Commonwealth v. Vandivner, J., Aplt.

[J-39-2016]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 696 CAP

:

Appellee : Appeal from the Order of the Court of

: Common Pleas of Fayette County,

: Criminal Division, entered on January

v. : 17, 2014 at No. CP-26-CR-0001229-

: 2004.

:

JAMES W. VANDIVNER, : SUBMITTED: February 10, 2016

:

Appellant :

OPINION

JUSTICE TODD DECIDED: February 5, 2018

This capital case, wherein Appellant James VanDivner appeals the Fayette

County Court of Common Pleas’ denial of his petition for relief under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, is before this Court following

two remands to the PCRA court for supplemental opinions. In response to the PCRA

court’s second supplemental opinion, Appellant requested, and was granted, permission

to file a supplemental brief, and thereafter did so. Although also permitted to do so, the

Commonwealth did not file a brief in response. See infra, note 11. For the reasons that

follow, we conclude that Appellant is intellectually disabled, and, thus, ineligible for the

death penalty under Atkins v. Virginia, 536 U.S. 304 (2002) (holding the Eighth

Amendment to the United States Constitution prohibits imposition of the death penalty

upon intellectually disabled criminals). Accordingly, we vacate his judgment of sentence

of death and direct that his judgment of sentence be modified to reflect the imposition of

a life sentence on his first-degree murder conviction, subject to appellate review of his

remaining guilt phase and sentencing claims. Moreover, as this matter is now a non-

capital case, we transfer this appeal to the Superior Court for disposition of these

remaining claims.

I. Background

In July 2004, Appellant fatally shot his fiancée, Michelle Cable. We summarized

the facts surrounding the murder in our opinion on Appellant’s direct appeal:

Jessica Cable and her mother Michelle Cable lived at

100 East Second Street, Grindstone, Fayette County. On

July 5, 2004, Jessica was babysitting at a neighbor's home.

Between 8:30 and 9:00 p.m., Jessica saw [A]ppellant driving

in the direction of her home and immediately ran home.

When she arrived, she saw [A]ppellant get out of his vehicle

and walk to the back porch of her home. As Jessica

followed, [A]ppellant entered the home through the back

door and, while walking through the home, encountered a

family friend, Larry Newman, in the living room. Appellant

asked Larry where Michelle was, and Larry pointed to the

front door. Appellant then opened the door and walked onto

the sun porch.

On the steps leading to the sun porch from the

outside, [A]ppellant met Michelle and her son, Billy Cable. As

[A]ppellant walked onto the porch, Billy told him, “Dude, get

off my property.” Notes of Testimony (“N.T.”), 2/7/07, at 36.

Appellant then pointed a gun at Michelle, at which point, Billy

pounced on [A]ppellant in an attempt to wrestle the gun from

his hand. Appellant managed to keep the gun and pointed it

at Larry Newman's head. Larry's relative, Kenneth Newman,

then rushed [A]ppellant, and the gun fired. Appellant, who

still had the gun, walked quickly to Michelle and told her he

was going to kill her. He grabbed her by the hair, shot her in

the head, and, as she fell to the ground, stated, “There, you

bitch, I said I was going to kill you.” Id. at 39. Appellant

smiled and walked away. A motorist who was passing by

saw [A]ppellant grab Michelle by the hair and shoot her in

the head.

[J-39-2016] - 2

Meanwhile, after unsuccessfully attempting to take

the gun from [A]ppellant, Billy had gone inside the home to

look for a weapon to protect his family. When he was unable

to find a weapon, he left the home. As he stepped off the

back porch, Billy saw [A]ppellant walking toward him with the

gun in his hand. Appellant pointed the gun at Billy, who

turned to run away. Appellant shot Billy in the neck and then

left the scene. Police subsequently apprehended [A]ppellant

in a field and recovered a Jennings J22 handgun. As

[A]ppellant was being taken into an interview room at the

Pennsylvania State Police barracks, he blurted out to

Trooper James Monkelis, “This is a death penalty case and I

don't want the needle, life for a life. Tell the DA I will plead

guilty to life. I would have killed myself if I knew Michelle was

dead.” N.T., 2/8/07, at 255.

Commonwealth v. VanDivner, 962 A.2d 1170, 1173-74 (Pa. 2009) (“VanDivner I”).

Prior to trial, Appellant filed a motion to preclude the Commonwealth from

seeking the death penalty, contending he is intellectually disabled1 per Atkins and, thus,

that imposition of the death penalty would constitute cruel and unusual punishment.

The trial court conducted a four-day hearing, after which it determined that Appellant

failed to establish that he was intellectually disabled. Specifically, the trial court

observed that, under Commonwealth v. Miller, 888 A.2d 624 (Pa. 2005), an individual is

intellectually disabled for purposes of the Eighth Amendment if he demonstrates (1)

limited intellectual functioning; (2) significant adaptive limitations; and (3) onset prior to

age 18. Concluding that Appellant failed to demonstrate that his intellectual disabilities

1

Previously, the term “mental retardation” was commonly utilized by the professional

community and courts in discussing Atkins challenges. However, in Hall v. Florida, 134

S.Ct. 1986, 1990 (2014), the high Court recognized that the preferred term is

“intellectual disability.” Accordingly, in this opinion, we will use the term “intellectual

disability,” unless we are quoting from other sources. See Commonwealth v. Bracey,

117 A.3d 270, 271 n.1 (Pa. 2015).

[J-39-2016] - 3

manifested prior to age 18 − the third prong − the court declined to make a

determination of whether the other two Miller prongs were established.

The jury convicted Appellant of first-degree murder for the death of Michelle;

criminal attempt to commit criminal homicide with respect to Billy; and the aggravated

assault of Larry Newman.2 At the conclusion of the penalty hearing, the jury found two

aggravating circumstances: (1) in the commission of the offenses, Appellant knowingly

created a grave risk of death to another person in addition to the victim; 3 and (2)

Appellant had a significant history of felony convictions involving the use or threat of

violence.4 The jury found one mitigating circumstance related to Appellant’s character

and the circumstances of his offense (the “catchall” mitigator),5 but concluded the

aggravating circumstances outweighed the mitigating circumstance, and recommended

a sentence of death. On February 12, 2007, the trial court formally imposed a death

sentence on the murder conviction, and consecutive terms of 20 to 40 years

imprisonment for attempted homicide and 10 to 20 years imprisonment for aggravated

assault.

This Court affirmed Appellant’s judgment of sentence on January 23, 2009.

VanDivner I, supra. In so doing, we rejected Appellant’s challenges to the sufficiency

and weight of the evidence, several of the trial court’s evidentiary rulings, and the trial

court’s determination that Appellant was not intellectually disabled per Atkins.

On July 20, 2010, Appellant filed a pro se PCRA petition. Following the

appointment of counsel, amended petitions were filed on May 25, 2012 and October 17,

2012, wherein Appellant raised numerous issues relating to, inter alia, the weight of the

2

Appellant was represented at trial and on direct appeal by Susan Ritz Harper, Esquire.

Appellant was represented at the penalty phase of his trial by Dianne Zerega, Esquire.

3

42 Pa.C.S. § 9711(d)(7).

4

42 Pa.C.S. § 9711(d)(9).

5

42 Pa.C.S. § 9711(e)(8).

[J-39-2016] - 4

evidence, the prosecutor’s alleged misconduct, the trial court’s evidentiary rulings, the

trial court’s jury instructions, counsel’s alleged ineffectiveness, and his mental capacity.

Following four days of hearings,6 the PCRA court denied Appellant relief on January 17,

2014, and Appellant filed an appeal with this Court.

On appeal, we observed that Appellant raised claims pertaining to his pre-trial,

guilt, and penalty-phase proceedings. However, noting that our resolution of Appellant’s

assertion, set forth as an ineffectiveness claim, that he was ineligible for the death

penalty under Atkins and Miller would dictate our review of Appellant’s remaining

claims,7 we addressed that issue first. Following an extensive review of the record, this

Court determined that the PCRA court’s factual finding that Appellant failed to establish

that his intellectual disabilities existed prior to the age of 18 was not supported by

substantial evidence, and, therefore, that Appellant established that this underlying

claim of his ineffectiveness assistance of counsel claim had arguable merit. 8 Thus, on

December 29, 2015, we vacated the PCRA court’s order and, retaining jurisdiction,

remanded the matter to the PCRA court for a supplemental opinion, specifically stating:

[I]n order to prevail on a claim of ineffectiveness under the

PCRA, a petitioner must also establish that no reasonable

basis existed for counsel’s action or failure to act, and that

the petitioner suffered prejudice as a result of counsel’s

error, with prejudice measured by whether there is a

6

Hearings were conducted on October 24, 2012; November 16, 2012; January 30,

2013; and February 28, 2013. The Honorable Gerald R. Solomon presided over

Appellant’s trial and PCRA proceedings.

