, and voluntary intoxication defenses to first-degree

murder; appellate counsel was ineffective; and the lower court erred in

summarily denying this claim without an evidentiary hearing.

Before reaching the merits of this claim, we first address the Commonwealth’s

assertion that a portion of it has been waived. To do so, we recognize the circuitous path

the parties have traveled to reach this Court. Although Appellant now argues that trial

counsel should have developed each of the three defenses of heat of passion, diminished

capacity, and voluntary intoxication, he did not originally request post-conviction relief on

that particular ground. Appellant’s January 25, 2002, amended PCRA petition instead

asserted as grounds for relief that:

PETITIONER IS ENTITLED TO RELIEF FROM HIS CONVICTION AND

SENTENCE BECAUSE TRIAL COUNSEL RENDERED INEFFECTIVE

ASSISTANCE OF COUNSEL AT THE GUILT STAGE OF PETITIONER’S

TRIAL BY FAILING TO PROPERLY CONSULT WITH PETITIONER

PRIOR TO TRIAL, FAILING TO PERFORM AN ADEQUATE PRE-TRIAL

INVESTIGATION, AND FAILING TO INVESTIGATE, PROCURE AND

PRESENT EVIDENCE IN SUPPORT OF THE ONLY DEFENSE

OFFERED TO THE CHARGE OF FIRST DEGREE MURDER -

VOLUNTARY INTOXICATION. AS A RESULT, PETITIONER’S RIGHTS

UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

ARTICLE 1, SECTIONS 9, 13 AND 14 OF THE PENNSYLVANIA

CONSTITUTION WERE VIOLATED.

Amended PCRA petition filed 1/25/02, Claim II at i-ii, 17 (capitalization in original).

[J-1-2015] - 19

In pertinent part, the amended PCRA petition supported this claim with detailed

argument that, in light of trial counsel’s decision to pursue a voluntary intoxication

diminished capacity defense, counsel was ineffective in failing to obtain lay and expert

testimony to support that defense. The only mention of trial counsel’s failure to develop

a mental deficit diminished capacity defense was a bald allegation that “in addition to his

failure to present to the jury the overwhelming evidence of [Appellant’s] diminished

capacity due to his PCP use at the time of the offense, trial counsel also failed to

investigate and present to the jury the readily available evidence of [Appellant’s] mental

deficiencies,” id. at 27, and the amended PCRA petition did not assert or argue that trial

counsel was ineffective for failing to develop a heat of passion defense.

The matter was pending before Judge Jones for nearly three more years before

Appellant made any reference to trial counsel’s failure to develop a heat of passion

defense, and that reference came not in a court approved supplement to Appellant’s

PCRA petition, but in a “Response in Opposition to the Commonwealth’s Supplemental

Motion to Dismiss and Discovery Requests.” Response filed 12/23/04 at 9.18 There is

no indication that Appellant requested that the PCRA court consider this document to be

an amendment to Appellant’s PCRA petition, and there is no indication that the court

explicitly granted leave to amend.19

18 Therein, Appellant asserted that “there was available evidence that this was a crime of

passion that trial counsel failed to investigate and introduce.” “Response in Opposition

to the Commonwealth’s Supplemental Motion to Dismiss and Discovery Requests” filed

12/23/04 at 9.

19 The Rules of Criminal Procedure contemplate that amendments to pending PCRA

petitions are to be “freely allowed to achieve substantial justice,” Pa.R.Crim.P. 905(A), but

Rule 905 amendments are not “self-authorizing” such that a petitioner may simply

“amend” a pending petition with a supplemental pleading. See Commonwealth v.

(continuedL)

[J-1-2015] - 20

By the time Appellant raised the heat of passion issue in the “Response in

Opposition to the Commonwealth’s Supplemental Motion to Dismiss and Discovery

Requests” in December, 2004, the PCRA court was embroiled in Appellant’s Atkins claim,

which was followed by argument in 2005 on the applicability of Grant, supra; a 2006 claim

by Appellant (spurred by the disclosure of the “Sagel Lecture” notes) that the

Commonwealth had violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90

L.Ed.2d 69 (1986) (determining that race-based peremptory strikes violated equal

protection); and a 2007 claim by Appellant that his conviction must be vacated because

he did not receive a pre-trial competency hearing. Although Judge Jones ruled on the

bulk of these issues,20 Appellant’s underlying request for post-conviction relief remained

outstanding in 2009, when Judge Jones moved to the Federal bench and Judge Sarmina

took his place.

Only after Judge Sarmina conducted the evidentiary hearing on Appellant’s

penalty phase mitigation claim did she turn to Appellant’s unresolved guilt phase claims.

N.T. 10/24/11-10/28/11; N.T. 6/22/12 at 22-23.21 By that time, more than ten years had

(Lcontinued)

Porter, 613 Pa. 510, 523-24, 35 A.3d 4, 12 (2012). “Rather, the Rule explicitly states that

amendment is permitted only by direction or leave of the PCRA court.” Id., 613 Pa. at

524, 35 A.3d at 12.

20 Judge Jones allowed Appellant to withdraw the Atkins claim, denied relief on the

Batson claim in 2007, and denied relief on the competency claim in 2008.

21 During an October 15, 2010 hearing before Judge Sarmina, Appellant’s counsel

indicated to the court that Judge Jones had limited the evidentiary hearing to Appellant’s

penalty phase issues. N.T. 10/15/10 at 11. At the commencement of the October 24,

2011 proceedings before Judge Sarmina, Appellant’s counsel indicated to the court that

the hearing had been limited to the question of whether trial counsel was ineffective in

failing to present adequate mental health evidence as it pertained to the mitigating factors

set forth in 42 Pa.C.S. §§ 9711(e)(2) and (e)(3). N.T. 10/24/11 at 6-7.

[J-1-2015] - 21

passed since Appellant’s Amended PCRA petition had been filed, and nearly eight years

had passed since Appellant inserted allegations regarding counsel’s failure to raise a

heat of passion defense into his “Response in Opposition to the Commonwealth’s

Supplemental Motion to Dismiss and Discovery Requests.” Further complicating

matters, when Appellant filed his “Motion for Reconsideration and Supplemental

Post-Hearing Memorandum of Law,” he couched the heat of passion issue as a “claim

that had been previously submitted but not adjudicated,” without acknowledging that

Judge Jones had never granted permission to supplement the PCRA petition to add the

claim. Motion for Reconsideration and Supplemental Post-Hearing Memorandum of

Law filed 8/28/12 at 1 (emphasis added).

On January 3, 2013, Judge Sarmina heard argument on the reconsideration of

Appellant’s penalty phase mitigation claim and additional guilt phase claims. Appellant

briefly argued trial counsel’s failure to present evidence in support of voluntary

intoxication and mental deficit diminished capacity defenses but did not address

counsel’s failure to present a heat of passion defense. The Commonwealth did not

comment on Appellant’s failure to properly raise the heat of passion claim as grounds for

post-conviction relief, neither was it addressed by Judge Sarmina, who decided at the

conclusion of the hearing that trial counsel was not ineffective. N.T. 1/3/13 at 29-30. In

so determining, Judge Sarmina first addressed trial counsel’s failure to assail Appellant’s

ability to form the specific intent to kill, noting that “the evidence as a whole did, in fact,

show that [Appellant] was capable of forming the specific intent to kill and showed very

clearly that [Appellant] acted in a deliberate manner.” Id. Additionally, Judge Sarmina

determined that trial counsel was not obligated to seek additional expert opinions after Dr.

[J-1-2015] - 22

Tepper indicated his findings would not be helpful at the guilt phase of trial. Id. at 30.22

Thus, Judge Sarmina did not separately address mental deficit diminished capacity but

generally found that the evidence demonstrated that Appellant was capable of forming

the specific intent to kill and that trial counsel had reasonably retained and relied on Dr.

Tepper, thus supporting a finding that trial counsel should not be found ineffective for

failing to develop that defense.

With regard to the presentation of a heat of passion defense, Judge Sarmina

concluded that trial counsel was not ineffective for failing to present psychiatric testimony

in support of such a defense because Appellant could not make the requisite objective

showing of sufficient legal provocation by the victim; thus, all the elements of the defense

were not present. Id. at 30-31. Judge Sarmina further noted that even if Appellant

could prove sufficient legal provocation, he failed to establish that the killing happened so

suddenly as to preclude a cooling period. Id. Judge Sarmina also acknowledged that

this Court had determined on direct appeal that there was no evidence of provocation.

22 During the penalty phase of trial, Appellant complained he believed that his “records

from the psychologist should have been brought forth before the end of this trial,” and

asserted that trial counsel rendered ineffective assistance for failing to do so. N.T.

2/17/96 at 3. Trial counsel explained in response that although he had retained Dr.

Tepper to build potential guilt phases defenses, he decided not to call Dr. Tepper to testify

during the guilt phase after “Dr. Tepper indicated that based on his examination he could

not render an opinion sufficient to assist the defendant at the guilt phase,” and further,

that “[h]e indicated to me specifically that he could not and it would probably be harmful to

the defendant if he were called to testify at that phaseL .”. N.T. 2/17/96 at 12-13. The

Commonwealth also responded to Appellant’s complaint, pointing out that the thrust of

the defense at trial was that Appellant had acted under an overwhelmingly powerful

first-time use of PCP, and that Dr. Tepper’s testimony contradicted that. Id. at 15.

[J-1-2015] - 23

Id. (citing Mason, 559 Pa. at 511, 741 A.2d at 714.23 After setting forth her reasons for

doing so on the record, Judge Sarmina denied reconsideration and dismissed Appellant’s

request for post-conviction relief in open court, indicating that the parties would receive no

additional notice of the dismissal. N.T. 1/3/13 at 32.

Following his timely appeal of Judge Sarmina’s denial of relief, Appellant filed a

Rule 1925(b) statement. Adding to the developing procedural quagmire, however,

despite arguing to Judge Sarmina in his “Motion for Reconsideration and Supplemental

Post-Hearing Memorandum of Law” that trial counsel failed to develop each of the three

discrete defenses of heat of passion, mental deficit diminished capacity and voluntary

intoxication diminished capacity, Appellant’s Rule 1925(b) statement alerted Judge

Sarmina only that Appellant intended to claim on appeal “counsel failed to L obtain and

elicit witness and expert testimony that would demonstrate petitioner was guilty of no

more than third-degree murder.” Pa.R.A.P. 1925(b) statement at 2, Matter 5. As a

result, the response contained in Judge Sarmina’s Rule 1925(a) opinion harkens back to

Appellant’s original claim that trial counsel failed to “investigate, procure and present

evidence” in support of the defense of voluntary intoxication, Amended PCRA petition at

17, and addresses the reasons trial counsel should not be found ineffective for failing to

develop that defense.

23 As noted supra, this Court determined on direct appeal that the record did not support

a heat of passion defense since Appellant claimed he was so intoxicated at the time of the

stabbing that he could not remember whether words were exchanged which would give

rise to a heat of passion defense, there was no evidence that the victim did anything

immediately before the stabbing to provoke Appellant, and the victim’s son testified that

his mother was just lying on the bed when Appellant came into the room and began

stabbing her. Mason, 559 Pa. at 511, 741 A.2d at 714.

[J-1-2015] - 24

In doing so, Judge Sarmina initially opined that, to the extent Appellant asserts that

trial counsel erred in failing to call lay witnesses Larry Lawhorn and Brian Mason in

support of a voluntary intoxication defense,24 such an allegation was previously litigated

by this Court on direct appeal. Pa.R.A.P. 1925(a) Opinion filed 11/20/13 at 19-20 (citing

Mason, 559 Pa. at 514, n. 6, 741 A.2d at 716 n. 6. Turning to whether trial counsel was

ineffective for failing to call a mental health expert to explain the effects of PCP and opine

that the drug prevented Appellant from forming the specific intent to kill,25 Judge Sarmina

reiterates her conclusion that trial counsel was not ineffective for failing to do so because

(1) counsel acted appropriately by retaining Dr. Tepper, an experienced expert in forensic

and clinical psychology, to evaluate Appellant for purposes of building potential guilt

phase defenses; (2) counsel reasonably relied on Dr. Tepper’s indication to counsel that

based on his examination of Appellant he could not render an opinion to assist during the

guilt phase and to do so might instead be harmful to the defense; and (3) counsel was not

obligated to search for additional, different, expert opinions after receiving Dr. Tepper’s

opinion. Id. at 21-22 (citing Commonwealth v. Bracey, 568 Pa. 264, 278, 795 A.2d 935,

942-943 (2001) (“An attorney will not be deemed ineffective for choosing not to present

expert testimony in support of a particular defense if an expert, after conducting a

24 Appellant’s amended PCRA petition argued that despite trial counsel’s decision to

pursue a guilt phase voluntary intoxication defense, trial counsel’s lack of investigation

prevented trial counsel from presenting lay witnesses Lawhorn and Mason to provide

corroborating testimony that Appellant was in a drug induced state on the morning of the

murder. Amended PCRA petition filed 1/25/02 at 20-21, 23-24.

