# Commonwealth v. Mason, L., Aplt > Supreme Court of Pennsylvania · December 29, 2015 · 634 Pa. 359 URL: https://www.frixlaw.com/law-library/cases/3166634 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellee v. Lenwood MASON, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** December 29, 2015 - **Citations:** 634 Pa. 359; 130 A.3d 601; 2015 Pa. LEXIS 3191; 2015 WL 9485173 - **Precedential status:** Published - **Opinion:** Opinion - **Judges:** Saylor, Eakin, Baer, Todd, Stevens - **Cited by:** 624 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3166634 ## How later opinions describe it (automated extraction) - explaining that, “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 existe… - stating: “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” - concluding that Mason waived a claim that he raised for the first time in his response to the Commonwealth’s motion to dismiss, where Mason failed to point to where he sought, and was granted, the PCRA court’s permission to amend his petition to include the claim - stating: “What our jurisprudence has consistently prohibited at both trial and appellate levels when strategic disagreements arise between defendant and counsel is the option of hybrid representation, where an otherwise represented defendant acts as de facto co-counsel exercis… - stating that, the question is not whether there were other more logical courses of action which trial counsel could have pursued but, rather, whether trial counsel’s decisions had any reasonable basis ## Opinion text [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. [J-1-2015] - 13 “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). [J-1-2015] - 15 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 [J-1-2015] - 37 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 d [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3166634. Public record. Not legal advice.