7

See Commonwealth v. Gibson, 925 A.2d 167, 171 (Pa. 2007) (non-capital cases are

within the jurisdiction of the Superior Court).

8

For a detailed discussion of the evidence establishing that Appellant’s intellectual

disabilities existed prior to the age of 18, including, inter alia, school records indicating

Appellant’s IQ test scores, student records demonstrating Appellant’s placement in

special education classes, and expert testimony regarding state regulations for

placement in special education, see Commonwealth v. VanDivner, 130 A.3d 676 (Pa.

2015) (“VanDivner II”).

[J-39-2016] - 5

reasonable probability that the result of the proceeding

would have been different. [Commonwealth v. Pierce, 786

A.2d 203, 213 (Pa. 2001)]. The PCRA court, having

concluded Appellant’s claim did not have arguable merit, did

not address these two additional prongs of the

ineffectiveness analysis.

Accordingly, we vacate the PCRA court’s order and

remand this matter to the PCRA court for preparation of a

supplemental opinion addressing whether any reasonable

basis existed for trial counsel’s failure to investigate the state

regulations pertaining to special-education placement which

existed when Appellant was a student; failure to seek

additional school records for Appellant and his siblings after

initially receiving only Appellant’s attendance record for the

1964-1965 school year; and failure to present the testimony

of Dr. Sheetz, the individual responsible for special

education placement at the time Appellant was a student.

Additionally, because a petitioner seeking relief under

the PCRA must demonstrate prejudice by showing there is a

reasonable probability that the result of the proceeding

would have been different, the PCRA court must also

consider whether, by demonstrating that his intellectual

disabilities existed prior to age 18, Appellant’s petition to

preclude imposition of the death penalty pursuant to Atkins

and Miller would have been granted. In making this

determination, the PCRA court must address the first and

second prongs of Miller, and, specifically, should consider

and address Appellant’s claim that trial counsel was

ineffective for failing to introduce evidence that an

intellectually disabled individual could pass the non-written

[Commercial Driver’s License (“CDL”)] test after extended

study, as this claim is relevant to the second prong of Miller

— limitations in adaptive behavior.

VanDivner II, 130 A.3d at 696. Chief Justice Saylor filed a concurring opinion,

expressing his reservation with respect to evaluating Appellant’s Atkins/Miller claim

within the construct of an ineffectiveness of counsel claim, including whether such a

claim could ever be dismissed on reasonable strategy grounds.

On January 12, 2016, the PCRA court issued a 2-page opinion concluding,

without discussion of the specific lapses identified by this Court, that trial counsel had

[J-39-2016] - 6

no reasonable basis for failing to present evidence that Appellant’s intellectual

disabilities manifested prior to age 18. The court further opined:

[N]o greater prejudice can exist as to VanDivner than this

Court’s rulings that he was eligible for the imposition of the

death penalty, when as a matter of law the Supreme Court of

Pennsylvania has in essence ruled that he is not so eligible.

PCRA Court Opinion, 1/12/16, at 2.

Finding that the PCRA court misapprehended our opinion and remand

instructions,9 on April 25, 2016, this Court, again retaining jurisdiction, remanded the

matter to the PCRA court for a second supplemental opinion, specifically directing the

PCRA court to assess whether Appellant presented sufficient evidence at his pretrial

hearing to prove the first and second prongs of Miller, and, if it concluded that he did

not, to consider the additional evidence presented at the PCRA hearing − specifically,

the evidence that an intellectually disabled individual could pass the non-written CDL

test after extended study.10 We explained that, if the PCRA court found the additional

evidence presented at the PCRA hearing persuasive, the court then must consider and

9

Contrary to the PCRA court’s statement, in our December 29, 2015 Opinion, we did

not hold that Appellant was ineligible for the death penalty. Rather, we determined that

the evidence presented at Appellant’s PCRA hearing established the third Miller prong −

that Appellant’s intellectual disabilities manifested prior to age 18. Furthermore,

notwithstanding our instructions, the PCRA court failed to consider, as required in

determining whether counsel’s failure to present evidence of the pre-18 age of onset

prejudiced Appellant, whether Appellant presented sufficient evidence at his pretrial

hearing to prove the first and second prongs of Miller − limited intellectual functioning

and significant adaptive limitations.

10

Following the issuance of the PCRA court’s opinion, on January 26, 2016, Appellant

filed an application for relief, requesting that this Court: (1) vacate the death sentence

and impose a life sentence; and (2) decide the remaining guilt-phase issues without

remanding them for consideration by the Superior Court. In light of our remand of the

matter for a second supplemental opinion, we denied Appellant’s application for relief

without prejudice to refile his application after the PCRA court’s second supplemental

opinion was filed.

[J-39-2016] - 7

address Appellant’s claim that trial counsel had no reasonable basis for failing to

introduce such evidence at the pretrial hearing.

On December 8, 2016, the PCRA court issued a second supplemental opinion,

concluding that Appellant presented sufficient evidence at the pretrial hearing to

establish that his IQ was less than 70, thereby establishing the first prong of Miller.

However, based on the evidence introduced at the pretrial hearing and the additional

evidence presented at the PCRA hearing, the court concluded Appellant failed to

establish that he has significant adaptive limitations, as required under the second

prong of Miller.

On February 2, 2017, Appellant filed a request for permission to submit a

supplemental brief in response to the PCRA court’s December 8, 2016 supplemental

opinion. This Court granted Appellant’s request, and allowed the Commonwealth 30

days in which to respond to Appellant’s brief. Appellant filed a supplemental brief on

April 10, 2017, and, on June 21, 2017, the Commonwealth filed a letter indicating it

would not be filing a responsive brief, which, by that time, would have been untimely.11

Accordingly, the matter is once again ripe for our review.

II. Analysis

Preliminarily, in order to qualify for relief under the PCRA, a petitioner must

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

from one or more of the enumerated errors in 42 Pa.C.S. § 9543(a)(2); that his claims

11

In its no-answer letter, the Fayette County District Attorney states: “although the

Commonwealth does object to the Superior Court granting Petitioner’s Petition for

Allowance of Appeal, the Commonwealth will not be filing Brief in Opposition.”

Commonwealth’s No-Answer Letter, 6/21/17. Although the District Attorney refers to

the Superior Court, rather than this Court, and suggests that the instant case involves a

petition for allowance of appeal, when, in fact, it is a direct capital PCRA appeal, we will

presume that the Commonwealth does, indeed, intend to waive its right to file a

responsive brief in this matter.

[J-39-2016] - 8

have not been previously litigated or waived; and that the failure to litigate the issue

prior to or during trial or on direct appeal could not have been the result of any rational,

strategic, or tactical decision by counsel. Id. § 9543(a)(3), (a)(4).

Additionally, to obtain relief under the PCRA based on a claim of ineffectiveness

of counsel, a PCRA petitioner must satisfy the performance and prejudice test set forth

in Strickland v. Washington, 466 U.S. 668 (1984). In Pennsylvania, we have applied the

Strickland test by requiring a petitioner to establish that: (1) the underlying claim has

arguable merit; (2) no reasonable basis existed for counsel’s action or failure to act; and

(3) the petitioner suffered prejudice as a result of counsel’s error, with prejudice

measured by whether there is a reasonable probability that the result of the proceeding

would have been different. Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001).

Counsel is presumed to have rendered effective assistance, and, if a claim fails under

any required prong of the Strickland test, the court may dismiss the claim on that basis.

Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).

In reviewing the denial of PCRA relief, we examine whether the PCRA court’s

determination is “supported by the record and free of legal error.” Commonwealth v

Rainey, 928 A.2d 215, 223 (Pa. 2007). With respect to a PCRA court’s determination

as to whether a petitioner is intellectually disabled under Miller, this Court’s review

involves a mixed question of law and fact:

A question involving whether a petitioner fits the definition of

[intellectual disability] is fact intensive as it will primarily be

based upon the testimony of experts and involve multiple

credibility determinations. Accordingly, our standard of

review is whether the factual findings are supported by

substantial evidence and whether the legal conclusion drawn

therefrom is clearly erroneous. We choose this highly

deferential standard because the court that finds the facts

will know them better than the reviewing court will, and so its

[J-39-2016] - 9

application of the law to the facts is likely to be more

accurate.

VanDivner II, 130 A.3d at 693 (quoting Bracey, 117 A.3d at 273).