25 Appellant’s amended PCRA petition argued that trial counsel failed to present expert

testimony to explain the effects of PCP, to put Appellant’s PCP use on the day of the

offense into context, and to offer an opinion that the drug prevented Appellant from

forming the specific intent to kill. Amended PCRA petition filed 1/25/02 at 24, 26.

[J-1-2015] - 25

reasonable evaluation, informed the attorney that he could not aid the defense(s) at

issue.”).26

Additionally, as part of a discussion of Appellant’s Rule 1925(b) claim that the

PCRA Court erred by limiting the scope of the evidentiary hearing by not permitting

additional evidence to illustrate that Appellant was guilty of no more than third-degree

murder, Judge Sarmina opined that with regard to the presentation of a mental deficit

diminished capacity defense, trial counsel retained Dr. Tepper in an attempt to secure

expert testimony at the guilt phase to support any defense to murder of the first-degree,

including mental deficit diminished capacity. Dr. Tepper examined and evaluated

Appellant for such potential guilt-phase defenses, including the mental deficit diminished

capacity defense, but Dr. Tepper informed trial counsel that he could not testify in support

any guilt-phase defenses; thus, trial counsel cannot be deemed ineffective for reasonably

relying on Dr. Tepper’s learned evaluation. Id. at 22, n. 19.27

26 Judge Sarmina notes that her conclusion in this regard was not altered by Appellant’s

criticism that Dr. Tepper had not been able to properly evaluate Appellant in light of trial

counsel’s failure to provide the doctor with Appellant’s school records indicating

Appellant’s low IQ, because Judge Sarmina deemed such information irrelevant to

whether Dr. Tepper could have formed an opinion concerning the defense of voluntary

intoxication. Id. at 22, n. 18.

27 Also by way of addressing this claim, Judge Sarmina determined there was no genuine

issue of material fact necessitating a hearing on whether trial counsel was ineffective for

failing to present a heat of passion defense since, as determined by this Court on direct

appeal, Appellant failed to make the requisite objective showing of sufficient legal

provocation by the victim, thus counsel was not ineffective for failing to present psychiatric

testimony to support a heat of passion defense where all elements of the defense were

not present. Rule 1925(a) Opinion at 22, n. 19 (citing Commonwealth v. Watson, 523

Pa. 51, 565 A.2d 137 (1989); Commonwealth v. Sheppard, 648 A.2d 563, 566 (Pa.

Super. 1994)).

[J-1-2015] - 26

Veering from the language of his Rule 1925(b) statement back to the more specific

language of his “Motion for Reconsideration and Supplemental Post-Hearing

Memorandum of Law,” Appellant currently asserts to this Court that trial counsel was

ineffective for failing to develop the defenses of heat of passion, mental deficit and

voluntary intoxication diminished capacity. Appellant’s brief at 10. 28 The

Commonwealth asks that we find waived the portion of this claim pertaining to the heat of

passion defense because it was not raised in Appellant’s amended PCRA petition and

Appellant failed to obtain leave of court to supplement the petition to include it. 29

Commonwealth’s brief at 25 (citing Reid, ___ Pa. at ___, 99 A.3d at 484; Baumhammers,

625 Pa. at 390, 92 A.3d at 730-731; Commonwealth v. Elliott, 622 Pa. 236, 261, 80 A.3d

415, 430 (2013).30 Appellant does not specifically disagree with the Commonwealth’s

28 While Appellant’s Rule 1925(b) claim is more general than the issue he currently raises

before this Court, the more specific claim contained in his brief may be viewed as

subsidiary to the general Rule 1925(b) allegation of error if it were raised before the PCRA

court. See Pa.R.A.P. 1925(b)(4)(v) (“Each error identified in the Statement will be

deemed to include every subsidiary issue contained therein which was raised in the trial

court.”).

29 Pursuant to the Pennsylvania Rules of Criminal Procedure, “[e]ach ground relied upon

in support of the relief requested shall be stated in the petition. Failure to state such a

ground in the petition shall preclude the defendant from raising that ground in any

proceeding for post-conviction collateral relief.” Pa.R.Crim.P. 902(B). As we noted

above, amendments to pending PCRA petitions are to be “freely allowed to achieve

substantial justice,” Pa.R.Crim.P. 905(A), but such amendments are not “self-authorizing”

with the simple filing of a “supplemental” pleading. See Porter, 613 Pa. at 523-24, 35

A.3d at 12. Instead, amendment is permitted only by direction or leave of the PCRA

court.” Id., 613 Pa. at 524, 35 A.3d at 12.

30 In Reid, a PCRA petitioner sentenced to death for first-degree murder filed a series of

supplemental PCRA petitions without seeking or receiving permission to do so, prompting

the Commonwealth to urge this Court to find the issues contained therein waived. Reid,

___ Pa. ___, 99 A.3d at 483. The PCRA court’s Rule 1925(a) opinion, however,

addressed the issues, in light of “the Court's inclination to liberality in these proceedings.”

(continuedL)

[J-1-2015] - 27

(Lcontinued)

Id., ___ Pa. ___, 99 A.3d at 483. This Court nonetheless found waived those claim that

were raised for the first time in apparently unauthorized supplemental petitions, noting

that:

Notwithstanding the PCRA court's indulgence in addressing all of

Appellant's claims, we agree that it was incumbent upon Appellant to

identify where in the record the supplemental petitions were authorized

and/or to reconstruct the record if such authorization was provided off the

record. Appellant has not done so. This Court has condemned the

unauthorized filing of supplements and amendments to PCRA petitions,

and held that claims raised in such supplements are subject to waiver.

See [ ]Elliott, 622 Pa. [at] 261, 80 A.3d [at] 430 [ ]; Roney, ___ Pa. [at] ___,

79 A.3d [at] 615–16 [ ]; [ ]Porter, 613 Pa. [at ___], 35 A.3d [at] 12 (2012).

Id., ___ Pa. ___, 99 A.3d at 484.

In Baumhammers, a PCRA petitioner sentenced to death for first-degree murder

raised in his brief to this Court a claim that did not appear among the claims raised in his

PCRA petition, prompting the Commonwealth to urge a finding of waiver.

Baumhammers, 625 Pa. at 389, 92 A.3d at 729. The petitioner reasoned that the claim

was nonetheless preserved because it was “related to the previous claim” and was

discussed in a pleading responsive to the Commonwealth's answer to the PCRA petition.

Id. Addressing the situation, this Court explained:

Our criminal procedural rules reflect that the PCRA judge “may grant

leave to amend ... a petition for post-conviction collateral relief at any time,”

and that amendment “shall be freely allowed to achieve substantial justice.”

Pa.R.Crim.P. 905(A); see Commonwealth v. Williams, 573 Pa. 613, 633,

828 A.2d 981, 993 (2003) (noting that the criminal procedural rules

contemplate a “liberal amendment” policy for PCRA petitions).

Nevertheless, it is clear from the rule's text that leave to amend must be

sought and obtained, and hence, amendments are not “self-authorizing.” [

] Porter, 613 Pa. [at] 523, 35 A.3d [at] 12 [ ]. Thus, for example, a petitioner

may not “simply ‘amend’ a pending petition with a supplemental pleading.”

Id. Rather, Rule 905 “explicitly states that amendment is permitted only by

direction or leave of the PCRA Court.” Id. at 523–24, 35 A.3d at 12; see

also Williams, 573 Pa. at 625, 828 A.2d at 988 (indicating that the PCRA

court retains discretion whether or not to grant a motion to amend a

post-conviction petition). It follows that petitioners may not automatically

“amend” their PCRA petitions via responsive pleadings.

Id., 625 Pa. at 391, 92 A.3d at 730. Noting that the petitioner did not seek leave to

amend his PCRA petition to include the claim; the claim could not be construed as

subsumed within the prior claim; the PCRA court did not treat Appellant's responsive

pleading as a request for leave to amend; the record contained no discussion of such a

(continuedL)

[J-1-2015] - 28

accusation that he did not obtain leave of court to amend his PCRA petition to include the

heat of passion issue. Instead, addressing this issue as part of a larger challenge to the

various “deficiencies” raised by the Commonwealth,31 Appellant asserts that the PCRA

court’s failure to give notice of its intention to dismiss as required by Pennsylvania Rule of

Criminal Procedure 909 denied him the opportunity to respond to the dismissal and

(Lcontinued)

request; and the court did not address the new substantive contention in its opinion

disposing of Appellant's PCRA claims, we found the claim waived, and further recognized

that “waiver cannot be avoided solely by reference to Appellant's Concise Statement of

Matters Complained of on Appeal, as such a statement, which is provided after the notice

of appeal has already been filed, cannot operate to add new substantive claims that were

not included in the PCRA petition itself.” Id., 625 Pa. at 391-392, 92 A.3d at 731

In Elliott, a PCRA petitioner sentenced to death for first-degree murder raised in a

supplemental brief to the PCRA court a claim that trial counsel was ineffective for failing to

meet with him personally prior to trial or otherwise prepare for trial. This court found the

claim waived, explaining:

Because Elliott did not include in his PCRA petition the claim alleging trial

counsel's ineffectiveness for failing to meet with him prior to trial, and did not

obtain permission to amend his petition to include the same, the issue is

waived. See Commonwealth v. Porter, 613 Pa. 510, 35 A.3d 4, 14 (2012)

(holding that a PCRA petitioner may not raise new claims by merely

supplementing a pending PCRA petition without court authorization

because to do so would “wrongly subvert the time limitation and serial

petition restrictions of the PCRA”); Pa.R.Crim.P. 902(B) (providing that the

“[f]ailure to state such a ground [for relief] in the [PCRA] petition shall

preclude the defendant from raising that ground in any proceeding for

post-conviction collateral relief”).

Elliott, 622 Pa. at 261, 80 A.3d at 430.

31 Appellant specifically references the Commonwealth’s allegations that counsel

neglected to substitute a certification or affidavit for appellate counsel after the original

certification was withdrawn; that Dr. Mash’s report was never filed; and that claims raised

in supplements were waived for lack of affirmative permission from the lower court.

Appellant’s Reply brief filed 2/2/15 at 9 (citing Commonwealth’s brief at 14, 21, 25, 30-31,

36, 63-64, 82).

[J-1-2015] - 29

remedy the deficiencies, requiring us to remand the matter.32 Appellant’s reply brief at

7-10.

Appellant’s argument is misplaced. He did not receive notice of dismissal for

failure to properly amend (and the accompanying opportunity to, presumably, seek to

cure the deficiency by properly amending) because that was not the ground upon which

Judge Sarmina dismissed the issue. Instead, because of the procedural irregularities of

this case, caused in part by Appellant’s own counsel’s indication to the court that the heat

of passion issue had been properly pleaded and was awaiting determination, Judge

Sarmina did not recognize that the issue had not been properly pleaded. As such, she

allowed both written and oral argument on it and addressed it on its merits, see N.T.

1/3/13 at 25-30, before determining that trial counsel was not ineffective for failing to

pursue a heat of passion defense because it could not be proven in the absence of the

necessary element of provocation. Although the Commonwealth is correct that

Appellant never received permission to amend his request for relief to include the heat of

passion claim, the Commonwealth is partially responsible for Judge Sarmina’s failure to

recognize that fact, as the prosecutor not only failed to contradict Appellant’s counsel’s

misstatements to the court, but also argued the issue at the January 3, 2013 hearing as if

it had been properly pled. Id. at 25.

Nevertheless, it is well-settled that claims raised outside of a court-authorized

PCRA petition are subject to waiver regardless of whether the Commonwealth raises a

32 Rule 909 requires the PCRA court to provide a capital petitioner with notice of the

court's intent to dismiss, and further obliges the PCRA court to “state in the notice the

reasons for the dismissal.” Pa.R.Crim.P. 909(B)(2)(a). Once notice is given, the

petitioner has 20 days in which to respond to attempt to cure the perceived deficiencies.

Pa.R.Crim.P. 909(B)(2)(b).

[J-1-2015] - 30

timely and specific objection to them at the time they are raised. Reid, ___ Pa. at ___, 99

A.3d at 484. While the Commonwealth in Reid urged this Court to find waiver in that

case, we did not hold that waiver was conditional upon the Commonwealth first objecting

to unauthorized claims. Instead, our decision depended only upon whether the

petitioner had sought and received permission to amend his claims through a

supplemental petition. Finding that the petitioner in Reid had not sought the court’s

permission, we found his claims to be waived.

