Opinion

Commonwealth v. Tharp

  • 627 Pa. 673
  • 101 A.3d 736
  • 2014 Pa. LEXIS 2501
Court
Supreme Court of Pennsylvania
Filed
Sep 24, 2014
Status
Published
Author
Saylor
On the bench
Baer, Castille, Eakin, McCaffery, Saylor, Stevens, Todd
Cited by
180 cases
Authority
More cited than 19.7%

holding that trial counsel was ineffective because he conducted a deficient investigation into mitigating evidence, presented no testimonial evidence during the penalty hearing, and, instead, relied on the defendant’s guilt phase testimony of abuse and domestic violence when ample life history and mental health mitigation evidence was readily available

How later courts described this case

  • holding that trial counsel was ineffective because he conducted a deficient investigation into mitigating evidence, presented no testimonial evidence during the penalty hearing, and, instead, relied on the defendant’s guilt phase testimony of abuse and domestic violence when ample life history and mental health mitigation evidence was readily available
  • finding no actual bias in trial counsel’s prior representation of jailhouse informants - 17 - J-S05013-15 where the appellant does not show a “nexus” between the prior representation and counsel’s performance at trial, i.e., that counsel “restricted his cross-examination” of his prior clients because of the conflict of interest
  • holding that, although “character evidence alone may be sufficient to raise a reasonable doubt and, thus, justify an acquittal,” PCRA relief is not due where “the presentation of character evidence under the facts presented would not have created in the minds of the jury a reasonable doubt”
  • concluding that record supported “PCRA court’s factual finding that no undisclosed agreement existed[ that] was suppressed by the Commonwealth” despite “that other evidence presented at the PCRA evidentiary hearing suggested that an oral agreement may have been reached”

Written by the judges who cited it.

The opinion

Justice SAYLOR,

concurring.

I join the majority opinion, save for its perpetuation of the notion that, in any capital case in which one or more sentencing jurors find the catch-all mitigator present, counsel cannot be deemed ineffective for failing to present additional catch-all mitigating evidence. See Majority Opinion at 772-73 (citing Commonwealth v. Rios, 591 Pa. 583, 621-22 , 920 A.2d 790, 812-13 (2007), and Commonwealth v. Marshall, 571 Pa. 289, 304-05 , 812 A.2d 539, 548-49 (2002)). So far as I can tell, this approach derives from the conception that the weighing of mitigating circumstances is a mere counting exercise, a proposition which is neither supported by the death-penalty statute nor other decisions of this Court. See, e.g., Commonwealth v. Spotz, 610 Pa. 17, 99-100 , 18 A.3d 244, 292-93 (2011) (crediting jury instructions admonishing that, “[i]n deciding whether aggravated [sic] outweigh mitigating circumstances, do not simply count their number[;] [c]ompare the seriousness and importance of the aggravating with the mitigating [circumstances].”).

Illustrations of the patent illogic and unfairness of the approach may be readily envisioned. For example, the rule would operate to insulate a capital penalty lawyer’s stewardship from rational scrutiny where the attorney has failed to present readily available and potentially weighty evidence that his client suffers from profound intellectual disability, see generally Williams v. Taylor, 529 U.S. 362, 398 , 120 S.Ct. 1495, 1515 , 146 L.Ed.2d 389 (2000) (commenting that “the reality that [the defendant] was ‘borderline mentally retarded,’ might well have influenced the jury’s appraisal of his moral culpability”), where the lawyer nevertheless adduced evidence, credited as mitigating by a single juror albeit given little weight, that the defendant in his early youth had effectuated a single, modest act of volunteerism.

I have previously posited that the derivation of this rule lacks a principled underpinning, see Rios, 591 Pa. at 647 , 920 A.2d at 828 (Saylor, J., concurring and dissenting), and I have difficulty appreciating why majority decisions continue to apply it in a rote fashion, with no attempt to address its obvious shortcomings.

Justice EAKIN and Justice TODD join this concurring opinion.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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