As we explained in our prior opinion in this matter, this Court, in Miller, set forth

the requirements for establishing that an individual is intellectually disabled under

Atkins. In Miller, we considered the definition of intellectual disability used by the

American Association of Mental Retardation (“AAMR”), now the American Association

on Intellectual and Developmental Difficulties (“AAIDD”), and the American Psychiatric

Association (“APA”) standard set forth in the Diagnostic and Statistical Manual of Mental

Disorders (4th ed. 1992) (“DSM–IV”). The AAIDD defines intellectual disability as a

“disability characterized by significant limitations both in intellectual functioning and in

adaptive behavior as expressed in the conceptual, social, and practical adaptive skills.”

Miller, 888 A.2d at 629-30 (quoting Mental Retardation: Definition, Classification, and

Systems of Supports 1 (10th ed. 2002)). The APA’s definition, as set forth in the DSM–

IV, defines “mental retardation” as “significantly subaverage intellectual functioning (an

IQ of approximately 70 or below) with onset before age 18 years and concurrent deficits

or impairments in adaptive functioning.” Id. at 630 (quoting DSM-IV at 37).

We observed in Miller that the above definitions share three concepts: limited

intellectual functioning, significant adaptive limitations, and onset prior to age 18.

Regarding the concept of limited intellectual functioning, we explained:

Limited or subaverage intellectual capability is best

represented by IQ scores, which are approximately two

standard deviations (or 30 points) below the mean (100).

The concept should also take into consideration the standard

error of measurement (hereinafter “SEM”) for the specific

assessment instruments used. The SEM has been

estimated to be three to five points for well-standardized

measures of general intellectual functioning. Thus, for

example, a subaverage intellectual capability is commonly

[J-39-2016] - 10

ascribed to those who test below 65-75 on the Weschler

scales.

Id. (citations omitted).

Recognizing that, pursuant to both the AAIDD and DSM-IV, a low IQ score is not,

in and of itself, sufficient to support a classification of intellectually disabled, we

considered the factors relevant to the second prong − the existence of limitations in

adaptive behavior:

Adaptive behavior is the collection of conceptual, social, and

practical skills that have been learned by people in order to

function in their everyday lives, and limitations on adaptive

behavior are reflected by difficulties adjusting to ordinary

demands made in daily life. The [AAIDD] recommends that

such limitations should be established through the use of

standardized measures. “On these standardized measures,

significant limitations in adaptive behavior are operationally

defined as performance that is at least two standard

deviations below the mean of either (a) one of the following

three types of adaptive behavior: conceptual, social, or

practical, or (b) an overall score on a standardized measure

of conceptual, social, and practical skills.”

Id. at 630-31 (citations and footnote omitted).

This Court in Miller did not discuss at length the third concept − age of onset −

stating, “[w]e see no need to explore the concept of age of onset further, since this

requirement is self explanatory and both the [AAIDD] and the DSM-IV require that the

age of onset be before age 18.” Id. at 630 n.7.

In sum, we stated:

What is clear from the above is that [the AAIDD and the

DSM-IV] definitions are very similar and diagnosis under

either system of classification takes into account like

considerations. Therefore, we hold that a PCRA petitioner

may establish his or her mental retardation under either

classification system and consistent with this holding,

assuming proper qualification, an expert presented by either

[J-39-2016] - 11

party may testify as to mental retardation under either

classification system. Moreover, consistent with both of

these classification systems, we do not adopt a cutoff IQ

score for determining mental retardation in Pennsylvania,

since it is the interaction between limited intellectual

functioning and deficiencies in adaptive skills that establish

mental retardation.

Id. at 631.

In the case sub judice, the PCRA court has acknowledged that the evidence

demonstrates that Appellant’s IQ is less than 70, establishing the first prong of Miller.

Further, this Court previously held that, notwithstanding the PCRA court’s prior

conclusion to the contrary, the evidence established that Appellant’s intellectual

disability existed prior to the age of 18, thereby establishing the third prong of Miller.

VanDivner II, 130 A.3d at 695. Thus, the sole remaining inquiry in determining whether

Appellant is intellectually disabled under Miller is whether Appellant suffers from

significant limitations in adaptive behavior − the second prong of Miller. In the instant

case, and as will become evident below, Appellant’s ability to obtain a CDL has been a

significant focus in this determination.

As noted above, the AAIDD defines adaptive behavior as “the collection of

conceptual, social, and practical skills that have been learned and are performed by

people in their everyday lives.” Intellectual Disability: Definition, Classification, and

Systems of Supports 15 (11th ed. 2010). Conceptual skills include language; reading

and writing; and money, time, and number concepts. Practical skills relate to the

activities of daily living, including personal care; occupational skills; health care;

travel/transportation; schedules and routines; safety; use of money; and use of the

telephone. Finally, social skills include interpersonal skills; social responsibility; self-

esteem; gullibility; naiveté; social problem solving; the ability to follow rules and obey

[J-39-2016] - 12

laws; and the ability to avoid being victimized. Id. at 44; see also Miller, 888 A.2d at 630

n.8.12

The AAIDD offers that “[a] comprehensive assessment of adaptive behavior will

likely include a systematic review of the individual’s family history, medical history,

school records, employment records (if an adult), other relevant records and

information, as well as clinical interviews with a person or persons who know the

individual well.” Intellectual Disability: Definition, Classification, and Systems of

Supports at 45. Ideally, such information will be obtained from those who “have had the

opportunity to observe the person function across community settings and times. Very

often, these [people] are parents, older siblings, other family members, teachers,

employers, and friends.” Id. at 47.

Finally, the assessment of adaptive behavior, according to the AAIDD, is based

on an individual’s typical, not maximum, performance:

The assessment of adaptive behavior focuses on the

individual’s typical performance and not their best or

assumed ability or maximum performance. Thus, what the

person typically does, rather than what the individual can do

or could do, is assessed when evaluating the individual’s

adaptive behavior. This is a critical distinction between the

assessment of adaptive behavior and the assessment of

intellectual functioning, where best or maximal performance

is assessed. Individuals with an [intellectual disability]

typically demonstrate both strengths and limitations in

adaptive behavior. Thus, in the process of diagnosing

[intellectual disability], significant limitations in conceptual,

social, or practical adaptive skills is not outweighed by the

potential strengths in some adaptive skills.

Id.

12

Similarly, the DSM-IV requires significant limitation in at least two of the following

areas: communication, self-care, home living, social/interpersonal skills, use of

community resources, self-direction, functional academic skills, work, leisure, health,

and safety. Miller, 888 A.2d at 630 n.8.

[J-39-2016] - 13

Indeed, in Commonwealth v. Williams, 61 A.3d 979, 992 (Pa. 2013), we noted

that, in determining whether an individual has significant limitations in adaptive

functioning,

the focus should be on an individual’s weaknesses − not his

or her strengths − as [intellectually disabled] people can

function in society and are able to obtain and hold low-skilled

jobs, as well as have a family. This is represented in the

DSM-IV and [AAIDD’s] definitions by an individual’s

classification as [intellectually disabled] even though he may

have relatively strong skills in distinct categories.

Id. at 992. Further, the United States Supreme Court, in Moore v. Texas, 137 S.Ct.

1039, 1050 (2017), recently confirmed that, in assessing an individual’s adaptive

functioning for the purpose of determining whether the individual is intellectually

disabled under Atkins, the focus should be on the individual’s adaptive deficits, rather

than his or her adaptive strengths.13

At his pretrial hearing,14 Appellant presented the testimony of Dr. Lawson

Frederick Bernstein, Jr., a clinical and forensic neuropsychiatrist, who performed a

13

We recognize that the instruction in our April 25, 2016 per curiam order to the PCRA

court to consider the “evidence that an intellectually disabled individual could pass the

non-written CDL test after extended study,” in its assessment of whether the evidence

presented at Appellant’s PCRA hearing was sufficient to prove the first and second

prongs of Miller, could be viewed as contrary to this standard. Nevertheless, we apply

the Williams standard herein.

14

We note that, in our April 25, 2016 per curiam order, we instructed the PCRA court to

assess whether Appellant presented sufficient evidence at both his pretrial hearing and

his PCRA hearing to prove the first and second prongs of Miller. See Order, 4/25/16, at

4 (“[O]n remand, the PCRA court must assess whether Appellant presented sufficient

evidence at his pretrial hearing to prove [the first and second prongs of Miller.] If the

PCRA court concludes that Appellant did not present sufficient evidence at the pretrial

hearing to satisfy these prongs, the PCRA court should proceed to consider the

additional evidence presented at the PCRA hearing.”). In its second supplemental

opinion, the PCRA court addressed the evidence regarding Appellant’s limited

intellectual functioning presented at the pretrial hearing. However, in addressing

whether Appellant presented sufficient evidence of limitations in his adaptive

functioning, it addressed only the evidence presented at the PCRA hearings. While the

(continued…)

[J-39-2016] - 14

neuropsychiatric evaluation of Appellant. With respect to Appellant’s adaptive behavior

in the area of conceptual skills, Dr. Bernstein testified that Appellant “has a poor

memory, he has very poor decision-making skills, he has no financial acumen that I can

tell, in terms of managing his own affairs.” N.T. Pretrial Hearing, 11/27/06, at 11. Dr.

