Commonwealth v. Tedford

Justice BAER,

concurring.

I join the Majority’s resolution of Appellant’s guilt and penalty phase claims. I write separately because I believe it noteworthy that, at least in my view, there is arguable merit to Appellant’s claim that counsel was ineffective for not informing him that the pragmatic consequence of waiving his right to present mitigating evidence would be an automatic death sentence. I reach this conclusion because of what I see as the virtual certainty that the. Commonwealth would establish the aggravating factor that the murder was committed in *733 the perpetration of a felony (the rape for which Appellant was simultaneously convicted), see 42 Pa.C.S. § 9711(d)(6), dooming him to death, absent some case in mitigation. As described below, I further distance myself from one of the Majority’s reasons for rejecting claims of ineffectiveness.

As the Majority describes, Appellant was convicted of rape and murder. At the conclusion of the guilt phase, trial counsel informed the penalty phase court that Appellant had decided not to prepare for or participate in the penalty phase of the case. In particular, counsel informed the court that he had explained to Appellant the difference between the respective burdens of proof at the penalty phase, stating that the Commonwealth has the burden of proving aggravating circumstances beyond a reasonable doubt, and the defense had the burden of proving mitigating factors by a preponderance of the evidence. Moreover, trial counsel informed the penalty phase court that he had urged Appellant to meet with his mother and sister to discuss mitigation. Notwithstanding these disclosures and admonitions, Appellant told penalty phase counsel that he did not desire to participate in the penalty phase of the case, and, instead, preferred formally to waive his right to present mitigating evidence. At the colloquy that the trial court properly conducted following penalty phase counsel’s representations, Appellant confirmed that he was abandoning his right to present mitigation evidence. Appellant told the penalty phase court that he understood what he was doing, and said that he believed “I really don’t have any hope.” See Majority Op. at 711, 960 A.2d at 43.

Conspicuously missing from counsel’s disclosures to Appellant was an explanation that should the jury find an aggravator and no mitigator, it was mandated by law to return the sanction of death. Now appreciating this, Appellant argues that because the jury had just found him guilty of murder and rape arising from the same criminal episode, it was virtually certain to find, as an aggravating factor, that the killing was committed during the commission of a felony (the rape). See 42 Pa.C.S. § 9711(d)(6). Given the extreme likelihood of this result, Appellant argues that counsel should have told him that *734 the consequence of declining to present mitigation evidence was an automatic death sentence. See 42 Pa.C.S. § 9711(c)(iv). Appellant asserts that his choice to waive mitigation evidence was therefore not knowing, intelligent, and voluntary, because counsel ineffectively did not inform him of the pragmatic consequence of his declination of his right to present mitigation evidence.

A “criminal defendant has the right to decide whether mitigating evidence will be presented on his behalf.” Commonwealth v. Randolph, 582 Pa. 576 , 873 A.2d 1277, 1282 (2005) (quoting Commonwealth v. Reid, 571 Pa. 1 , 811 A.2d 530, 553 (2002); Commonwealth v. Sam, 535 Pa. 350 , 635 A.2d 603, 611 (1993)). “[A] capital defendant may waive the right to present mitigating evidence, so long as the waiver was knowing, intelligent, and voluntary.” Randolph, 873 A.2d at 1282 (quoting Commonwealth v. Davido, 582 Pa. 52 , 868 A.2d 431, 443 (2005)); Commonwealth v. Marinelli, 570 Pa. 622 , 810 A.2d 1257, 1275-76 (2002). This inquiry involves an examination of whether the defendant fully understood the nature of the right and the consequences of waiving it. Randolph, 873 A.2d at 1282 .

The Majority finds that because Appellant unequivocally directed counsel not to pursue a mitigation defense, and because this decision did not absolutely foreclose the potentiality of a penalty phase verdict of life in prison, rather than death, counsel cannot be ineffective for failing to follow Appellant’s direction. In reaching this conclusion, the Majority specifically rejects on three distinct bases Appellant’s assertion that counsel was ineffective for failing to inform him of the self-induced mortal peril resulting from his waiver of his right to present mitigation evidence. First, the Majority opines that while Appellant had been found guilty of rape and murder, this did not preordain imposition of the death sentence because the jury could have concluded that the victim’s death did not occur during the perpetration of the rape, see 42 Pa.C.S. § 9711(d)(6). Next, the Majority cites the Commonwealth’s burden of proving aggravators unanimously and be *735 yond a reasonable doubt, and, finally, the Majority notes the possibility of jury nullification.

Respectfully, I disagree with this analysis. As for the Majority’s assertion that the guilty verdicts as to the charges of rape and murder did not require the finding of a relationship between these charges, it is, of course, accurate that there is a distinction between the guilt phase question — did Appellant commit a rape and murder — and the penalty phase issue — was the murder committed during the perpetration of the rape. However, having found Appellant guilty beyond a reasonable doubt during the guilt phase of luring the victim to his place of employment, raping her, and then murdering her to prevent her from going to the police, I believe that the likelihood that the jury would decline to find the Section 9711(d)(6) aggravator was nonexistent.