The petitioner bears the onus of informing the PCRA court that he or she seeks to

add claims through an amended petition, and, in response, the court shall freely grant

leave to amend where doing so achieves substantial justice consistent with the dictates of

Pa.R.C.P. 905(A). As described above, Appellant failed properly to seek the PCRA

court’s permission to amend his PCRA petition to include, for the first time, a layered

ineffectiveness claim founded on the theory that trial counsel should have presented a

diminished capacity “heat of passion” defense at trial. Judge Sarmina entertained the

newly-raised theory on its merits during the evidentiary hearing not as part of a policy to

authorize and address all new claims at that time--she had, in fact, adopted no such

policy33--but in apparent reliance upon the parties’ taking up argument of the claim as if it

had been properly pleaded at some point before Judge Jones. We, therefore, find that

33 At the outset of the January 3, 2013, PCRA hearing, Judge Sarmina clearly stated its

purpose: “We [are] here for reconsideration as well as for any additional claims that

might not have been addressed by Judge Jones but which you thought should be

addressed.” Id. at 2. As Judge Jones could have neither “addressed” nor “failed to

address” a “claim” that was never raised before him in the first place, Justice Sarmina’s

statement must be understood as contemplating only those claims already raised before

the PCRA court.

[J-1-2015] - 31

Appellant has waived the heat of passion claim for failure to raise it in an authorized

amended PCRA petition.

Even if, under the particular circumstances of this case, we were willing to view

Judge Sarmina’s opening statement at the January 3, 2013, evidentiary hearing as

implicitly authorizing all new claims, including Appellant’s heat of passion claim, so as to

preclude the application of waiver doctrine herein, we would still find no error with Judge

Sarmina’s determination that trial counsel did not render ineffective assistance for failing

to present lay and expert testimony in support of a “heat of passion” defense. We

engage in merits review of this ineffective assistance claim first.

Applying the standard governing ineffectiveness claims under the PCRA, we begin

by reviewing Appellant’s assertion that this underlying claim is of arguable merit because

there was evidence that Appellant acted out of heat of passion, and the presentation of

such evidence, coupled with expert testimony, would have raised a reasonable doubt as

to first-degree murder. Appellant’s brief at 14. A heat of passion defense is a partial

defense that addresses the element of intent and, if successfully argued, mitigates

first-degree murder to third-degree murder. See Hutchinson, 611 Pa. at __, 25 A.3d at

314. It seeks to show that the defendant is guilty of voluntary manslaughter, not murder,

by proving that at the time of the killing he or she was acting under a sudden and intense

passion resulting from serious provocation by the victim. See 18 Pa.C.S. § 2503(a) (“[a]

person who kills an individual without lawful justification commits voluntary manslaughter

if at the time of the killing he is acting under a sudden and intense passion resulting from

serious provocation by L the individual killed.”).

[J-1-2015] - 32

In order to successfully argue heat of passion, a defendant must prove (1)

provocation on the part of the victim, (2) that a reasonable man who was confronted with

the provoking events would become ‘impassioned to the extent that his mind was

incapable of cool reflection,” and (3) that the defendant did not have sufficient cooling off

time between the provocation and the killing. See Commonwealth v. Busanet, 618 Pa.

1, 34-35, 54 A.3d 35, 55 (2012) (holding no evidence of provocation where the victim's

threats against Appellant were made weeks prior to the shooting, thereby affording

Appellant sufficient time to engage in cool reflection); Martin, 607 Pa. at 186, 5 A.3d at

189 (“In determining whether there was sufficient provocation to create uncontrollable

passion in a reasonable person, we determine whether the killer actually acted in the heat

of passion, whether the provocation lead directly to the slaying of the person responsible

for the provocation, and whether the killer had sufficient cooling off time.”);

Commonwealth v. Williams, 602 Pa. 360, 391 n. 30, 980 A.2d 510, 529 n. 30 (2009) (a

violent confrontation occurring two days before the murder would not serve to reduce the

degree of guilt to manslaughter, since killings do not occur under the heat of passion

where there was sufficient time for cooling between whatever provocation might have

existed and the actual killings). Further, “[i]f any element is missing, the provocation

defense fails.” Martin, supra. See also Commonwealth v. Sanchez, 623 Pa. 253, 314,

82 A.3d 943, 980 (2013) (“If any of these be wanting—if there be provocation without

passion, or passion without a sufficient cause of provocation, or there be time to cool, and

reason has resumed its sway, the killing will be murder.”).

Here, in declaring that there was arguable merit to a heat of passion defense,

Appellant posits that the required provocation came in the form of the cumulative effect of

[J-1-2015] - 33

his “stormy relationship” with the victim and her revelations of infidelity. Appellant’s brief

at 14-15. Appellant asserts that such revelations are shown through (1) the declaration

of Appellant’s Uncle, Larry Lawhorn, that Appellant told Lawhorn that the victim boasted

to Appellant of her infidelity while they were dating; and (2) Appellant’s statement to Dr.

Robert Sadoff that the victim told Appellant about her sexual exploits with other men

during her relationship with Appellant. Id. at 15 (citing Declaration of Larry Lawhorn; N.T.

10/24/11, 31-32, Declaration of Dr. Robert Sadoff). Appellant does not specifically

assert that, at the time of the killing, the victim’s provocation caused him to act, nor does

he address the implications of a cooling off period.

In response, the Commonwealth disputes the arguable merit to the pursuit of a

heat of passion defense, reflecting that Appellant made no claim the victim did anything

immediately prior to the killing to provoke him, let alone that such hypothetical

provocation incited Appellant to a sudden and intense passion, and noting that instead,

Appellant testified that he had no recollection of the killing or his state of mind when

committing it. Commonwealth’s brief at 26. In so arguing, the Commonwealth assails

as inadmissible hearsay Appellant’s Uncle’s rendition of what Appellant allegedly told him

the victim allegedly told Appellant, and further posits that regardless, revelations of

infidelity are not sufficient provocation to support a heat of passion defense. Id. at 27

(citing Commonwealth v. Miller, 605 Pa. 1, 20-21, 987 A.2d 638, 649-51 (2009)

(allegations of victim's past infidelities and flirtatiousness insufficient provocation);

Watson, 523 Pa. at 61, 565 A.2d at 137 (awareness that victim, appellant's former

long-time girlfriend, had a new boyfriend was not sufficient legal provocation)). The

Commonwealth additionally asserts that expert testimony regarding Appellant’s state of

[J-1-2015] - 34

mind would have become relevant only had Appellant been able to show sufficient legal

provocation, which he could not, and further, that trial counsel cannot be faulted for failing

to investigate Appellant’s recollections of the circumstances of the crime, because

Appellant told trial counsel that he had no such recollections. Id. at 28.

We find Appellant has failed to show there was arguable merit to a heat of passion

defense, and has not presented a basis upon which trial counsel may be found to have

acted unreasonably. To the extent that Appellant suggests a heat of passion defense

may be based purely on provoking actions or statements that are not contemporaneous

to the resulting “sudden and intense passion,” Appellant is clearly mistaken, as the

passage of time between provocation and the “passion” must be viewed as a cooling

period, and killings will not be deemed to have occurred under the heat of passion where

there was sufficient time for cooling between whatever provocation might have existed

and the actual killings. See Williams, supra.34

To the extent Appellant’s argument may be construed as suggesting there was a

provoking event and/or statement immediately prior to the killing, such a suggestion is

specious in light of Appellant’s own testimony that he does not recall his actions from the

night before the murder until after it was committed, much less remember what provoked

34 With regard to Appellant’s reliance on Commonwealth v. McCusker, 448 Pa. 382, 292

A.2d 286 (1972) for the proposition that “in making the objective determination as to what

constitutes sufficient provocation, reliance may be placed upon the cumulative impact of

a series of related events,” Appellant’s brief at 14 (emphasis omitted) (citing McCusker,

448 Pa. at 389, 292 A.2d at 290), Appellant neglects to mention that the series of related

events in that case involved a prior revelation of infidelity coupled with two other

provoking statements made immediately prior to the killing. McCusker, 448 Pa. at 389,

292 A.2d at 289-290.

[J-1-2015] - 35

those actions,35 and the testimony of the victim’s son that she did nothing prior to the

attack and was merely lying on the bed. Further, revelations of infidelity have been

deemed insufficient to constitute provocation for purposes of a heat of passion defense.

See Miller, 605 Pa. at 22, 987 A.2d at 651 (“In numerous cases, evidence showing a

history of minor disputes and allegations of past infidelity has been held not to be

sufficiently provocative to reduce murder to manslaughter.”); Commonwealth v. Dick, 602

Pa. 180, 187, 978 A.2d 956, 960 (2009) (A tumultuous relationship between appellant

and his wife and their argument sometime prior to the incident was “clearly insufficient” to

establish “heat of passion,” and appellant did not prove arguable merit to the pursuit of a

heat of passion defense).

For these reasons Appellant has failed to prove arguable merit to the pursuit of a

heat of passion defense. Even if we were to presume such a defense has arguable

merit, Appellant must also show that trial counsel’s course of action lacked a reasonable

basis, and he simply has not done so based on the omissions alleged. Appellant faults

trial counsel for failing to develop accounts of Appellant’s “long-term, intense and

contentious” relationship with the victim, and specifically argues that counsel should have

obtained and presented letters from the victim to Appellant expressing her love for him.

35 Appellant’s citation to Dr. Sadoff’s findings do not alter our opinion in this regard.

Although, upon initial review, Dr. Sadoff’s opinion could be read to suggest that the victim

said something to Appellant immediately prior to the murder to provoke him, since Dr.

Sadoff’s opinion was based in part on “Appellant’s recitation of the facts,” and since

Appellant testified that he did not remember anything from the night before the murder

until after it was committed, Appellant’s recitation of the facts obviously could not include

anything that happened during that time frame, including anything that may or may not

have been said by the victim immediately before the crime, and thus Dr. Sadoff’s findings

cannot be viewed as suggesting that such a statement was made.

[J-1-2015] - 36

Appellant’s brief at 16-17. It is unclear how such letters would be of any benefit to

proving that the victim provoked Appellant prior to the attack, causing him to act out of

sudden and intense passion. Also, because Appellant testified that he did not recall the

events of the killing, he could point to no evidence supporting his claim that he acted in the

heat of passion. Further, there was no evidence of provocation on the part of the victim

immediately prior to the attack, and the letters Appellant faults trial counsel for failing to

obtain do not provide such evidence. As such, it was not unreasonable for counsel to

forgo attempting to persuade the jury that Appellant acted in the heat of passion.

We turn now to Appellant's claim that trial counsel was ineffective for failing to

develop a diminished capacity defense, and we conclude that Appellant has failed to

show trial counsel rendered ineffective assistance with regard to the presentation of such

a defense. A diminished capacity defense is focused on negating the element of specific

intent to kill and may be grounded in mental defect or voluntary intoxication. See

Hutchinson, 611 Pa. at ___, 25 A.3d at 312; Commonwealth v. Spotz, 616 Pa. 164, 210,

47 A.3d 63, 90 (2012). “To establish a diminished capacity defense, a defendant must

prove that his cognitive abilities of deliberation and premeditation were so compromised,

by mental defect or voluntary intoxication, that he was unable to formulate the specific

intent to kill.” Spotz, 616 Pa. at 211, 47 A.3d at 90-91. A diminished capacity based on

voluntary intoxication cannot be made out by mere evidence of intoxication, but rather

requires evidence that demonstrates the defendant was intoxicated to such an extent he

was unable to form the requisite intent. Commonwealth v. Spotz, 587 Pa. 1, 47, 896

A.2d 1191, 1218 (2006). “For a defendant who proves a diminished capacity defense,

first-degree murder is mitigated to third-degree murder.” Hutchinson, supra (citing

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Commonwealth v. Saranchak, 581 Pa. 490, 866 A.2d 292, 299 (2005)). The factual

circumstances under which a voluntary intoxication diminished capacity defense could be

mounted are obviously different than those which would warrant a mental deficit

diminished capacity defense. Nonetheless, Appellant addresses the defenses together

for purposes of establishing that he has met the three Strickland/Pierce factors and

showing that trial counsel rendered ineffective assistance.

Appellant initially asserts there exists arguable merit to the claim that trial counsel

should have investigated and presented evidence to support a diminished capacity

defense by involuntary intoxication or mental deficit. With respect to involuntary

intoxication, Appellant argues, counsel knew Appellant was low-functioning mentally and

struggled with substance abuse since his teen years. Appellant’s brief at 11. This

profile, when coupled with testimony offered by family members who viewed Appellant to

appear “highly intoxicated” and “paranoid” on the evening in question, should have

prompted counsel to investigate further into Appellant’s medical and corrections history,

which, Appellant asserts, would have provided additional evidence of his violent reactions

to heavy drug use. Appellant concludes reasonable counsel in trial counsel’s position

would have then consulted an expert as to the intoxicating effects of marijuana and PCP

on Appellant’s mental state.

Contrary to Appellant’s position, however, it is clear that trial counsel did undertake

such a defense by presenting extensive testimony from Appellant, his mother, and his

brother, Kevin, regarding Appellant’s highly intoxicated state before the murder (fueled in

part by his first-time use of PCP to the point where he blacked out completely and

appeared to be hallucinating), and Appellant’s dazed and unusual appearance after the

[J-1-2015] - 38

crime occurred. Moreover, he pursued the expert neuropsychological opinion of Doctor

Tepper as to the likely effects of intoxication on Appellant, but he reasonably opted

against using the unfavorable opinion Dr. Tepper offered. Therefore, though the record

supports the position that there was arguable merit to investigating and presenting a

diminished capacity-involuntary intoxication defense, it also shows that trial counsel did,

in fact, investigate and present the claim. Whether trial counsel took a reasonable tack

with respect to advancing this defense implicates the reasonable basis prong of this

ineffectiveness claim, which we take up infra.