Bernstein further testified that Appellant is “a very poor historian, [and] a very poor

communicator”; that Appellant’s use of syntax and grammar is “exceedingly poor”; and

that Appellant is unable to explain complex concepts. Id. at 12.

Adam Sedlock, a psychologist who examined Appellant, also testified regarding

Appellant’s adaptive behavior in the area of conceptual skills, stating that, in his opinion,

Appellant was incapable of reading a newspaper, managing a checkbook, or finding a

name in a telephone directory. Mr. Sedlock acknowledged, however, that Appellant

would be capable of writing a “simple sentence” and possibly reading “simple

directions.” Id. at 82.

Dr. Bernstein and Mr. Sedlock’s pretrial hearing testimony was corroborated by

the testimony of one of Appellant’s ex-wives, Loura VanDivner, who was married to

Appellant for approximately 18 months during 1983-1984. She testified that, during

their marriage, Appellant was unable to look up a number in a telephone directory, read

the newspaper, manage money, or pay bills. N.T. Pretrial Hearing, 11/29/06, at 103-

105. She also testified that Appellant was unable to write a sentence. Id. at 104. Alice

Lisanti, Appellant’s younger sister, testified that, as a child, Appellant could not properly

(…continued)

PCRA court’s consideration of the evidence presented at the PCRA hearings seems to

suggest that the PCRA court found there was insufficient evidence as to Appellant’s

limitations in adaptive functioning presented at the pretrial hearings, in considering

whether the evidence was sufficient to demonstrate that Appellant suffers from

significant adaptive limitations, we consider the evidence presented at both the pretrial

hearing and the PCRA hearing.

[J-39-2016] - 15

pronounce words; she never saw him with a book or newspaper; she never saw him

read his mail; and his writing and spelling was, and remains, poor. Id. at 127-28.

In response to the evidence presented by Appellant at his pretrial hearing, the

Commonwealth presented the expert testimony of psychiatrist Dr. Bruce A. Wright.

According to Dr. Wright, when he asked Appellant if he could read or write, Appellant

responded that he could not, but stated: “If someone helped me, it would be a different

story, I think I could read and write. I just never learned.” N.T. Pretrial Hearing,

12/8/06, at 211. Dr. Wright further testified that he did not believe Appellant’s claim that

he is unable to read and write because, after being asked several times, Appellant

eventually “did write a sentence.” Id. at 211, 233. The sentence Appellant wrote was “I

love you.” Id. at 234. Dr. Wright thus concluded that, because Appellant “had the

adaptive skills to complete more things than he initially claimed he could do[, t]hat

argues against any problems with adaptive functioning.” Id. at 252.

At his PCRA hearing, Appellant presented additional expert testimony regarding

his adaptive behavior in the area of conceptual skills. Dr. Kristine Jacquin, an expert in

diagnosing intellectual disabilities, testified that she spent 84 hours evaluating

Appellant, which included two full days of evaluating Appellant in person; three days

conducting in-person interviews of people who knew Appellant; telephone interviews of

people who knew Appellant, and reviewing records. N.T. PCRA Hearing, 11/16/12, at

29-30. In addition to Appellant, Dr. Jacquin interviewed Appellant’s brothers, Albert and

Harry, and their wives; Appellant’s sisters, Mildred and Alice; Appellant’s aunts, Trillis

Cronin, Cecilia Smith, and a third aunt; Appellant’s cousin, Raymond Smith; Appellant’s

ex-wife, Loura VanDivner; and Appellant’s daughter, Jamie. Id. at 32.

Dr. Jacquin explained that she administered a variety of tests designed to

measure Appellant’s adaptive functioning, as well as two tests designed to determine

[J-39-2016] - 16

whether Appellant was malingering,15 and, based on the results of those tests,

concluded that, “in the conceptual adaptive functioning area, [Appellant] showed

impaired functioning and that includes not only the overall domain of conceptual

adaptive functioning . . . but also the sub-domains within that which are self-direction,

language/communication, [and] functional academics.” Id. at 91-92. As an example of

Appellant’s impaired conceptual skills, Dr. Jacquin described Appellant’s response to

her question of how many brothers and sisters he had. Rather than stating that he had

seven siblings, Appellant gave the name of two of his siblings. Dr. Jacquin explained

that, “rather than responding to the question itself, he responded by addressing

something related but not answering the question itself, which I took to mean that he

didn’t understand the question.” Id. at 92.

The only evidence presented by the Commonwealth at Appellant’s PCRA

hearing was the testimony of Appellant’s trial attorneys, Dianne Zerega and Susan

Harper, regarding their representation of Appellant, and the testimony of Trooper James

Monkelis, who was the lead investigator in the crime and offered testimony regarding

15

Dr. Jacquin explained that malingering is, essentially, faking deficits or impairment.

N.T. PCRA Hearing, 11/16/12, at 80. She testified that, based on the tests she

administered, Appellant was not malingering. Id. at 82. Dr. Jacquin further stated that,

despite the fact that it is standard practice to test for malingering, the report of Dr.

Wright, the Commonwealth’s pretrial expert, did not indicate that he administered any

test for malingering. Id. at 83. According to Dr. Jacquin, “[i]t seemed [Dr. Wright] was

making conclusions based simply on his interactions and just drawing conclusions

based on his interactions” with Appellant. Id. Related to the subject of malingering, Dr.

Jacquin also testified that intellectually disabled individuals “rarely actually grasp that

they have a disability. And quite the contrary, they often times want to appear their best

to other people.” Id. at 46. This inability to accurately view their abilities and skills is

referred to as a “cloak of normalcy” or “cloak of competence.” Id. at 47. Intellectually

disabled individuals will often explain their disabilities with such statements as “[i]t’s not

that I can’t do this. It’s that no one ever taught me. It’s not that I don’t know how to do

this, I just haven’t done it very much. I haven’t practiced very much.” Id. at 48. Dr.

Jacquin noted that Appellant had “said those very things” to her, id. at 49, and that

Appellant had also made a similar statement to Dr. Wright. See supra.

[J-39-2016] - 17

the police investigation. The Commonwealth presented no expert testimony regarding

Appellant’s limited intellectual functioning or significant adaptive limitations.

Turning to Appellant’s adaptive behavior in the area of practical skills, including

personal care, occupational skills, health care, travel/transportation, schedules and

routines, safety, use of money, and use of the telephone, Dr. Bernstein testified at

Appellant’s pretrial hearing that, notwithstanding Appellant’s “multiple medical problems,

[he] is not an individual who’s able to engage in the type of routine doctor visits and use

of medications to treat those conditions, unless he’s in a highly-structured setting, where

it’s basically done for him. His capacity to anticipate and meet his physical needs, in

terms of self-care, as I’ve described, is exceedingly poor.” N.T. Pretrial Hearing,

11/27/06, at 12. Mr. Sedlock similarly opined that, while Appellant is able to bathe

himself and brush his teeth, id. at 80, he is incapable of scheduling or keeping his own

appointments. Id. at 77.

Loura VanDivner also testified regarding Appellant’s adaptive behavior in the

practical skills area. At Appellant’s pretrial hearing, she testified that, during their

marriage, Appellant did not work, and was unable to dial the telephone, prepare a meal,

do laundry, shop, use simple tools, read a map, or make simple home repairs. N.T.

Pretrial Hearing, 11/29/06, at 102-10. Appellant’s sister, Alice Lisanti, likewise testified

that, when Appellant was at her home and wanted to make a telephone call, she would

have to look up the number in the telephone directory and dial the telephone for him.

Id. at 127. Ms. Lisanti also testified that, while Appellant could sign his name, one of his

wives or children had to pay his bills and do his shopping. Id. at 129.

Dr. Wright, conversely, testified at the pretrial hearing that Appellant’s “capacity

to eventually pass the CDL examination and to drive the truck over a long haul reveals

somebody who’s functioning at . . . a level that is not consistent with mental retardation.”

[J-39-2016] - 18

N.T. Pretrial Hearing, 12/8/06, at 215. Dr. Wright further suggested that Appellant’s

limitations in adaptive functioning in the areas of personal care and home-living were

the result of Appellant’s substance abuse. Id. at 277. Dr. Wright conceded, however,

that he did not ask Appellant about his ability to take his medication as prescribed, id. at

276, and he noted that Appellant failed to tell him that he never drove a truck alone or

that his daughter obtained his apartment for him. Id. at 278-79.