As another basis for finding Appellant failed to prove ineffectiveness, the Majority refers to the Commonwealth’s burden of proving penalty phase aggravators beyond a reasonable doubt, and the requirement that the jury be unanimous. As already recounted, however, the Commonwealth had just concluded convincing the jury unanimously and beyond a reasonable doubt that Appellant had committed the rape and murder. It is difficult for me to see how the burden of proof or the mandate of juror unanimity would provide any impediment in the penalty phase.

Finally, the Majority asserts that counsel was not ineffective in this regard because of the jury’s alleged right to engage in nullification of the verdict. Jury nullification, however, has been channeled in capital sentencing proceedings into the process of balancing mitigating and aggravating factors. See Commonwealth v. Peterkin, 511 Pa. 299 , 513 A.2d 373, 387-88 (1986) (noting that “channeling of considerations of mercy and leniency into the scheme of aggravating and mitigating circumstances,” is consistent with alleviating the problems of potential jury nullification and arbitrariness identified in Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972) and Woodson v. North Carolina, 428 U.S. 280 , 96 S.Ct. 2978 , 49 L.Ed.2d 944 (1976)). See also Commonwealth v. *736 Graham, 541 Pa. 173 , 661 A.2d 1367 (1995). Although I agree with the Majority that it would be possible for a juror to hear the Commonwealth’s evidence in support of aggravators and reject it, I believe that because of the circumstances of the crime and the guilty verdict, such a possibility was remote at best, and so speculative that it does not obviate the merit of Appellant’s claim that counsel was ineffective. 1 In summary, because counsel did not tell Appellant that under these circumstances the failure to present mitigation evidence would certainly lead to a sentence of death, I do not believe that Appellant was fully informed of the consequences of his decision to waive mitigation as required for a valid waiver of this right. See Randolph, 873 A.2d at 1282 .

Notwithstanding my conclusion that this argument has arguable merit, I join the majority’s result, as I do not believe that Appellant has demonstrated prejudice arising from counsel’s failure to inform him of the consequence of his decision to waive participation in the penalty phase of this case. Consistent with my analysis herein, Appellant would not have been able to do anything to derail the jury’s finding of the (d)(6) aggravator. Indeed, Appellant himself acknowledged as much during the colloquy when he informed the court that he did not believe that he had any chance of prevailing and obtaining *737 a life sentence. Moreover, in Appellant’s brief he notes that he believed “he would have no chance for a life sentence.” Brief for Appellant at 77. Apparently, this belief originated in Appellant’s perception of the respective burdens of proof: Appellant felt that because he had lost in the guilt phase, where he had no burden, he would not be able to prevail in the penalty phase, where the defense had a burden of proving mitigating circumstances by a preponderance of the evidence. See 42 Pa.C.S. § 9711(c)(1)(iii). Accordingly, notwithstanding the arguable merit of Appellant’s claim, it fails under the prejudice prong of Commonwealth v. Pierce, 515 Pa. 153 , 527 A.2d 973 (1987). See also Commonwealth v. McGill, 574 Pa. 574 , 832 A.2d 1014 (2003). Thus, I am ultimately able to join the Majority’s disposition of this claim.

Finally, in addressing a different assertion of appellate counsel ineffectiveness, the Majority states that where appellate counsel raised an issue in post-trial motions, and then abandoned that issue on direct appeal, this sequence ensures that the decision not to pursue the issue on direct appeal was reasonable. Majority Op. at 685-86, 960 A.2d at 28. I wish to distance myself from this point to the extent it suggests that an appellant could never prevail on a claim of appellate counsel ineffectiveness where appellate counsel raised an issue in his post-trial motions and then abandoned it on direct appeal. Surely it is possible for an appellant to claim appellate counsel ineffectiveness for failing to preserve an issue on direct appeal, after raising and arguing the issue in post-trial motions.

. The Majority relies on Commonwealth v. Powell, 956 A.2d 406 , 2008 WL 4345227 (Pa.2008) to assert that "where the jury has the power, there is always the prospect of nullification.” Majority Op. at 715, n. 32, 960 A.2d at 46, n. 32. I find the Majority’s reliance on Powell curious. In Powell, the jury balanced a non-statutory mitigator ("mercy”) against three aggravators and sentenced the appellant to death. Chief Justice Castille, writing for the Majority, specifically disapproved of the jury's attempt to exercise mercy or sympathy in the absence of specific mitigators. Id. 2008 WL at *16, 956 A.2d at 427 (“Of course, a jury may consider mercy or sympathy when weighing specific aggravating and mitigating factors, but it may not exercise its sense of mercy or sympathy in a vacuum____[It] must correspondingly bottom any such exercise of mercy or sympathy on the evidence of specific mitigators.”). In contrast to Powell’s explicit disapproval of the jury's attempt to consider mercy, the Chief Justice is now asserting that the jury can, in fact, exercise mercy even though Appellant decided to forgo presenting any mitigation evidence whatsoever, thereby precluding the channeling of mercy through the finding of a mitigator. Thus, it appears that the Chief Justice has disapproved of the jury's exercise of mercy in Powell, while taking the contrary position sub judice that the jury may always nullify the verdict.