As for the arguable merit to Appellant’s assertion that trial counsel should have

pursued a diminished capacity-mental deficit defense, Appellant fails to establish that the

record would have supported such a defense. Although the diminished capacity

doctrine is well-recognized as a permissible defense to first-degree murder in the

appropriate situation, this Court has recognized that the defense is an extremely limited

one. See Commonwealth v. Taylor, 583 Pa. 170, 187, 876 A.2d 916, 926 (2005) (citing

Commonwealth v. Travaglia, 541 Pa. 108, 123, n. 10, 661 A.2d 352, 359 n. 10 (1995)).

Because the defense is directed exclusively at the negation of specific intent, for evidence

to be admissible it must necessarily put into question the criminal defendant's very ability

to form the intent to kill. Id. Thus, “[e]vidence that the defendant lacked the ability to

control his or her actions or acted impulsively is irrelevant to specific intent to kill, and thus

is not admissible to support a diminished capacity defense. Furthermore, diagnosis with

a personality disorder does not suffice to establish diminished capacity.” Hutchinson,

611 Pa. at ___, 25 A.3d at 312 (citations and footnote omitted). Additionally, the

evidence must provide insight as to the defendant’s mental state at the time of the

[J-1-2015] - 39

offense, “the only relevant time for a diminished capacity defense.” Commonwealth v.

Spotz, 610 Pa. 17, 144, 18 A.3d 244, 319 (2011) (citing Commonwealth v. Rainey, 593

Pa. 67, 928 A.2d 215, 237 (2007) (requiring a defendant advancing a defense of

diminished capacity based on mental defect to “establish [that he or she] had a mental

defect at the time of [the] murder that affected his [or her] cognitive abilities of deliberation

and premeditation necessary to formulate specific intent to kill.”)).

Here, the only basis upon which Appellant suggests counsel was obligated to

pursue a mental deficit diminished capacity defense was trial counsel’s knowledge that

Appellant was “low functioning,” his IQ was “barely above the [intellectually disabled]

level,” he had “learning difficulties” as a child and, according to Appellant’s uncle, suffered

from a “nervous condition.” Appellant’s brief at 11-12. Even if true, these contentions

do not suggest Appellant’s cognitive abilities of deliberation and premeditation were so

compromised by mental defect that he was unable to formulate the specific intent to kill,

much less that he suffered from such mental deficit at the time of the stabbing. Further,

any support the evidence of Appellant’s low IQ and learning disabilities may have

provided for a mental deficit diminished capacity defense was countered by the evidence

that, at the time of the attack, Appellant appeared to be fully capable of deliberate and

reasoned thought, as exhibited by Appellant’s lucid attempt to negotiate access to the

victim’s house and his sober demeanor after turning himself in to police. Further, the

arguable merit to a mental deficit diminished capacity defense was not suggested to

counsel by his expert, as Dr. Tepper, with knowledge that Appellant suffered such

diminished IQ and learning difficulties, was nevertheless of the opinion that Appellant was

[J-1-2015] - 40

indeed able to form a specific intent to kill.36 We conclude, therefore, that Appellant has

failed to show there would have been arguable merit to the pursuit of a diminished

capacity-mental deficit defense. Commonwealth v. Philistin, 617 Pa. 358, 379, 53 A.3d

1, 12 (2012) (“[A]s appellant failed to show he lacked the ability to form a specific intent to

kill, a diminished capacity defense was inapplicable, and trial counsel was not ineffective

for failing to present such defense.”).

Even assuming there would have been arguable merit to pursuing both a voluntary

intoxication and a mental deficit diminished capacity defense, we nonetheless find

Appellant has failed to show that trial counsel’s course of action lacks a reasonable basis,

thus Appellant has not met the second prong of the Strickland/Pierce test. With regard to

trial counsel’s alleged failure to appropriately pursue these defenses, Appellant accuses

trial counsel of failing to seek additional records, failing to interview additional family

members to learn more about how Appellant reacted when on drugs, and failing to

consult with an expert and provide the expert with such records and testimony.

Appellant’s brief at 12-13.

36 Dr. Tepper testified he met with Appellant on two occasions, for a total of four to five

hours, during which time Dr. Tepper collected background information from Appellant and

performed intellectual and personality tests on him. N.T. 2/16/96 at 72-73. The tests

revealed a verbal scale IQ of 71, and a non-verbal scale IQ of 73. Dr. Tepper also

reviewed police reports, school records, and drug and alcohol treatment records, and

interviewed Appellant’s mother. Id. at 73. Appellant and his mother reported to Dr.

Tepper that Appellant suffered learning difficulties, behavioral problems, which were

confirmed by the records Dr. Tepper reviewed. Id. at 75-76. Dr. Tepper testified at the

PCRA hearing that in light of Appellant’s actions near the time of the crime, Dr. Tepper

could not opine that Appellant was unable to form the specific intent to kill, but instead he

believed Appellant was “able to form certain intents, whether it's killing or getting to

locations.” N.T. 10/25/11 at 190-91.

[J-1-2015] - 41

Appellant specifically faults trial counsel for failing to obtain records from the Albert

Einstein Medical Center showing that Appellant overdosed on drugs as a teenager, and

Philadelphia Prison System records confirming Appellant’s heavy drug use and revealing

“possible suicide attempts” and head trauma. Id. at 12. The Commonwealth counters

that trial counsel reasonably pursued a voluntary intoxication defense by presenting

testimony that Appellant used PCP for the first time the night before the stabbing, that

during the early morning hours before the stabbing Appellant was mumbling and

hallucinating (behavior which was markedly different from how he normally reacted when

high), and that after the stabbing Appellant was extremely disoriented and remembered

nothing of the previous hours’ events. Commonwealth’s brief at 16-17 (citing N.T.

2/12/96 at 155-167; 2/13/96 at 25-26, 30-36). The Commonwealth asserts that trial

counsel properly relied on Appellant and his family to provide accurate background

information, and, to the extent that they did not supply information about purported

“suicide attempts” and “head trauma,” counsel cannot be found incompetent for failing to

uncover such information. Id. at 20. Further, the Commonwealth points, out, Appellant

himself specifically denied being suicidal. Id. at 20 n.4 (citing N.T. 10/24/11, 58; 6/22/12,

17-18.

Appellant also faults trial counsel for failing to present the testimony of his brother

Brian that Appellant had a longstanding drug problem and appeared high before the

stabbing. He specifically asserts that Brian would have testified Appellant was a drug

addict from the time he was a teenager, that Appellant hallucinated when he was high,

and that Appellant looked high on the night of the murder. Appellant’s brief at 13 (citing

N.T. 10/26/11, 190; Declaration of Brian Mason [Appendix to Amended PCRA petition,

[J-1-2015] - 42

tab 4]). The Commonwealth counters that because only Appellant’s mother and uncle

cooperated with trial counsel, and counsel was never informed that Brian Mason had any

information that would have supported the defense, counsel cannot be deemed to have

acted unreasonably in failing to call Brian Mason to testify. Commonwealth’s brief at 19

(citing N.T. 10/25/11 at 18; N.T. 10/26/11 at 202). The Commonwealth further asserts

that Brian Mason’s testimony would have been cumulative. Id. at 20.

Appellant lastly posits that “[p]rofessionally reasonable counsel who was in

possession of this evidence would have consulted an expert with respect to diminished

capacity/voluntary intoxication and provided the relevant information to the expert.”

Appellant’s brief at 13. Appellant observes that his current counsel was able to obtain an

opinion from Dr. Barbara Mash, an expert in neuropharmacology, that the intoxicating

effects of marijuana and PCP, combined with Appellant’s underlying organic brain

syndrome and history of cocaine dependence, prevented Appellant from forming a

specific intent to kill. Id. at 13-14 (citing Declaration of Dr. Barbara Mash attached as

“Exhibit C” to Appellant’s brief).

To the extent that the Commonwealth construes Appellant as faulting trial counsel

for failing to call Dr. Mash as an expert witness, the Commonwealth insists such a claim

has been waived by Appellant’s failure to include it in a PCRA petition. Commonwealth’s

brief at 21 (citing Reid, ___ Pa. at ___, 99 A.3d at 484; Baumhammers, 625 Pa. at 390, 92

A.3d at 729-730; Elliott, 622 Pa. at 261, 80 A.3d at 430). Regardless, the

Commonwealth posits, trial counsel cannot be deemed ineffective on this basis because

counsel did, in fact, consult an expert, Dr. Tepper, who evaluated Appellant’s history of

drug and alcohol abuse, including his use of PCP, and the impact such abuse might have

[J-1-2015] - 43

had on Appellant’s ability to control his behavior. Commonwealth’s brief at 17 (citing

N.T. 2/16/96 at, 76-80, 83-84).37 The Commonwealth emphasizes that trial counsel was

nonetheless unable to offer Dr. Tepper as a guilt phase witness because Dr. Tepper told

trial counsel that "he could not render an opinion sufficient to assist ... defendant at the

guilt phase" and "it would probably be harmful to ... defendant if he were called to testify at

that phase." Id. at 17 (citing N.T. 2/17/96, 12-13); 22-23 (citing N.T. 10/25/11, 50).38

The Commonwealth further notes Dr. Tepper himself testified, in a manner completely

incompatible with a diminished capacity defense, that Appellant’s actions near the time of

the crime revealed that he was able to form an intent to kill. Id. at 23 (citing N.T.

10/25/11, 190-191). 39 The Commonwealth observes Appellant cites to nothing to

indicate that Dr. Tepper’s opinion in this regard would have changed had he reviewed any

of the additional information Appellant faults counsel for failing to provide. Id.40 Thus,

the Commonwealth asserts, trial counsel appropriately relied upon Dr. Tepper’s opinion

37 Appellant discussed his longstanding drug and alcohol abuse with Dr. Tepper,

including Appellant’s consumption of alcohol and his use of marijuana, cocaine and PCP.

N.T. 2/16/96 at 82-84.

38 As noted above, during the penalty phase of trial, counsel explained that Dr. Tepper

had indicated he could not provide helpful guilt phase testimony. Counsel then

reiterated this during the PCRA hearing, when he testified that Dr. Tepper told him that he

could not help during the guilt phase of trial. N.T. 2/17/96 at 12-13); N.T. 10/25/11 at 50.

39 Dr. Tepper testified at the PCRA hearing that in light of Appellant’s actions near the

time of the crime, Dr. Tepper could not opine that Appellant was unable to form the

specific intent to kill and instead agreed that Appellant was “able to form certain intents,

whether it's killing or getting to locations.” N.T. 10/25/11 at 190-91.

40 In response to Appellant’s suggestion that it was unreasonable for the PCRA court to

credit trial counsel’s explanation for why Dr. Tepper was not called to testify at the guilt

phase, as it was not made in an adversarial proceeding, Appellant’s brief at 21, the

Commonwealth counters that Appellant does not challenge the accuracy of trial counsel’s

explanation and cites to trial counsel’s testimony at the PCRA hearing confirming the

statement made during the penalty phase. Commonwealth’s brief at 23 (citing N.T.

10/25/11 at 50, 190-191).

[J-1-2015] - 44

and was not obligated to seek out additional experts in the hope that they would provide a

more favorable opinion. Id. at 22 (citing Bracey, supra; Commonwealth v. Lewis, 560

Pa. 240, 244, 743 A.2d 907, 909 (2000)).

We conclude that because the information contained in the additional records cited

by Appellant would have been merely cumulative of the evidence of Appellant’s lifelong

struggle with drugs, presented at trial through his own testimony and that of his mother

and brother, Kevin, Appellant has failed to show that trial counsel’s failure to obtain the

additional records was unreasonable. See Hanible, 612 Pa. at 221, 30 A.3d at 449 (Trial

counsel cannot be deemed ineffective for failing to present additional evidence

cumulative of that already presented). Similarly, the proposed testimony from Brian

Mason would have been cumulative of the evidence already presented. Additionally, to

prevail on a claim that trial counsel was ineffective for failing to present a witness, the

defendant must demonstrate (in addition to the existence of the witness and counsel’s

awareness of that witness) that the witness was willing and able to cooperate on behalf of

the defendant; and that the proposed testimony was necessary to avoid prejudice to the

defendant. Commonwealth v. Tharp, ___ Pa. ___, 101 A.3d 736, 757-58 (2014) Here,

Brian Mason never told trial counsel that he observed Appellant on the morning before

the crime, and counsel testified that only Appellant’s mother and uncle cooperated with

counsel’s investigation. N.T. 10/25/11 at 18, 38; N.T. 10/26/11 at 202. Further, Brian’s

statements as to Appellant’s history of drug addiction and his condition prior to the crime

would only have served to corroborate the testimony already presented, and cannot be

deemed necessary to avoid prejudice to Appellant.