Appellant presented further evidence of his significant limitations in adaptive

behavior in the area of practical skills at his PCRA hearing. Judith DiJoseph, who was

married to Appellant from 1988 to 2000 (although she separated from Appellant in

1992), testified that, at one point during their marriage, Appellant was required to take a

recertification test in order to obtain his CDL. N.T. PCRA Hearing, 11/16/12, at 126.

She testified that, because she was concerned that Appellant would not be able to pass

the test on his own, she obtained a copy of the CDL manual and quizzed Appellant for

approximately 2 hours every day for a period of two months by reading each question

contained in the CDL manual, giving Appellant the answer, and repeating the process

until Appellant was able to answer each question. Id. at 127. She explained that, even

after she thought Appellant knew the answers “well enough to possibly be able to take

the test,” she “knew that he wouldn’t be able to take a written test” because “[h]e didn’t

really comprehend. He didn’t read well.” Id. at 127-28. Ms. DiJoseph testified that,

upon learning that he could take the test orally, she began quizzing Appellant several

times a day. Id. at 128. She testified that she accompanied Appellant to the testing

site. Id. at 129. She also explained that, once Appellant passed the oral CDL exam,16

she accompanied him on his trucking trips because:

16

At Appellant’s pretrial hearing, the Commonwealth presented, inter alia, the testimony

of Ronald W. Beatty, Jr., an employee of the Bureau of Driver Licensing for the

Pennsylvania Department of Transportation (“PennDOT”). Mr. Beatty testified that

(continued…)

[J-39-2016] - 19

[h]e had a hard time keeping up with the logs and . . . the law

says that they have to be done. And the equipment was in

my name, so I guess it was a matter of self-preservation, so I

went, read the maps, called the brokers to get the

information, where we were to pick up after we dropped off a

load, and I did the logs. I did all the paperwork.

Id. at 130. She also stated that she would hand Appellant the money for the tolls. Id.

Ms. DiJoseph testified that, if there was a time she was unable to accompany Appellant

on a trip, “one of his brothers would go with him. He never went alone.” Id. at 137.

At Appellant’s PCRA hearing, Dr. Jacquin also testified that Appellant exhibited

impaired adaptive functioning in the area of practical skills, including self-care, home

living, health and safety, use of community resources, and occupational functioning.

N.T. PCRA Hearing, 11/16/12, at 93. With respect to his occupational functioning, for

example, she explained that, notwithstanding the fact that he had obtained a CDL

license, based on a review of Appellant’s social security earnings,

he earned in his working years, only roughly nine percent of

what the average American worker earned during those

same years which is obviously considerably low, and it was

(…continued)

PennDOT records showed that Appellant took a recertification test for a CDL in 1992.

N.T. Pretrial Hearing, 11/29/06, at 173. Mr. Beatty also testified that, in 1992, Appellant

would have been required to take a 70-question written multiple choice test in order to

obtain his CDL. Id. at 174. When asked by defense counsel if an individual could take

the CDL test over the telephone, Mr. Beatty stated that he did not believe the CDL test

“was ever administered over the telephone,” id. at 180, clearly suggesting that Appellant

had passed a 70-question written multiple choice test in order to obtain his CDL license.

As discussed infra, Beatty’s testimony ultimately was discredited at Appellant’s PCRA

hearing by the testimony of Mary Christy, who worked at the Neville Island Driver’s

License Exam Center in 1992, where Appellant took his recertification test for a CDL.

Ms. Christy was shown a paper indicating that Appellant had passed the non-written

version of the CDL test on February 5, 1992, and she confirmed that the signature on

the paper was hers. N.T. PCRA Hearing, 11/16/12, at 7-8. Ms. Christy also explained

that, for the non-written CDL exam, a telephone “was hooked up to the computer and

the computer would ask questions and all they had to answer was, push button one for

true or two for false.” Id. at 6.

[J-39-2016] - 20

on that basis that I judged his occupational functioning to be

impaired. He was not able to hold jobs long enough or jobs

of sufficient type to be able to support themselves at a level

that the average American worker was able to sustain

themselves during that time.

Id. at 95-96.

Finally, with regard to Appellant’s adaptive behavior in the area of social skills −

which include interpersonal skills, social responsibility, self-esteem, gullibility, naiveté,

social problem solving, the ability to follow rules and obey laws, and the ability to avoid

being victimized − the testimony presented at Appellant’s pretrial hearing suggested that

Appellant lacks interpersonal skills, has difficulty following rules, is gullible, and was

often victimized. See N.T. Pretrial Hearing, 11/27/06, at 84 (Mr. Sedlock opining that

Appellant was a “follower” (as opposed to a leader), and would have difficulty following

rules and following multi-step directions); N.T. Pretrial Hearing, 11/29/06, at 117 (Loura

VanDivner testifying that Appellant did not have any friends); id. at 122-32 (Alice Lisanti

testifying that, as a child, Appellant did not interact with other children, kept to himself,

did not get along with his classmates because they made fun of him, and was a

follower).17

Notwithstanding the evidence and testimony detailed above, the PCRA court

determined that Appellant failed to present sufficient evidence that he suffered from

significant limitations in adaptive behavior, reasoning:

The evidence presented at the PCRA hearing included

[Appellant’s] ex-wife, Judith DiJoseph, who testified that she

assisted Petitioner in preparing for the CDL exam by

obtaining a study guide from PennDOT and reviewing the

materials with [Appellant] for several months. The ability of

17

As with Appellant’s limitations in adaptive functioning in the areas of personal care

and home-living, Dr. Wright suggested that Appellant’s lack of adaptive skills in the area

of social skills may have been affected by Appellant’s history of substance abuse. N.T.

Pretrial Hearing, 12/8/06, at 247.

[J-39-2016] - 21

[Appellant] to learn the content [of a PennDOT study guide

for the CDL exam] well enough to pass an oral examination,

actually pass the examination, then maintain employment as

a successful over-the-road truck driver for many years

accepting tasks assigned to him to traverse the country,

coupled with the lack of evidence that [Appellant] was ever

incompetent at his job, ever received citations for improper

driving of his truck, or ever caused a motor vehicle accident

as a result of deficient truck driving establishes that he

displayed appropriate adaptive functioning in the areas of

conceptual, social, and practical skills according to the

AAIDD definition of adaptive behavior.

In support of our determination as to social

functioning, we note that [Appellant] was married,

maintained intimate personal relationships with women, and

continued relationships with his family. In support of

practical skills, [Appellant] kept trucking logs in the normal

course of his business as is required for a truck driver. With

respect to the categories identified by the DSM-IV, these

same behaviors displayed by [Appellant] establishes that he

was not deficient in the areas of communication, self-care,

home living, social/interpersonal skills, use of community

resources, self-direction, functional academics, work, leisure,

health, and safety. As such, [Appellant] has failed to meet

his burden with regard to the second prong of Miller −

significant adaptive limitations.

PCRA Court Second Supplemental Opinion, 12/8/16, at 3-4 (record citation omitted).

The PCRA court further concluded that, because Appellant failed to demonstrate

“significant adaptive limitations” under Miller, he could not establish that counsel

rendered ineffective assistance in failing to present the above-described PCRA hearing

evidence at Appellant’s pretrial hearing to bar the death penalty. Id. at 4.

Upon review, we find that the PCRA court’s determination that Appellant failed to

prove that he has significant adaptive limitations − which, in combination with his limited

intellectual functioning and prior to age 18 onset, would render him ineligible for the

death penalty under Atkins/Miller − is unsupported in both law and fact. Initially, with

regard to the PCRA court’s citation to the fact that Appellant was married, maintained

intimate relationships with women, and had relationships with his family to support its

[J-39-2016] - 22

conclusion that Appellant does not suffer from limited adaptive functioning in the area of

social skills, this Court rejected this same reasoning in Commonwealth v. Williams,

supra.

In Williams, the appellee was convicted of first-degree murder and abuse of a

corpse and sentenced to death for the stabbing death of his wife. In a PCRA petition,

the appellee argued, inter alia, that he was ineligible for the death penalty under Atkins.

Following an evidentiary hearing, the PCRA court concluded the appellee had

established that he was intellectually disabled, and it vacated his death sentence. The

Commonwealth appealed.

In affirming the PCRA court’s decision, this Court concluded there was sufficient

evidence to support the PCRA’s determination that the appellee established all three

prongs of the Atkins/Miller test, including significant deficits in adaptive functioning. In

that regard, the evidence included testimony that the appellee was unable to read, write,

or perform arithmetic; he was at a second-grade reading level; he was unable to

manage his finances; he worked at a sausage factory and as a disc jockey, but required

supervision at the sausage factory because he had difficulty remembering what spices

to include in the sausage mix, and assistance in reading song titles when working as a

disc jockey; he neglected his health by refusing treatment for his diabetes; and,

although he had several relationships with women and eventually was married, all of the

relationships ultimately failed.

Notwithstanding that evidence, the Commonwealth in Williams argued that the

PCRA court erred in finding the appellee had significant adaptive deficiencies because

he was able to provide for his family and was capable of working. This Court rejected

the Commonwealth’s argument, noting that, in determining whether an individual has

limitations in adaptive functioning, the proper focus is on the individual’s weaknesses,

[J-39-2016] - 23

not the individual’s strengths. 61 A.3d at 992. We further recognized that intellectually

disabled individuals “can function in society and are able to obtain and hold low-skilled

jobs, as well as have a family.” Id.18 Similarly, in the instant case, the mere fact that

Appellant was married several times and maintained relationships with his family does

not support the conclusion that Appellant does not suffer from limited adaptive

functioning in the area of social skills.

In the instant case, the PCRA court also concluded that Appellant’s ability to

learn the content of the CDL study guide and pass an oral version of the exam, as well

as his ability to maintain employment as a “successful over-the-road truck driver”

demonstrates that he possesses “appropriate adaptive functioning” in the areas of

conceptual, practical and social skills. However, the evidence at both the pretrial and

PCRA hearings refutes the PCRA court’s determination.

At Appellant’s pretrial hearing, for example, when the Commonwealth questioned

Dr. Bernstein regarding Appellant’s ability to obtain a CDL, Dr. Bernstein explained that

the fact that Appellant obtained a CDL is “not an arbiter of who is or isn’t mentally

retarded. People with mild mental retardation can work and can pass certain vocational

tests in order to work.” N.T. Pretrial Hearing, 11/27/06, at 29. Likewise, Mr. Sedlock

testified at Appellant’s pretrial hearing that “individuals with mild mental retardation can

obtain jobs,” can take “limited tests if they’re coached or assisted,” and can complete

“[r]epetitive, routine tasks.” Id. at 81.

Moreover, at his PCRA hearing, Appellant presented the testimony of Dr. Eunice

Askov, a retired professor of education at The Pennsylvania State University. Dr. Askov

testified that, in the late 1980s, she began working closely with PennDOT regarding the

18

One of the two Commonwealth experts in Williams was Dr. Bruce Wright, the

Commonwealth’s expert in this case. In our prior opinion, Dr. Wright was incorrectly

identified as Dr. Bryan Wright.

[J-39-2016] - 24

implementation of a program that would enable individuals with limited reading ability to

study for and pass the CDL exam. N.T. PCRA Hearing, 10/24/12, at 57. According to

Dr. Askov, the CDL manual was rewritten at that time to make it understandable to

individuals at a below-4th grade reading level. Id. at 61. Dr. Askov indicated that

PennDOT also offered an oral CDL exam, and she opined that a “severely limited

person intellectually,” including an individual with an IQ of below 70, could pass that

exam, particularly someone with prior driving experience. Id. at 65, 67.

Additionally, following her testimony at Appellant’s PCRA hearing that Appellant

exhibited impaired adaptive functioning in the area of practical skills, Dr. Jacquin

specifically was asked if she had considered the fact that Appellant possessed a CDL

when forming her opinion. Dr. Jacquin confirmed that she had, elaborating:

There were a number of things that I considered with respect

to the CDL license. First, just having a driver’s license of

any kind in and of itself, doesn’t negate a finding of mental

retardation, or impaired adaptive functioning. It is a skill, like

many other skills, wherein a person with mental retardation

could have that skill and be able to drive, be able to pass a

driver’s test. My opinion about that was strengthened when I

learned that he took the driver’s test orally, so he didn’t have

to actually write, understand questions that were written, and

respond in that way, but instead was able to respond orally.

So that makes the test much easier. Then I also read an

affidavit from his ex-wife, Judith, in which she said that she

helped him study for months and months and months for the

test, which also further strengthened my opinion that it

wasn’t terribly difficult, it wasn’t a terribly difficult test. He was

able to at least master the basic information enough to pass

the test. And that’s not inconsistent with his situation. It is

not inconsistent with impaired adaptive functioning. As I

mentioned earlier, one can have, you know, some skills or

abilities in certain areas and still overall have impaired

adaptive functioning.

[J-39-2016] - 25

N.T. PCRA Hearing, 11/16/12, at 94. Dr. Jacquin also testified that intellectually

disabled individuals can, through repetition, “learn the skills needed to perform a fairly

basic job.” Id. at 35.

Appellant also presented at his PCRA hearing the testimony of Dr. Susan Rich, a

defense expert in the field of diagnosing, counseling, and treating Fetal Alcohol

Spectrum Disorder (“FAS”). Based on her physical, neurological, and psychiatric

examinations of Appellant, Dr. Rich diagnosed Appellant with partial FAS. N.T. PCRA

Hearing, 10/24/12, at 33. After the Commonwealth completed its cross-examination of

Dr. Rich, the PCRA court initiated the following exchange:

PCRA Court: Doctor, how would you explain if you were, I

don’t know if you were aware or were told what, that in his

adult life, Mr. VanDivner was able to pass the difficult

commercial driver’s license examination and function in that

capacity. How would you explain that based upon what you

testified today?

Dr. Rich: I can tell you that a person who is limited in the

ways that he is, if he is, through memorization, over and over

and over and over again, someone is working with that

person to help them learn anything if it is one on one, and

they are going over and over and over.

PCRA Court: Here you are making some assumptions

then?

Dr. Rich: I am not because there is evidence that someone

did that with him?

PCRA Court: Worked over and over and over and over with

him. There was evidence of that?

Dr. Rich: To just . . .

PCRA Court: What is that evidence?

Dr. Rich: Was an affidavit and I don’t know about testimony,

but it was an affidavit and report of an ex-wife that she

worked with him for you know hours and hours and hours on

[J-39-2016] - 26

end. And that in his driving career, someone drove with him

to find a way and he and I discussed that when I met with

him, how he was able to do that and he said he would never

be able to get where he needed to go if it weren’t for

someone riding in the truck with him. So either, I believe

one of his children. The other thing in his case that’s

different is he grew up with a truck driving dad who he went

on long trips with often. And he you know helped him

understand sort of the mechanics of being a truck driver.

PCRA Court: So then someone who in your opinion is

mentally retarded can be taught or trained or whatever to

pass these examinations and to function?

Dr. Rich: Yes.

PCRA Court: And also, a number of your answers and just

not only to the question I just asked but in your testimony

was based on what Mr. VanDivner said to you or told to you.

Is that correct?

Dr. Rich: Not just what he told me.

PCRA Court: No, I am just saying . . .

Dr. Rich: It was corroborated by other testimony that I

reviewed. So yes, I gathered some information from him but

none of my testimony is based solely on my discussion with

him because in fact as most individuals with FAS, are not

very good historians. You have to gain collateral and that’s

why there were volumes and volumes of information

presented to me.

Id. at 53-55.

The expert testimony presented at Appellant’s pretrial and PCRA hearings simply

does not support the PCRA court’s conclusion that Appellant’s ability, after a lengthy

and intense period of coaching, to memorize and answer true or false questions on an

oral CDL test, demonstrates “appropriate adaptive functioning in the areas of

conceptual, social, and practical skills.” PCRA Court Second Supplemental Opinion,

12/8/16, at 3-4.

[J-39-2016] - 27

Additionally, the PCRA court’s determination that Appellant maintained

employment as “a successful over-the-road truck driver for many years”, id., and

demonstrated practical skills by maintaining trucking logs, as well as the PCRA court’s

statement that there was no evidence that Appellant was “incompetent” at his job, are

belied by the record. As noted above, Dr. Jacquin testified at Appellant’s PCRA hearing

that Appellant’s social security earnings revealed that, when he was working as a truck

driver, he earned approximately 9 percent of what the average American worker earned

at the time, and was not able to hold a job for a long period of time. N.T. PCRA

Hearing, 11/16/12, at 95-96. There also was repeated and uncontradicted testimony

that Appellant was always accompanied by a friend or family member on his trucking

trips because Appellant could not read the maps, count the money for the tolls, and had

difficulty keeping up with the logs. N.T. PCRA Hearing, 11/16/12, at 130 (Ms. DiJoseph

testifying that she did all the paperwork, including the logs, and that Appellant never

went on trips alone); N.T. Pretrial Hearing, 11/29/06, at 135 (Appellant’s sister, Alice

Lisanti, testifying that “there was always someone riding with” Appellant on his trucking

trips); N.T. Pretrial Hearing, 1/11/07, at 323 (Appellant’s sister, Mildred Patton, testifying

that Appellant never took trips by himself and was always accompanied by a friend or

one of his brothers).