[J-1-2015] - 45

Neither do we find that Appellant has proven that trial counsel acted unreasonably

in retaining Dr. Tepper, but declining to call him as a guilt-phase witness in support of a

diminished capacity defense, in light of Dr. Tepper’s conclusion that Appellant was,

indeed, capable of forming the intent to kill. See Commonwealth v. Whitney, 550 Pa.

618, 632-33, 708 A.2d 471, 478 (1998) (trial counsel reasonably decided not to elicit guilt

phase testimony from the expert he had retained to evaluate the defendant, because the

expert determined that the defendant failed to meet the criteria for diminished capacity

and would have weakened that defense).

Appellant also asserts that he suffered prejudice as the result of trial counsel’s

course of action in this regard, alleging that had trial counsel conducted a reasonable

investigation and provided the results to an appropriate expert, that expert could have

testified that Appellant’s “underlying cognitive impairments and cocaine dependence,

together with his intoxicated state at the time of the offense” rendered Appellant incapable

of forming specific intent to kill, prompting the jury to acquit Appellant of first-degree

murder. Appellant’s brief at 18-19. The Commonwealth disagrees, arguing that

additional evidence attempting to prove that Appellant’s purported mental deficit and

intoxication prevented him from forming the specific intent to kill would not overcome in

the minds of the jury the evidence introduced as to Appellant’s actual demeanor before,

during and after the stabbing, which showed that he did, in fact, commit the crime in a

deliberate and purposeful manner. Commonwealth’s brief at 24.

In light of our conclusion that there was no arguable merit to the pursuit of a mental

deficit diminished capacity defense, our conclusion that trial counsel appropriately

investigated and presented a voluntary intoxication defense, and the evidence of record

[J-1-2015] - 46

concerning Appellant’s demeanor before, during, and after the commission of the crime

that contradicted the assertion that he was unable to form the required specific intent, we

find that Appellant has not shown that but for trial counsel’s course of action, the outcome

of this matter would have been different, thus Appellant has not established that he was

prejudiced.

Appellant asserts that we should remand for an evidentiary hearing on the issue of

trial counsels’ failure to develop a mental deficit diminished capacity defense. In

suggesting that a hearing is necessary, Appellant first perceives that it was unreasonable

for Judge Sarmina to credit trial counsel’s statement at the January 1, 2013 hearing,

discussed supra, that Dr. Tepper was unable to support such a guilt phase defense,

because, Appellant asserts, the statement was not made in the context of an adversarial

proceeding. Appellant’s brief at 20-21. Appellant did not complain of Judge Sarmina’s

reliance on trial counsel’s explanation at that the time it occurred, however, nor did

Appellant raise the allegation of error in his Rule 1925(b) statement. As such, it cannot

now provide a basis for relief. See Pa.R.A.P. 302(a) (“Issues not raised in the lower

court are waived and cannot be raised for the first time on appeal.”); Pa.R.A.P.

1925(b)(vii) (“Issues not included in the Statement and/or not raised in accordance with

the provisions of this paragraph (b)(4) are waived.”); Commonwealth v. Hairston, 624 Pa.

143, 170, 84 A.3d 657, 672 (2014) (citing Commonwealth v. Castillo, 585 Pa. 395, 888

A.2d 775, 780 (2005) (“Any issues not raised in a Pa.R.A.P. 1925(b) statement will be

waived.”)); Commonwealth v. Murray, 623 Pa. 506, 535, 83 A.3d 137, 155 (2013)

(Allegation that the trial court violated notions of due process by partaking in an ex parte

[J-1-2015] - 47

communication waived under Pa.R.A.P. 302(a) due to failure to lodge an objection at the

time the communication was revealed).

Appellant additionally asserts that remand for an evidentiary hearing is necessary

because he raised material issues of fact as to trial counsel’s failure to provide Dr. Tepper

with Appellant’s school records and psychiatric and family counseling records, and the

PCRA court ignored trial counsel’s failure to obtain evidence to independently support a

mental deficit diminished capacity defense. Appellant’s brief at 21 (citing N.T. 10/25/11,

12-13). Appellant has not proven the necessity of remand for an evidentiary hearing on

this issue, however. Judge Sarmina did not find credible Dr. Tepper's testimony that had

he received the records he would have been persuaded to send petitioner for

neuropsychological testing, and she was not persuaded that had Dr. Tepper been

provided additional records he would have changed his opinion at trial that petitioner did

"not exhibit any signs or symptoms indicative of an underlying major mental illness or

disorder."

In conjunction with Appellant’s assertion that trial counsel rendered ineffective

assistance for failing to raise and/or properly support diminished capacity and heat of

passion defenses, Appellant also argues appellate counsel’s ineffectiveness as follows:

Appellate counsel had no reasonable basis for failing to raise [trial

counsel’s failure to investigate and present evidence supporting a

diminished capacity/voluntary intoxication or heat of passion/voluntary

manslaughter defense] on direct appeal. He could have made this claim

as one sounding in trial counsel’s ineffectiveness for failing to investigate

and raise a meritorious defense. For the reasons set out above, the claim

would have been meritorious. Moreover, counsel could have had no

strategic reason for failing to raise this claim on appeal, as the raising of a

meritorious claim was obligatory. Appellant has also established

prejudice. Had counsel raised this claim on direct appeal, there is a

reasonable probability that the outcome of the appeal would have been

different.

[J-1-2015] - 48

Appellant’s brief at 20. Because Appellant has not demonstrated his entitlement to relief

on the underlying claim of trial counsel’s ineffectiveness, however, his claim of appellate

counsel's ineffectiveness is necessarily defeated as well. See Moore, 580 Pa. at 289, n.

3, 860 A.2d at 94, n.3.

Claim 2. Whether Mr. Mason is Entitled to a New Trial Because the

Commonwealth Elicited Improper, Prejudicial Hearsay and

Whether Counsel were Ineffective When They Did Not Object or

Raise the Issue on Direct Appeal.

Officer Terry Brown testified as a prosecution witness as Appellant’s trial. As

noted above, Officer Brown arrested Appellant on March 31, 1994 for assaulting the

victim. The following exchange occurred at trial:

PROSECUTION: What observations about [the victim’s] demeanor did

you make that led you to any particular conclusion about her state of mind?

WITNESS: Well, she was --- she had like a frightened look on her face

like she really didn’t want us to stop or she did want us to stop, it was really

hard to tell, but I knew something was wrong, at which time as they

approached the driver’s side of the wagon I jumped out of the wagon and I

said to the female, Miss, are you alright. She started to say yes.

DEFENSE COUNSEL: Your Honor, objection.

COURT: Overruled.

WITNESS: She started to say yes and then the defendant, I noticed that

the female had bruises on her forehead, she had one on her neck, she had

one on her mouth, and at which time the defendant said that a bunch of girls

had jumped her, at which time she snatched away from the defendant and

said he did it.

DEFENSE COUNSEL: Objection, Your Honor.

THE COURT: Just a moment. Overruled.

PROSEUCTION: And she said what?

[J-1-2015] - 49

WITNESS: At which time she pointed to the defendant and she state to

me he did it. I automatically placed the defendant under arrest. L I

spoke with the female, asked her was she okay and I asked her if she

wanted to press charges, at which time she was very unsure and I said,

well, he’s under arrest anyway for what I see and from what you stated, he’s

under arrest. She-

PROSECUTION: What -- go ahead.

WITNESS: At which time she says if you place him under arrest he’s

going to kill me.

NT 2/9/96, 63-64.41 Appellant’s trial counsel did not object to this final response, nor was

the issue raised by appellate counsel via post-verdict motion or on direct appeal

Appellant now asserts to this Court:

As evident from the prosecutor’s question preceding the impermissible

hearsay, which was changed mid-sentence, the prosecutor knew that the

hearsay was improper. The prosecutor asked, “What- go ahead.”

Evidently, his question was going to be “What [did she say]?” But, the

prosecutor presumably feared that such a question would draw an objection

and so he changed it to, “. . . go ahead.”

Appellant’s brief at 22. Appellant asserts that the prosecutor’s question called for “highly

improper and prejudicial hearsay, the statement did not fit any of the hearsay exceptions,

and trial counsel erred in failing to object to it.” Id. at 22-23.42

41 Judge Jones later instructed the jury the evidence it heard “tending to prove that the

defendant was arrested for an offense for which he is not on trial” was before it for the

limited purpose of “tending to show motive, intent and malice.” NT 2/14/96 at 122.

42 Appellant does not address what constitutes hearsay. As this Court has explained:

“Hearsay, which is a statement made by someone other than the declarant

while testifying at trial and is offered into evidence to prove the truth of the

matter asserted, is normally inadmissible at trial.” Commonwealth v.

Carson, 590 Pa. 501, 913 A.2d 220, 254 (2006); See Pa.R.E. 801(c) & 802.

Of course, out-of-court statements by an unavailable declarant may be

admissible if they fit within one of several recognized hearsay exceptions,

such as former testimony, a statement under belief of impending death, a

statement against interest, or a statement of personal or family history.

(continuedL)

[J-1-2015] - 50

Before addressing the merits of this claim we note that the Commonwealth has

asserted that it has been waived for Appellant’s failure to include it in his amended PCRA

petition or any subsequent court approved amendment/supplement to that petition.

Commonwealth’s brief at 30-31 (citing Reid, ___ Pa. ___, 99 A.3d at 484;

Baumhammers, 92 A.3d at 729-30; Elliott, 80 A.3d at 430).

A review of the record confirms that the claim was not included in Appellant’s

January 25, 2002 amended PCRA petition. Instead, it is raised in “Petitioner’s

Supplement and Response in Opposition to the Commonwealth’s Motion to Dismiss and

Reply in Support of his Motion for Relief pursuant to Atkins v. Virginia,” filed on November

10, 2003. The supplement and response specifically asserted:

Upon further investigation, Petitioner, through counsel and pursuant to

Pa.R.Crim.P. 905(A) (“Amendment [of a post-conviction petition] shall be

freely allowed to achieve substantial justice”), avers the following

supplemental claims:

L

Claim XVII. MR. MASON IS ENTITLED TO A NEW TRIAL BECAUSE

THE COMMONWEALTH IMPROPERLY ELICITED IMPROPER,

PREJUDICIAL HEARSAY AND COUNSEL WERE INEFFECTIVE WHEN

(Lcontinued)

See Pa.R.E. 804. In the alternative, out-of-court statements may be

admissible because they are non-hearsay, in which case they are

admissible for some relevant purpose other than to prove the truth of the

matter asserted. See Commonwealth v. [Raymond] Johnson, 576 Pa. 23,

838 A.2d 663, 680 (2003) (defendant's statements threatening witness's

family admissible as verbal acts, a form of non-hearsay, because evidence

not offered to establish truth of matter asserted, but rather, to demonstrate

fact of attempted influencing of witness); Commonwealth v. Puksar, 597 Pa.

240, 740 A.2d 219, 225 (1999) (statements by witness who overheard

defendant and his brother (the victim) arguing were admissible as

non-hearsay because not offered to prove truth of matter asserted, but

rather to establish motive for killings).

Commonwealth v. Ali, 608 Pa. 71, 126-27, 10 A.3d 282, 315-316 (2010).

[J-1-2015] - 51

THEY DID NOT OBJECT OR RAISE THE ISSUE ON POST-VERDICT

MOTIONS OR DIRECT APPEAL.

“Petitioner’s Supplement and Response in Opposition to the Commonwealth’s Motion to

Dismiss and Reply in Support of his Motion for Relief pursuant to Atkins v. Virginia,” filed

11/10/03 at 68, 79 (capitalization in original).43

Appellant does not point to the location in the record where permission to add this

supplemental claim was granted by the PCRA court, and our review of the docket sheet

and record reveal nothing to suggest Appellant received such permission.44 Although

Judge Jones dealt with several of Appellant’s claims, he did not specifically address this

allegation, nor was it addressed by Judge Sarmina when she took up the case. As we

noted above, following the transition from one judge to the other, there was obviously

confusion over what issues had been addressed by Judge Jones and what issues

remained for Judge Sarmina’s determination. It is clear from the briefs and arguments

presented by the parties, as well as the transcripts of the proceedings before Judge

Sarmina, that the question of whether Judge Jones had granted Appellant permission to

amend his PCRA petition to include this issue did not arise once the matter was

transferred to Judge Sarmina. It is also clear that the underlying ineffectiveness claim

was not one of the “remaining” issues Appellant sought permission to argue to Judge

Sarmina following the evidentiary hearing on the penalty phase mitigating evidence issue,

43 Like Appellant’s current brief to this Court, the supplement and response asserted that

the statement in question was hearsay, and did not fit any of the hearsay exceptions.

“Petitioner’s Supplement and Response in Opposition to the Commonwealth’s Motion to

Dismiss and Reply in Support of his Motion for Relief pursuant to Atkins v. Virginia,” filed

11/10/03 at 79.

44 The docket sheet accompanying the certified record in this case titles the November

10, 2003 document a “Brief in Opposition to Motion for Dismissal.”

[J-1-2015] - 52

and it is similarly clear that Judge Sarmina did not address the issue.45 Thus, when

Judge Sarmina dismissed Appellant’s PCRA petition, this claim was not mentioned in any

way.

Appellant does not dispute the Commonwealth’s assertion that he failed to secure

permission to amend his request for post-conviction relief to include this claim, but, he

now complains that the PCRA court’s failure to provide proper Rule 909 notice prevented

him from curing certain deficiencies alleged by the Commonwealth, including the failure

to secure permission to supplement his PCRA petition with additional claims. Appellant

did not raise this alleged error before the PCRA court at the time his request for

post-conviction relief was denied, nor did he include it in his Rule 1925(b) statement.46

Instead, he waited until February 22, 2015 (nearly two years after his PCRA petition was

denied) to include it in a reply brief to the Commonwealth’s brief to this Court. Reply brief

filed 2/2/15 at 9.

Because Appellant did not include the claim in a court-approved amendment to his

PCRA petition, it was never decided by the PCRA court. Further, Appellant did not alert

the PCRA court that the issue had been passed over until it was too late for the court to

act to remedy the situation by allowing the amendment.47 This claim has not been

45 Unlike the heat of passion issue, Appellant did not address this claim to Judge Sarmina

during the oral arguments that followed the evidentiary hearing.

46 The Rule 1925(b) statement raises the underlying ineffectiveness claim itself, as if it

had been addressed and denied by the PCRA court and is properly before this court for

review. Pa.R.A.P. 1925(b) statement filed 2/20/13 at 4, claim 14.

47 Inclusion of the issue in Appellant’s Rule 1925(b) statement does not alter this

circumstance. See Ali, 10 A.3d at 293 (A claim raised in a Rule 1925(b) statement

could not undo trial-level waiver); Steiner v. Markel, 600 Pa. 515, 523, 968 A.2d 1253,

1257 (2009) (“[A] 1925(b) statement can therefore never be used to raise a claim in the

(continuedL)

[J-1-2015] - 53

preserved for determination by this Court. Reid ___ Pa. at ___, 99 A.3d at 484;

Baumhammers, 625 Pa. at 390, 92 A.3d at 729-30; Elliott, 622 Pa. at 261, 80 A.3d at 430.

Claim 3. Whether Mr. Mason is Entitled to a New Trial Because the

Commonwealth Exercised its Peremptory Challenges in a

Gender-Discriminatory Manner and Whether Prior Counsel were

Ineffective for Failing to Litigate This Issue.

Appellant’s brief to this Court asserts that because the Commonwealth “used its

peremptory strikes in a gender discriminatory manner to exclude women from the jury,”

and “had no gender-neutral reason for striking these female prospective jurors,”

Appellant’s equal protection was violated and he is entitled to a new trial. Appellant’s

brief at 25 (citing J.E.B. v. Alabama, 511 U.S. 127 (1994)).48 Since Appellant’s trial and

(Lcontinued)

first instance.”); Commonwealth v. McMullen, 599 Pa. 435, 452, 961 A.2d 842, 852

(2008) (“A claim which is waived before the trial court is not given life by raising it for the

first time after an appeal has been taken.”).

48 J.E.B., which extended the holding of Batson, supra, determined that “[i]ntentional

discrimination on the basis of gender by state actors violates the Equal Protection Clause,

particularly where ... the discrimination serves to ratify and perpetuate invidious, archaic,

and overbroad stereotypes about the relative abilities of men and women.” J.E.B. 511

U.S. at 130-31. The defendant has the initial burden of demonstrating a prima facie case

that the prosecutor discriminated against potential jurors on the basis of gender, and to do

so must specifically identify:

(1) the gender of all the venirepersons in the jury pool; (2) the gender of all

venirepersons remaining after challenges for cause; (3) the gender of those

removed by the prosecution; (4) the gender of the jurors who served; and

(5) the gender of jurors acceptable to the Commonwealth who were stricken

by the defense.

Spotz, 587 Pa. at 35-36, 896 A.2d at 1211 (citing Commonwealth v. Aaron Jones, 542 Pa.

464, 668 A.2d 491, 519 (1995)).

[J-1-2015] - 54

direct appeal counsel did not complain of this allegedly discriminatory use of peremptory

strikes, Appellant couches his allegation as an ineffectiveness claim. Id.49

Appellant did not raise this allegation in his amended PCRA petition, but included it

in his “Petitioner’s Supplement and Response in Opposition to the Commonwealth’s

Motion to Dismiss and Reply in Support of his Motion for Relief pursuant to Atkins v.

Virginia,” filed on November 10, 2003. As with Appellant’s previous issue, the

Commonwealth again asserts that this allegation has been waived for failure to include it

in a court approved supplement/amendment. Commonwealth’s brief at 36 (citing Reid,

___ Pa. at ___, 99 A.3d at 484; Elliott, 622 Pa. at 261; 80 A.3d at 430).

Appellant does not point to the location in the record where the PCRA court

granted him permission to supplement/amend his request for post-conviction relief to

include this claim of gender discrimination in the Commonwealth’s peremptory

challenges. As with the prior issue he does not dispute that his request to amend his

PCRA petition was never granted, and instead asserts via his February 2, 2015 reply brief

that he was prevented from curing this deficiency by the PCRA court’s failure to provide

49A petitioner raising a Batson/J..E.B. claim through an ineffectiveness of counsel

challenge has an additional burden.

Defaulted [Batson/J.E.B.] claims argued through the derivative guise of

ineffectiveness are not, indeed cannot, be treated the same as properly

preserved [Batson/J.E.B.] objections. See Commonwealth v. Uderra, 580

Pa. 492, 862 A.2d 74, 86 (2004). When there is no [Batson/J.E.B.]

objection during jury selection, “a post-conviction petitioner may not rely on

a prima facie case under [Batson/J.E.B.], but must prove actual, purposeful

discrimination by a preponderance of the evidence ... in addition to all other

requirements essential to overcome the waiver of the underlying claim.”

Id. at 87. In the absence of such a showing, the petitioner cannot meet the

Strickland standard.

Commonwealth v. Sepulveda, 618 Pa. 262, 301-02, 55 A.3d 1108, 1132 (2012) (footnote

omitted).

[J-1-2015] - 55

proper Rule 909 notice. For the reasons expressed with regard to the previous issue, we

find that this issue has not been preserved for our review.

Claim 4. Whether Appellant is Entitled to Relief from His Death Sentence

Because Counsel was Ineffective at the Penalty Phase for Failing

to Investigate, Develop, and Present Mitigating Evidence; Whether

Appellate Counsel was Ineffective for Failing to Raise Trial

Counsel’s Ineffectiveness, All in Violation of the Sixth, Eighth, and

Fourteenth Amendments.

Appellant raised this issue in his January 25, 2002 amended PCRA petition, which

asserted trial counsel’s ineffectiveness for failing to investigate, develop and present

mitigating evident of Appellant’s mental health impairments and history of substance

abuse at the penalty phase of trial, and correspondingly asserted that appellate counsel

was ineffective for failing to argue trial counsel’s ineffectiveness. Amended PCRA

petition filed 1/25/02 at ii-iii, 36, xi, 108.

A review of the records reveals that at the penalty phase hearing, Appellant’s trial

counsel pursued mitigating circumstances under 42 Pa.C.S. § 9711(e)(2)-(4) and (8),

urging the jury to find that Appellant was under the influence of extreme mental or

emotional disturbance and that his capacity to appreciate the criminality of his conduct or

to conform his conduct to the requirements of law was substantially impaired, as well as

asking them to consider his age at the time of the crime and any other evidence of

mitigation concerning Appellant’s character and record and the circumstances of the

offense. N.T. 2/16/96 at 31-36, 40.50 Trial counsel called witnesses in support of the

50 A reading of this portion of the penalty phase transcript reveals that Appellant’s

accusation that “[c]ounsel did not know the statutory mitigating factors prior to

commencement of the sentencing phase,” Appellant’s brief at 30, is blatantly specious.

[J-1-2015] - 56

mitigating circumstances, and incorporated all the evidence presented on Appellant’s

behalf during the guilt phase of trial. Id.

Larry Lawhorn, Appellant’s uncle, explained to the jury that Appellant suffered from

difficulties from a young age, prompting Appellant’s mother to seek educational and

psychiatric help for him. Id. at 43-45. Mr. Lawhorn explained that although Appellant

was a respectful person who was clearly crying out for help, “the systems failed him.” Id.

at 46. Thelma Mason, Appellant’s mother, testified that Appellant had problems

concentrating and suffered from learning disabilities that caused him to repeat first grade.

Mrs. Mason told the jury that Appellant, along with rest of the family, underwent

counseling to determine what the problem was, but Appellant continued to have trouble

through elementary school into junior high school. Id. at 55-56. Appellant was

eventually enrolled in school for children with learning disabilities and behavior problems,

which caused the other children in his neighborhood to tease him for being different. Id.

at 56-57. Mrs. Mason further explained that Appellant eventually started doing drugs

and getting in trouble with the law, and continued to do drugs even while in court ordered

treatment. Id. at 57-58. Appellant’s drug problems persisted, she told the jury, and he

overdosed when he was 17 or 18, but even afterward he continued to battle addiction.

Id. at 58-59. Mrs. Mason confirmed that Appellant had no self-esteem. Id. at 58-60.

In addition to calling lay witinesses to explain to the jury Appellant’s limited mental

capacity and the depth of his struggles with drug addiction, trial counsel also elicited the

testimony of Dr. Tepper, who testified that he met with Appellant on two occasions, with

each meeting lasting between two and two and a half hours, during which time he

interviewed Appellant, collected background information, and performed intellectual and

[J-1-2015] - 57

personality tests. Id. at 72-73. Dr. Tepper explained that as part of his evaluation of

Appellant, he interviewed Appellant’ mother, and reviewed the police reports for the

crime, Appellant’s school records, and some drug and alcohol treatment records. Id. at

73. Dr. Tepper indicated that Appellant’s full scale IQ is 71, with a verbal scale score of

71 and a nonverbal scale score of 73. Id. at 74. Appellant and his mother informed Dr.

Tepper that Appellant suffered from learning problems, and Appellant’s school records

confirmed that Appellant had academic and behavioral problems beginning in

kindergarten. Id. at 75. The personality testing, along with the interviews, suggested to

Dr. Tepper that Appellant has long standing feeling of inadequacy and inferiority, low

self-esteem, and difficulty expressing himself. Id. at 76. Dr. Tepper explained to the

jury that such problems can cause the sufferer to turn to drugs and alcohol, and may

account for the long standing report and record history of Appellant drug and alcohol

issues. Id. at 76-77. Dr. Tepper explained that because Appellant cannot deal with his

emotions or effectively express himself, he may resort to drugs and alcohol, and when he

gets upset or angry he does not have other resources to deal with that anger in a

controlled fashion. Id. at 77. Dr. Tepper further explained that because of Appellant’s

limited intellectual abilities and his low self-esteem, Appellant’s ability to deal with

problems and interact with other people is already reduced, causing him to react more

impulsively and angrily. Id. at 79. When Appellant is upset, agitated or intoxicated, Dr.

Tepper told the jury, Appellant is even less able to maintain control. Id. at 80. Dr.

Tepper was aware of Appellant’s long standing problems with drugs and alcohol, as

Appellant reported to Dr. Tepper that he began experimenting with marijuana and

anti-anxiety pills as a teenager, and later began using cocaine and PCP. Id. at 83.

[J-1-2015] - 58

In order to convince the jury that it should find aggravating circumstances, the

Commonwealth asserted that Appellant committed the killing in the perpetration of a

felony, that he had a significant history of felony convictions involving the use or threat of

violence, and that he knowingly created a grave risk of death to another person in addition

to the victim when committing the offense. 42 Pa.C.S. § 9711(d)(6)-(7), (9). The

Commonwealth incorporated pertinent guilt phase testimony, including the testimony of

the victim’s mother as to Appellant’s entry into her home and the presence of the victim’s

son, and the testimony of the victim’s son as to where he was and what he observed, and

also incorporated the stipulation as to Appellant’s felony convictions. N.T. 2/16/96 at 41.

At the close of the penalty phase of trial, the jury found two aggravating circumstances

(that Appellant killed the victim while committing a felony, and that he had a significant

history of felony convictions involving the use or threat of violence), but no mitigating

circumstances.

Appellant’s amended PCRA petition specifically faulted trial counsel for failing to

investigate evidence of Appellant’s childhood dysfunction and abuse and his mental

health deficiencies, and for failing to prepare the penalty phase witnesses to testify.