For all of the above reasons, we hold that the PCRA court’s factual finding that

Appellant failed to establish that he has significant adaptive limitations because he was

married and maintained relationships with his family, was able to learn the content of

the CDL study guide and pass an oral version of the exam, and was able to maintain a

job as a truck driver, is not supported by substantial evidence. Indeed, the evidence

presented at Appellant’s pretrial and PCRA hearings, which we have detailed above,

clearly demonstrates that he suffers from significant adaptive limitations in the areas of

[J-39-2016] - 28

conceptual, practical and social skills, notwithstanding the fact that he was able to pass

a non-written CDL exam after extended study. See Williams, 61 A.3d at 992 (in

determining whether an individual has significant limitations in adaptive functioning, the

focus should be on an individual’s weaknesses, as opposed to his or her strengths);

Moore v. Texas, 137 S.Ct. at 1050 (in determining whether an individual is intellectually

disabled under Atkins, the focus should be on the individual’s adaptive deficits, rather

than his or her adaptive strengths). This evidence also undercut the testimony of Dr.

Wright, the Commonwealth’s sole expert witness. Thus, with regard to the first prong of

Appellant’s ineffectiveness claim, we find that Appellant’s underlying claim that an

intellectually disabled individual could pass a non-written CDL exam after extended

study has arguable merit. We now must determine whether, under the second

ineffectiveness prong, there existed any reasonable basis for counsel’s failure to

present at Appellant’s pretrial hearing evidence to establish the same.19

19

As discussed above, in our December 29, 2015 opinion, we held that the PCRA

court’s factual finding that Appellant failed to establish that his intellectual disabilities

existed prior to the age of 18 was not supported by substantial evidence; accordingly,

we remanded the matter for a supplemental opinion addressing whether there was any

reasonable basis for counsel’s failure to obtain and introduce certain evidence that

would have supported that fact, and whether Appellant was prejudiced. We further

instructed the PCRA court to address the remaining two Miller prongs, i.e., Iimited

intellectual functioning and significant adaptive limitations. In a concurring opinion,

Chief Justice Saylor agreed with the majority’s remand for consideration of the

remaining Miller prongs, but stated:

I am circumspect about directing that the remand

proceedings necessarily should be channeled through an

ineffectiveness overlay. The United States Supreme Court

has held that the execution of an intellectually disabled

offender is excessive under the Eighth Amendment; thus,

the federal Constitution places a “substantive restriction”

upon the government’s power to take the life of such an

offender. [Atkins, 536 U.S. at 321]; see also Brumfield v.

Cain, [135 S.Ct. 2269] (2015) (characterizing Atkins as

“recogniz[ing] that the execution of the intellectually disabled

contravenes the Eighth Amendment’s prohibition on cruel

(continued…)

[J-39-2016] - 29

With regard to analyzing the reasonable basis prong under an ineffective

assistance of counsel claim, this Court has explained:

Under prevailing constitutional norms as explicated by the

United States Supreme Court, capital counsel has an

obligation to pursue all reasonable avenues for developing

mitigating evidence. Counsel must conduct a thorough pre-

trial investigation, or make reasonable decisions rendering

particular investigations unnecessary. Strategic choices

made following a less than complete investigation are

reasonable precisely to the extent that reasonable

professional judgement supports the limitation of the

investigation. In undertaking the necessary assessment,

courts are to make all reasonable efforts to avoid distorting

effects of hindsight. Nevertheless, courts must also avoid

“post hoc rationalization of counsel’s conduct.”

Commonwealth v. Sepulveda, 55 A.3d 1108, 1128 (Pa. 2012) (citations omitted).

Further, when considering a claim related to counsel’s alleged deficient

(…continued)

and unusual punishment”). Given the execution-eligibility

terms in which the Atkins restriction is phrased, it would

appear that a strong argument exists that, if Appellant is

determined to be intellectually disabled, the sentence of

death must be vacated, irrespective of whether trial counsel

can be faulted for failing to marshal a better case to prove

the disability. At a minimum, I suggest that the trial court

direct supplemental briefing on the point.

VanDivner II, 130 A.3d at 697 (Saylor, C.J., concurring) (footnote omitted). The PCRA

court did not direct supplemental briefing on the issue, and, although Appellant

addresses the issue in his brief, the Commonwealth, as noted above, filed a no-answer

letter, declining to address any issues. Regardless, Chief Justice Saylor’s point is well-

taken, and there may come a time when this Court will need to address whether an

adjustment to existing post-conviction requirements is warranted for cases involving

Atkins claims. Nevertheless, as the PCRA court previously held that trial counsel had

no reasonable basis for failing to present evidence that Appellant’s intellectual

disabilities manifested prior to age 18, PCRA Court Opinion, 1/12/16, at 2, and because,

with respect to Appellant’s adaptive behavior, we can conclude from the record that trial

counsel had no reasonable basis for failing to introduce evidence to demonstrate

Appellant’s significant limitations in adaptive behavior, we leave that assessment for

another day.

[J-39-2016] - 30

performance in failing to investigate and present mitigating evidence, we consider

several factors, including “the reasonableness of counsel’s investigation, the mitigation

evidence that was actually presented, and the additional or different mitigation evidence

that could have been presented.” Id.

Appellant contends that, based on Dr. Wright’s report, trial counsel knew that the

Commonwealth would attempt to use his ability to pass a written multiple-choice CDL

exam to disprove at his pretrial Atkins hearing his claim of limitations in adaptive

behavior. A review of the record confirms that the Commonwealth attempted to do so.

For example, after Dr. Bernstein testified that, in his opinion, Appellant suffers from

limitations in adaptive behavior, the Commonwealth cross-examined Dr. Bernstein as

follows:

Q: Were you aware that he had a commercial driver’s

license, a CDL license?

A: Yes, we discussed that.

Q: And are you aware of the testing procedures that one

undertakes to receive that CDL license?

A: Yeah, I used to be an over-the-road truck driver, so I

know something about CDL licenses.

Q: So, you’re aware that there’s approximately 70 multiple

choice questions that one must answer with a passing rate

of 80 percent to become a CDL-licensed driver.

A: Right, and that is not -- that is correct. It would −− It’s not

an arbiter of who is or isn’t mentally retarded. People with

mild mental retardation can work and can pass certain

vocational tests in order to work.

N.T. Pretrial Hearing, 11/27/06, at 29.20

20

On redirect, trial counsel asked Dr. Bernstein if Appellant had told him “that he had

someone else take the CDL test for him.” N.T. Pretrial Hearing, 11/27/06, at 42. Dr.

Bernstein replied that Appellant had related that he had “perpetrated certain frauds in

(continued…)

[J-39-2016] - 31

In another instance, after trial counsel asked Mr. Sedlock whether an

intellectually disabled individual could “take limited tests if they’re coached or assisted,”

and he responded in the affirmative, elaborating that such individuals, when given the

same type of work on a regular basis, can complete “[r]epetitive, routine tasks,” id. at

81, the Commonwealth questioned Mr. Sedlock as to the incongruity of his opinion that

Appellant cannot read a newspaper, use a telephone directory, or write in a checkbook,

but was able to correctly answer 80% of a 70-question multiple choice test in order to

obtain a CDL. Id. at 88.21

The Commonwealth also presented the testimony of PennDOT employee Ronald

Beatty, who stated that, in 1992, Appellant would have been required to take a 70-

question written multiple choice test in order to obtain his CDL, and that, to his

knowledge, the CDL was “[n]ever administered over the telephone.” N.T. Pretrial

Hearing, 11/29/06, at 174, 180.

Moreover, Dr. Wright, the Commonwealth’s expert, testified that, in his opinion,

Appellant “does not have a diagnosis of mental retardation,” because, inter alia, he

previously “was able to function to the degree that he took and passed the CDL

examination, he was able to drive a truck, things like that.” See N.T. Pretrial Hearing,

12/8/06, at 250-51.

Appellant maintains that, in light of the Commonwealth’s attempt to undermine

his proffered evidence of significant limitations in adaptive behavior with evidence that

he passed a written CDL exam, there was no reasonable basis for trial counsel’s failure

to present evidence (1) to demonstrate that individuals with limitations in adaptive

(…continued)

regards to the testing procedure in order to obtain the license,” but that they did not

discuss the details. Id. at 43.

21

Ultimately, the trial court sustained defense counsel’s objection to that line of

questioning, on the basis that it assumed facts not in evidence. Id. at 89.

[J-39-2016] - 32

behavior can pass a non-written version of the exam after extended study; and (2) that

Appellant himself passed an oral, not a written, version of the exam, and only after

extended coaching by his ex-wife. Specifically, Appellant asserts that trial counsel

should have investigated and presented the testimony of (1) Dr. Askov, who testified at

Appellant’s PCRA hearing that PennDOT offered an oral CDL exam which a “severely

limited person intellectually” could pass, N.T. PCRA Hearing, 10/24/12, at 67; (2) Mary

Christy, whose name appeared on the report of Appellant’s CDL exam, and who

testified at the PCRA hearing that Appellant had passed an oral, true-or-false version of

the exam; and (3) Appellant’s ex-wife, Judith DiJoseph, who testified at Appellant’s

PCRA hearing that she coached Appellant for several hours a day for two months to

prepare him for taking the oral CDL examination. Based on our review of the record, we

agree with Appellant that trial counsel’s investigation fell below the above-noted

constitutional threshold, and that trial counsel had no reasonable basis for failing to

present such evidence.22

At Appellant’s PCRA hearing, trial counsel acknowledged that members of

Appellant’s family spoke with her regarding, inter alia, Appellant’s “limitations, his work

history, [and] how he was able to get his commercial driver’s license,” as well as

“instances of how, the things that they did to assist him.” N.T. PCRA Hearing, 1/30/13,

at 90, 97. Trial counsel specifically referenced the fact that Appellant’s wife “filled out

the log when he was driving his commercial vehicle.” Id. at 97. However, despite trial

22

In order to prevail on a claim that trial counsel was ineffective for failing to present a

witness, an appellant must demonstrate that (1) the witness existed; (2) counsel was

either aware of or should have been aware of the witness’s existence; (3) the witness

was willing and able to cooperate on behalf of the defendant; and (4) the proposed

testimony was necessary to avoid prejudice to the defendant. Commonwealth v. Tharp,

101 A.3d 736, 757 (Pa. 2014). Dr. Askov, Ms. Christy, and Ms. DiJoseph each signed

an affidavit indicating that, had they been contacted at the time of Appellant’s pretrial

hearing, they would have been available and willing to testify.

[J-39-2016] - 33

counsel’s admitted knowledge that Appellant’s family assisted him both in obtaining a

CDL and in working as a truck driver, trial counsel failed to offer any reasonable

explanation for her failure to present evidence to establish how Appellant, who

demonstrated significant adaptive limitations in almost every aspect of his life, was able

to obtain a CDL:

PCRA Counsel: Now, were you, you were informed by

[Appellant] that he took this CDL exam over the phone,

weren’t you?

Ms. Zerega: No.

PCRA Counsel: No? Is it possible . . . .

Ms. Zerega: There were various. . . .

PCRA Counsel: I am sorry?

Ms. Zerega: There were various versions of what happened.

He wasn’t certain that he remembered. Then one of the

sisters indicated that Harry, maybe it was the wife, I don’t

know which, but I got information that the brother who looks

very much like James or did at that point, the males all very

similar they said, and having met one brother, he does look

very much like James, that this brother also did, and had

taken the test for him. There was some discussion later

about a phone exam. But again I don’t know that James

ever took the test himself.[23]

23

Appellant’s sister, Alice Lisanti, testified that she knew “[Appellant] didn’t take the

written portion of the test,” and, in fact, believed that someone else may have taken the

exam for him “over the phone.” N.T. Pretrial Hearing, 11/29/06, at 134. However, Mr.

Sedlock testified that Appellant told him that he took the test to receive his CDL, N.T.

Pretrial Hearing, 11/27/06, at 88, and, as noted above, Dr. Wright’s report, which was

introduced into evidence at the pretrial hearing, indicated that Appellant “reported that

the CDL examination was given over the phone, that he failed several times, but

eventually, after studying the material, was able to successfully test.” Report of Bruce

A. Wright, 12/2/06, at 4 n.4 (Commonwealth’s Exhibit G to December 8, 2006 Pretrial

Hearing).

[J-39-2016] - 34

PCRA Counsel: Did you attempt to obtain records from

PennDOT related to that, to the CDL?

Ms. Zerega: I did contact PennDOT. They indicated that it

can be done over the phone but they wouldn’t have records

as to how someone took it that would go back that far.

PCRA Counsel: Did you attempt to obtain anybody to testify

to that fact?

Ms. Zerega: Not specifically, no, because they couldn’t say

whether James took it by phone or not.

PCRA Counsel: Did you ask them to locate any records

regarding James taking the CDL examination?

Ms. Zerega: I asked them if they would have them. They

informed me they didn’t go back that far.

PCRA Counsel: Who did you ask?

Ms. Zerega: I don’t know. I called somebody in Harrisburg. I

believe that’s where it was. And I talked to the people locally

to find out who I should talk to and they gave me records.

N.T. PCRA Hearing, 1/30/13, at 115-16.

Although, as trial counsel testified, there may have been conflicting testimony at

the pretrial hearing as to whether Appellant actually took the CDL exam himself, and, if

so, whether he took a written or oral version of the exam, such conflicting testimony

warranted, at a minimum, further investigation into the matter. The 1992 report of

Appellant’s CDL exam that was introduced into evidence at Appellant’s pretrial hearing

identified Ms. Christy as the Examiner, yet trial counsel did not attempt to contact her to

confirm the type of exam Appellant passed in order to obtain his CDL. Had counsel

done so, she would have been able to establish that Appellant passed an oral, as

opposed to a written, version of the CPL exam, thereby expressly disproving the pretrial

hearing testimony of Mr. Beatty, and undermining the Commonwealth’s reliance on

[J-39-2016] - 35

Appellant’s purported ability to pass a 70-question written multiple choice exam to

disprove his claim of significant limitations in adaptive behavior.

Additionally, despite the contradictory nature of the statement in Dr. Wright’s

report that Appellant claimed to have passed the CDL exam after studying the material,

and the testimony of numerous witnesses that Appellant is unable to read, trial counsel

did not contact Ms. DiJoseph, the individual to whom Appellant was married and lived

with at the time he took the CDL exam, to attempt to determine how Appellant was able

to study for and pass an oral version of the CDL exam. Had counsel obtained this

information from Ms. DiJoseph, counsel would have been able to demonstrate how,

consistent with the expert testimony presented by Appellant both at his pretrial and

PCRA hearings that intellectually disabled individuals can pass certain vocational tests,

particularly when coached or assisted by others, Appellant was able to pass an oral

version of the CDL exam, thereby significantly undercutting the opinion of the

Commonwealth’s sole expert witness, Dr. Wright, that Appellant is not intellectually

disabled because he passed the CDL exam. Accordingly, we are compelled to

conclude that trial counsel’s performance was the result of insufficient investigation, and

not any reasonable strategy.

The final prong that Appellant must establish to obtain relief based on his

ineffectiveness of counsel claim is that he suffered prejudice as a result of counsel’s

error, measured by whether there is a reasonable probability that the result of the

proceeding would have been different. See Pierce, 786 A.2d at 213. To reiterate,

under Miller, an individual is intellectually disabled, and ineligible for the death penalty, if

he suffers from limited intellectual functioning, significant adaptive limitations, and onset

prior to age 18. Although the PCRA court recognized that Appellant suffers from limited

intellectual functioning, with onset prior to age 18, it determined that, in view of his

[J-39-2016] - 36

ability to obtain a CDL, Appellant did not demonstrate that he suffers from significant

adaptive limitations.

However, for the reasons expressed above, we reject this determination, and

conclude that, given the evidence presented at Appellant’s PCRA hearing, combined

with the evidence presented at his pretrial Atkins hearing, Appellant has demonstrated

that he suffers from significant limitations in adaptive behavior. As Appellant has

established all three prongs of Miller - limited intellectual functioning, significant adaptive

limitations, and onset prior to age 18, he has demonstrated that he is intellectually

disabled, and ineligible for the death penalty. Accordingly, we hold that Appellant has

satisfied all three prongs of his ineffectiveness claim.

Having concluded that Appellant is entitled to relief under the PCRA based on his

ineffectiveness of counsel claim, and because the evidence establishes that Appellant is

intellectually disabled under the standard set forth in Miller, and, thus, is ineligible for the

death penalty, we vacate his judgment of sentence of death and direct that his judgment

of sentence be modified to reflect the imposition of a life sentence on the first-degree

murder conviction, subject to appellate review of Appellant’s remaining guilt phase and

sentencing claims. Appellant filed, on June 2, 2017, an Application for Relief

requesting, inter alia, that this Court decide all issues raised by Appellant. However, as

this matter is now a non-capital case, we deny Appellant’s Application for Relief, and

transfer this appeal to the Superior Court for disposition of these remaining claims. See

Gibson, 925 A.2d at 171 (case that becomes a non-capital case on appeal is transferred

to Superior Court for review of remaining claims).

Judgment of sentence of death modified to reflect a life sentence on Appellant’s

first-degree murder conviction. Case transferred to Superior Court. Jurisdiction

relinquished.

[J-39-2016] - 37

Chief Justice Saylor and Justices Baer, Donohue, Dougherty and Mundy join the

opinion.

Justice Wecht did not participate in the consideration or decision of this matter.

[J-39-2016] - 38