Amended PCRA petition filed 1/25/02 at 37, 41, 42. Although Judge Jones did not

originally grant an evidentiary hearing in this issue, See Order filed 1/19/05, he later

indicated that the hearing would encompass whether trial counsel rendered ineffective

assistance for failing to investigate, develop, and present evidence of Appellant’s mental

health treatments and history of substance abuse. N.T. 11/16/07 at 3; N.T. 11/27/07 at

10. As noted above, Judge Jones was moved to the Federal bench before he was able

to conduct the evidentiary hearing, however, and Judge Sarmina took his place. When

[J-1-2015] - 59

the evidentiary hearing eventually commenced on October 24, 2011, Appellant indicated

to Judge Sarmina that its subject matter had been limited by Judge Jones “to the question

of whether trial counsel was ineffective in failing to present L adequate mental health

testimony and background as it pertains to the mitigators E2 and E3 [that Appellant was

under the influence of extreme mental or emotional disturbance and that his capacity to

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

law was substantially impaired].” N.T. 10/24/11 at 6-7.51

During the evidentiary hearing, Appellant presented expert testimony from Dr.

Robert L. Sadoff, an expert in forensic psychiatry, Dr. Gerald Cooke, an expert in forensic

and neuropsychology, Dr. Richard Restak, an expert in neurology; and Dr. Tepper,

Appellant’s trial expert. Attorney Thomas Moore, Appellant’s trial counsel also testified,

as did Attorney Gerald Stein, Appellant’s direct appeal counsel. Appellant presented lay

testimony from his mother, his uncle, Larry Lawhorn , and his brother, Brian Mason.

Following the evidentiary hearing, the parties submitted post-hearing briefs, and

oral argument occurred on February 13, 2012, at the conclusion of which Judge Sarmina

51 Although Appellant’s PCRA counsel represented to Judge Sarmina that Judge Jones

limited the evidentiary hearing in this regard, N.T. 10/24/11 at 6-7, Appellant now asserts

to this Court that we should remand the matter for consideration of all mitigating evidence,

unconstrained by such limitation, because Judge Sarmina erred in relying on counsel’s

representation. Appellant’s Reply brief filed 2/2/15 at 3. Appellant did not raise this

issue before Judge Sarmina in his February 6, 2012 post-hearing memorandum of law, in

his June 19, 2012 supplemental post-hearing memorandum of law, during the June 22,

2012 oral argument, or in his August 28, 2012 motion for reconsideration. Neither did

Appellant include this allegation in his Rule 1925(b) statement of matters complained of

on appeal, thus it has not been addressed by Judge Sarmina. Further Appellant did not

raise the issue in his original brief but instead waited until he filed his reply brief on

February 2015 to seek remand. He is not entitled to relief on this allegation. Pa.R.A.P.

302(a); Pa.R.A.P. 1925(b).

[J-1-2015] - 60

determined that Appellant had not proven that trial counsel was ineffective for failing to

adequately present mitigating evidence. Appellant then filed a supplemental

post-hearing memorandum of law, and finally, a motion for reconsideration of Judge

Sarmina’s February 13, 2012 denial of relief. Judge Sarmina denied reconsideration on

January 3, 2013. Appellant appealed, and his Appellant’s Rule 1925(b) statement of

matters complained of on appeal alerted the court that Appellant intended to assert that

trial counsel rendered ineffective assistance at the penalty phase of trial for failing to

investigate, develop and present mitigating evidence of Appellant’s “dysfunctional

upbringing and mental health impairments and history of substance abuse, including

evidence of intellectual disability, brain damage, childhood dysfunction, Dysthymia,

attention-deficit/hyperactive disorder, and the psychiatric/psychological impact of drug

abuse,” and that appellate counsel was ineffective for failing to pursue these claims.

Pa.R.A.P. 1925(b) statement, issue 6.

In addressing these allegations, Judge Sarmina acknowledged Appellant’s

insistence that trial counsel’s failure to investigate Appellant’s background prevented

counsel from presenting to the jury the full extent and significance of Appellant’s history of

drug abuse and his mitigating mental impairments. Pa R.A.P. 1925(a) Opinion at 55

(citing Appellant’s Post-Hearing Brief, filed 2/6/2012 at 3). In addressing whether

Appellant has proven trial counsel ineffective in this regard, Judge Sarmina considered

the burden imposed upon counsel with respect to the presentation of mitigation evidence,

examined the evidence that trial counsel actually presented during the evidentiary

hearing, and assessed whether counsel’s course of action was unreasonable.

[J-1-2015] - 61

With regard to counsel’s course of conduct, Judge Sarmina cited the United States

Supreme Court’s indication that “[c]ounsel for a capital defendant has a duty to ‘conduct a

thorough investigation of the defendant’s background.’” Id. at 56 (citing Williams v.

Taylor, 529 U.S. 362, 396 (2000)). Turning to the pronouncements of this Court, Judge

Sarmina quoted the following discussion from Carson,:

The key to our evaluation of counsel’s investigation is not focused on

whether counsel should have presented a mitigation case or specific

evidence, but rather questions whether the investigation supporting

counsel's decision not to present a particular mitigation case or evidence

was reasonable. In evaluating the reasonableness of counsel's

investigation, this Court must remember that counsel’s decisions may

depend heavily on the information that his client provides to him.

Rule 1925(a) opinion at 56 (citing Carson, 590 Pa. at 580, 913 A.2d at 266 (citations

omitted)).

With regard to trial counsel’s performance here, Judge Sarmina concluded that

Appellant has not shown that trial counsel’s course of action was unreasonable, thus

Judge Sarmina opines that trial counsel did not render ineffective assistance and

Appellant is not entitled to relief on this issue. To reach this conclusion, Judge Sarmina

initially noted that trial counsel hired Dr. Tepper for purposes of both the guilt and penalty

phases, and she acknowledges Dr. Tepper’s testimony at the evidentiary hearing that as

part of his evaluation he met first with Appellant and gathered background information

from him January 1995, then met and gathered background information from Appellant’s

mother in February 1995. Id. (citing N.T. 10/25/11 at 95). Judge Sarmina

acknowledges that following Dr. Tepper’s interview with Appellant’s mother, Dr. Tepper

requested that trial counsel provide him with additional school records, mental health

records, and drug treatment records. Id. (citing N.T. 10/25/11 at 100). Dr. Tepper then

[J-1-2015] - 62

interviewed Appellant for a second time and administered psychological testing in March,

1995. Id. (citing N.T. 10/25/11 at 95). Judge Sarmina notes that although Dr. Tepper

did not receive all the records he requested, based on the records he did receive, the

testing he performed, and the information provided by Appellant and his mother, Dr.

Tepper was able to testify at the penalty phase hearing that Appellant was borderline

intellectually disabled, that he had long-standing feelings of inferiority and problems with

drug addiction, and that the cumulative effect of these issues compromised Appellant’s

ability to exercise control over his own behavior. Id. (citing N.T. 2/16/1996 at 74-80).

Judge Sarmina notes Appellant’s current allegation that had trial counsel

uncovered the records requested by Dr. Tepper, Dr. Tepper would have “recommended

neurological testing, testing which ultimately revealed Mr. Mason's organic brain

damage.” Id. (citing Appellant’s Post-Hearing Brief, filed 2/6/2012 at 13). She further

acknowledges Dr. Tepper’s statement during the evidentiary hearing that had he received

“(1) records relevant to [Appellant’s] intellectual functioning, (2) prison records from 1992,

which indicated that [Appellant] suffered head trauma, and (3) Eagleville Hospital records

from 1993 regarding [Appellant’s] drug abuse[,]” he would have referred Appellant to a

neuropsychologist for a neuropsychological evaluation to look into potential or possible

brain dysfunction. Id. at 56-57 (citing N.T. 10/25/2011 at 125-45).

Judge Sarmina explains, however, that she did not credit Dr. Tepper’s testimony

that the receipt of such records would have persuaded him to refer Appellant to a

neuropsychologist. Id. at 57. Specifically, Judge Sarmina reiterates that based on Dr.

Tepper’s evaluation of Appellant, and the information he received from the records

provided and the interviews conducted, Dr. Tepper did not deem it necessary to order

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neuropsychological testing and offered his opinion that Appellant did not exhibit any signs

or symptoms indicative of an underlying major mental illness or disorder. Id. at 57 (citing

N.T. 10/25/11 at 147); see also Letter from Dr. Tepper to trial counsel dated 3/28/95 at 4.

Judge Sarmina opines that none of the additional records presented at the evidentiary

hearing represented new information, i.e. information unknown to Dr. Tepper that would

have altered the conclusion already reached. Rule 1925(a) Opinion at 57. Records

which merely confirmed what Dr. Tepper already knew, could not, in Judge Sarmina’s

opinion, provide a persuasive reason for Dr. Tepper to change his opinion that Appellant

did not exhibit any signs or symptoms indicative of an underlying major mental illness or

disorder. Id. “[A]lthough Dr. Tepper may not have had the physical records in his

possession, he had already reached the conclusions to which he would have been

directed by this data.” Id.

Specifically with regard to Dr. Tepper’s assertion that he would have been alerted

to a possible neuropsychological problem if he had had records relevant to Appellant’s

intellectual functioning and intelligence testing, Judge Sarmina concluded that the data

included in the additional public school records would only have led Dr. Tepper to a

conclusion that he had already reached: “that [Appellant] had been severely limited

intellectually since he was a young child.” Id. at 58 In so determining, Judge Sarmina

specifically found that despite Dr. Tepper’s indication that he learned from the additional

public school records that Appellant had extremely low standardized test scores over a

number of years that evidenced constant attention and concentration difficulties which

might now be considered Attention Deficit Disorder and/or have been brain based, Dr.

Tepper was already aware from his original testing and interviews that Appellant fell

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within the range of borderline intellectual disability, and that Appellant did so poorly in

school that he repeated first grade and was placed in a school for those with learning

disabilities. Id. (citing N.T. 10/25/11 at 131-132, 148-149, 156-158).52 Because the

records pertaining to Appellant’s intellectual function which trial counsel failed to provide

to Dr. Tepper provided only cumulative information to that which he was already aware,

the failure to provide such information does not support a finding that trial counsel

rendered ineffective assistance in this regard. Id.

Neither was Judge Sarmina persuaded that trial counsel rendered ineffective

assistance for failing to obtain prison records indicating that Appellant suffered some kind

of head trauma. Id. at 59. Judge Sarmina points out that as part of Dr. Tepper’s 1995

evaluation he had asked Appellant whether he had suffered any head injuries, but

Appellant did not report any. Id. (citing N.T. 10/25/11 at 111, 177). Judge Sarmina

posits that Appellant’s failure to include the 1992 incidents in the history he relayed to Dr.

Tepper suggests that Appellant did not consider them to be significant. Id. Dr. Sarmina

further opines that it was reasonable for Dr. Tepper and trial counsel to rely on Appellant’s

representations of his history, thus Dr. Tepper did not ask trial counsel to search for

records pertaining to unreported head injuries, and trial counsel cannot be faulted for

failing to initiate such a search on his own. Id.

With regard to trial counsel’s failure to provide Dr. Tepper with records pertaining

to drug treatment Appellant received at Eagleville Hospital in 1993, and Dr. Tepper’s

52 Judge Sarmina additionally notes that during the evidentiary hearing, Dr. Tepper could

not specify which records indicative of Appellant’s low intelligence were in his possession

at the time of trial, and which records were received thereafter. Id. at 58 (citing N.T.

10/25/11 at 150).

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subsequent claim that had he reviewed such reports he would have recommended

neuropsychological testing, Judge Sarmina acknowledges Dr. Tepper’s indication that

the records reflected that Appellant suffered from at least a ten year history of extensive

drug use, Id. (citing N.T. 10/25/11 at 141-142), but Judge Sarmina further points out that

this information was already known to Dr. Tepper as a result of the information provided

by Appellant and his mother that Appellant began using cocaine and other drugs as a

teenager, id. at 60 (citing N.T. 10/25/11 at 165), and that Appellant abused PCP, used

nerve pills, and got high every day from December 1993 through March 1994, id. (citing

N.T. 10/25/11 at 165-166). As such, Judge Sarmina finds incredible the notion that Dr.

Tepper would have changed his opinion if he had reviewed this additional but cumulative

information regarding Appellant’s history of drug abuse. Id.

Judge Sarmina thus concludes that had Dr. Tepper been privy to the records

introduced at the evidentiary hearing, Dr. Tepper would have been confronted with nearly

the same information that he already had. Id. None of the information elicited during

the evidentiary hearing revealed a previously unknown aspect of Appellant’s life--it

merely confirmed Dr. Tepper’s prior findings to be substantially accurate and

complete--that Appellant was a borderline intellectually disabled offender, who struggled

academically throughout his life and abused serious drugs dating back to his teenage

years. Id. Judge Sarmina observes that based on Dr. Tepper’s accurate assessment

of Appellant’s condition and addictions, Dr. Tepper had reasonably concluded that there

was no need to refer Appellant for neuropsychological testing. Id. Judge Sarmina

concludes that as Dr. Tepper’s analysis of Appellant was based on sufficient information,

it was entirely reasonable for trial counsel to rely on Dr. Tepper’s determination that

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neuropsychological testing was unnecessary. Id. at 60 (citing Bracey, 795 A.2d at

942-43 (“[C]ounsel was not required to disregard the findings of his expert and continue to

consult experts, at the expense of limited judicial resources, until he found one willing to

testify that Appellant was organically brain damaged . . .”).

In addition to finding that Appellant failed to prove the second prong of the

Strickland/Pierce analysis, Judge Sarmina further determines that even assuming,

arguendo, that trial counsels’ decision not to send Appellant for a neuropsychological

evaluation was entirely unreasonable, Appellant still failed to demonstrate that he was

prejudiced by the absence of testimony that he suffered from organic brain damage. Id.

at 61 n.30. Acknowledging the directive that to assess prejudice in the context of a claim

of ineffective representation as to a penalty phase mitigation investigation, the court must

“‘consider the totality of the available mitigation evidence — both that adduced at trial,

and the evidence adduced in the habeas proceeding — and reweigh it against the

evidence in aggravation,’” Judge Sarmina notes that here, the strongest, most persuasive

mitigation evidence available to Appellant was, in fact, presented during the penalty

phase through Dr. Tepper’s testimony that the combination of Appellant’s low intelligence

and use of drugs significantly impacted his ability to control his impulses. Id. (citing

Sears v. Upton, 561 U.S. 945, 955-56, 130 S.Ct. 3259, 3266-67, 177 L.Ed.2d 1025

(2010); N.T. 2/16/1996 at 78-79). Judge Sarmina suggests that the fact that the jury did

not find Appellant’s lack of impulse control, borne out of drug use and low intelligence, to

rise to the level of a mitigating circumstance indicates that other, less convincing evidence

would not have persuaded the jurors to find a mitigating circumstance, and she reiterates

that she had credited Dr. Barry Gordon's opinion that: (1) Appellant’s ability to appreciate

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the criminality of his conduct or to conform his conduct to the requirements of law was not

substantially impaired by his neuropsychological condition or substance abuse, and (2)

that Appellant did not suffer from a mental or emotional disturbance so extreme that he

could not control his behavior. Id. (citing N.T. 10/27/2011 at 38-39). Judge Sarmina

observes that Dr. Gordon based his evaluation on the totality of Appellant’s actions at the

time of the murder, and that she specifically found Dr. Gordon’s reasoning to be sound.

Id. (citing N.T. 10/27/11 at 45-46).

Judge Sarmina thus concludes that the original evidence of mitigation presented

during the penalty phase, and the additional evidence of mitigation presented during the

post-conviction evidentiary hearing, would not have persuaded a jury to find a mitigating

circumstance, thus petitioner was not prejudiced by the failure to present such evidence.

Id.

Our relevant standard of review is well-settled:

In evaluating an ineffectiveness claim alleging counsel's failure to

investigate and present mitigation evidence in a capital case, “we consider

a number of factors, including the reasonableness of counsel's

investigation, the mitigation evidence that was actually presented, and the

additional or different mitigation evidence that could have been presented.”

[Commonwealth v. Lesko, 609 Pa. 128, __, 15 A.3d 345, 380 (2011)];

Commonwealth v. Collins, 585 Pa. 45, 888 A.2d 564, 580 (2005). None of

the aforementioned factors is, by itself, dispositive, because even if

counsel's investigation is deemed unreasonable, the defendant is not

entitled to relief unless the defendant demonstrates that prejudice resulted

from counsel's conduct. Id.

Tharp, ___ Pa. at ___, 101 A.3d at 764 (2014). Furthermore:

Strategic choices made following a less than complete investigation are

reasonable precisely to the extent that reasonable professional judgment

supports the limitation of the investigation. []Bridges, 584 Pa. at [ ---], 886

A.2d [at] 1132 [ ] (citing Commonwealth v. Fears, 575 Pa. 281, 836 A.2d 52,

72 (2003)). Our evaluation of counsel's performance is, however, highly

deferential, and the reasonableness of counsel's decisions cannot be

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based upon the distorting effects of hindsight. Id. Furthermore,

“reasonableness in this context depends, in critical part, upon the

information supplied by the defendant.” Bridges, 886 A.2d at 1132 (citing,

Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373, 383 (1986)).

Commonwealth v. Rega, 593 Pa. 659, 708, 933 A.2d 997, 1025-26 (2007). Finally:

In making this determination, the PCRA court is “to develop a specific

comparison of the mitigation case offered at trial with the credited evidence

offered on post-conviction review....” Commonwealth v. Beasley, 600 Pa.

458, 967 A.2d 376, 391 (2009); Commonwealth v. Gibson, 597 Pa. 402,

951 A.2d 1110, 1123 (2008) (“Gibson I ”) (same). In reviewing the PCRA

court's determination, “we reweigh the evidence in aggravation against the

totality of available mitigating evidence, which includes the evidence

presented at the penalty hearing and the evidence that would have been

presented had counsel conducted a proper investigation.” Gibson II, 19

A.3d at 526; see also Lesko, 15 A.3d at 384–85 (emphasizing that

Strickland prejudice in this context requires consideration of context of

case, including gravity of aggravating circumstances and strength of

mitigating circumstances found by jury).

Commonwealth v. Watkins, ___ Pa. ___,108 A.3d 692, 713 (2014) (per curiam).

The reasonableness of counsel’s investigation into potentially mitigating evidence

may depend upon the information provided by defendant, “and counsel cannot be

deemed ineffective for not introducing information uniquely within the knowledge of the

defendant and his family which is not supplied to counsel.” See Commonwealth v.

Williams, 577 Pa. 473, 485, 846 A.2d 105, 113 (2004) (citing Commonwealth v. Bond,

572 Pa. 588, 609-610, 819 A.2d 33, 45-46 (2002)). Nor may a determination of

ineffective assistance of counsel be founded upon counsel’s failure to present mitigating

evidence that would have been cumulative of evidence presented at the penalty phase.

Commonwealth v. Mitchell, ___ Pa. ___, 105 A.3d 1257, 1286 (2014) (refuting merit to

argument that even more details of defendant’s alcoholism would have persuaded jury to

accept his diminished capacity defense).

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In addition to denying relief on the grounds stated in footnote 51, supra, our

comprehensive review of both the record and governing jurisprudence leads us to adopt

the probing, well-reasoned opinion of Judge Sarmina discerning no merit to any of

Appellant’s ineffectiveness claims. Accordingly, Appellant’s claim fails.

Claim 5. Whether Mr. Mason is Entitled to a New Sentencing Hearing

Because the Trial Court Impermissibly Curtailed the Questioning

of Defense Psychologist Allan Tepper and Whether Counsel were

Ineffective for Failing to Properly Litigate this Issue.

During the penalty phase of trial, Dr. Tepper testified that Appellant suffered from

personality and intellectual deficits, and was asked to explain to the jury the effect those

deficits, combined with Appellant’s long term drug use, would have on Appellant’s ability

to control his behavior. N.T. 2/16/96 at 79. Following Dr. Tepper’s response, which

indicated that Appellant’s ability to control his behavior was limited by these factors, trial

counsel inquired: “Is it possible that the defendant in a situation might be able to form the

specific intent to kill while not being able to control his conduct?” Id. at 80. The

Commonwealth objected, and Judge Jones sustained the objection. Id. Appellant

now asserts before this Court that it was error to sustain the Commonwealth’s objection

to this question, and further that following the objection, his trial counsel should have

argued to the court that the answer would properly be before the jury because it would

have been permissible evidence in support of the statutory mitigating factor of

substantially impaired capacity (Section 9711(e)(3)). 53 Id. Additionally, Appellant

53 Appellant asserts that if allowed to answer the question, Dr. Tepper would have

responded that “at the time of the killing, [Appellant] would have “been unable to conform

his conduct to the requirements of the law.” Appellant’s brief at 56 (citing NT 2/16/96 at

80).

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claims, appellate counsel rendered ineffective assistance for failing to raise trial

counsel’s error. Id. at 57.

As with the second and third issues raised by Appellant’s brief to this Court,

Appellant did not raise this allegation in his amended PCRA petition, but instead included

it in his “Petitioner’s Supplement and Response in Opposition to the Commonwealth’s

Motion to Dismiss and Reply in Support of his Motion for Relief pursuant to Atkins v.

Virginia,” filed on November 10, 2003. Also as with those previous issues, the

Commonwealth asserts that this allegation has been waived for failure to include it in a

court approved supplement/amendment. Commonwealth’s brief at 36 (citing Reid, ___

Pa. at ___, 99 A.3d at 484; Elliott, 622 Pa. at 261, 80 A.3d at 430)).

Appellant does not point to the location in the record where the PCRA court

granted him permission to supplement/amend his request for post-conviction relief to

include this claim, and as with the prior issues he does not dispute that he did not obtain

permission to amend his PCRA petition, but instead asserts via his February 2, 2015 reply

brief that he was prevented from curing this deficiency by the PCRA court’s failure to

provide proper Rule 909 notice. For the reasons expressed with regard to the previous

issues, we find that this issue has not been preserved for our review.

Claim 6. Whether the Trial Court’s Failure to Instruct the Jury that “Life

Imprisonment” Means Life Without Possibility of Parole Violated

Appellant’s Rights Under the Sixth, Eighth and Fourteenth

Amendments to the United States Constitution and Whether Trial

Counsel was Ineffective for Failing to Request the Instruction and

Appellate Counsel was Ineffective for Failing to Raise the Issue

and Prior Counsel’s Ineffectiveness.

Appellant presented this issue in his amended PCRA petition, which argued in

pertinent part that such a penalty phase instruction was required under Simmons v. South

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Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed. 133 (1994), because Appellant’s future

dangerousness had been put at issue by (1) the introduction during the guilt phase of trial

evidence of Appellant’s prior assault on the victim and his criminal history, (2) the

prosecutor’s statement during his guilt phase closing argument that the evidence showed

that Appellant had “occasions of violence,” and (3) the statement in the prosecutor’s

penalty phase closing argument that Appellant had a “history of violence.” Amended

PCRA petition filed 1/25/02 at 59, 61 (citing N.T. 2/9/96 at 59-66, 92-99; N.T. 2/14/96 at

97, N.T. 2/16/96 at 110, 112).54 Appellant reiterated these claims in his “Motion for

Reconsideration and Supplemental Post-Hearing Memorandum of Law,” which

additionally argued that on cross-examination of Dr. Tepper, the prosecution elicited

testimony that Appellant was “someone, who when angry, can and might respond with

violence,” and asked if Appellant “might become very violent” and “respond with

violence.” “Motion for Reconsideration and Supplemental Post-Hearing Memorandum

of Law” filed 8/28/12 at 10-11.

54 In Simmons, a plurality of the United States Supreme Court held that “where the

defendant's future dangerousness is at issue, and state law prohibits the defendant's

release on parole, due process requires that the sentencing jury be informed that the

defendant is parole ineligible.” Simmons, 512 U.S. at 156, 114 S.Ct. at 2190.

This Court considered the proper scope of Simmons in Commonwealth v.

Speight, 544 Pa. 451, 677 A.2d 317 (1996), cert. denied, 519 U.S. 1119,

117 S.Ct. 967, 136 L.Ed.2d 852 (1997). There, the defendant argued that

his trial counsel had been ineffective for failing to request a jury instruction

that a life sentence means that he must spend his natural life in prison

without the possibility of parole after the jury had asked the trial court for the

definition of a life sentence. We held that under Simmons, a jury must be

informed that life means life without the possibility of parole only when the

prosecutor injects concerns of the defendant's future dangerousness into

the case. In Speight, the prosecutor had not made the defendant's future

dangerousness an issue; therefore, no Simmons instruction was required.

Commonwealth v. May, 551 Pa. 286, 291, 710 A.2d 44, 47 (1998).

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Oral argument on this issue was conducted before Judge Sarmina on January 3,

2013. Judge Sarmina denied Appellant relief on the issue based on this Court’s

determination in Commonwealth v. Fisher, 559 Pa. 558, 741 A.2d 1234 (1999). N.T.

1/3/13 at 28.55

Judge Sarmina’s Rule 1925(a) opinion addresses the three instances alleged to

put Appellant’s “future dangerousness” at issue, Rule 1925(a) opinion at 36 (citing N.T.

2/14/96 at 97; 2/16/96 at 110, 112), and explains that at the time of Appellant’s trial,

then-controlling law required that trial courts provide a Simmons instruction only when the

defendant’s "future dangerousness" was "expressly implicated." Id.56

55 The appellant in Fisher asserted that the trial court erred in refusing to permit defense

counsel to argue, pursuant to Simmons “that a sentence of ‘life imprisonment’ in

Pennsylvania means that Appellant would spend the rest of his life in prison without the

possibility of parole” after the prosecutor’s closing argument (1) quoted from a prison

psychological evaluation report that indicated that “[s]adistic and hostile impulses are

suspected with rigid personality features and a potential for explosive action,” and (2)

queried “I wonder if after tomorrow he'll remain a good guy in prison when it no longer

matters? It won't do him any good after tomorrow.” Fisher, 559 Pa. at 577-

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