holding trial counsel cannot be held ineffective in failing to object to a medical examiner’s expert testimony where the testimony was fairly within the scope of the medical examiner’s expertise
How later courts described this case
- holding trial counsel cannot be held ineffective in failing to object to a medical examiner’s expert testimony where the testimony was fairly within the scope of the medical examiner’s expertise
- "[D]efense counsel's decision was not a tactical one made after weighing all of the alternatives, but was based on the fact that he had failed to interview and prepare potential character witnesses, and consult with his client thereto. These failures by counsel were precipitated by defense counsel's perception that familial character witnesses were per se worthless." (quotation omitted)
- “[Djefense counsel’s decision was not a tactical one made after weighing all of the alternatives, but was based on the fact that he had failed to interview and prepare potential character witnesses, and consult with his client thereto. These failures by counsel were precipitated by defense counsel’s perception that familial character witnesses were per se worthless.” (quotation omitted)
- trial court improperly invaded the sole province of the jury when it instructed the jurors that lack of unanimity in finding the existence of a mitigating circumstance must be considered when weighing whether aggravating circumstances outweighed mitigating circumstances
Written by the judges who cited it.
The opinion
PAPADAKOS, Justice,
dissenting.
I must dissent from the conclusion reached by the Majority in this case that trial counsel was ineffective for failing to object to the trial court’s charge to the jury concerning the weighing and evaluation procedures to be employed in determining whether the aggravating circumstances found outweighed the mitigating circumstances. Our sentencing scheme allows an individual juror to consider and weigh for himself or herself whether mitigating circumstances exist in any case and whether their existence mitigates in favor of life or death. Commonwealth v. O’Shea, 523 Pa. 384, 410 , 567 A.2d 1023 (1990); Commonwealth v. Frey, 520 Pa. 338 , 554 A.2d 27 (1989). Accordingly, any charge should be reviewed in light of this standard to insure that no juror is prevented from assessing for himself or herself whether mitigating eir *178 cumstances, when found by a particular juror, outweigh in his or her mind the aggravating circumstances found by the entire jury.
Here, the Majority complains that when the trial judge told the jury they must take into consideration the fact a particular mitigating circumstance was not found unanimously, the trial judge channelled the jury into believing that a particular weight had to be accorded a mitigating circumstance in proportion to the number of jurors who found that particular circumstance to be present. While this is an interesting interpretation of the trial court’s charge, I do not believe it to be the “unavoidable” meaning to be assigned to this language or that the trial court interfered with the province of the jury in delivering this charge.
In pertinent part, the language of the charge was as follows: “As I told you before, the mitigating circumstances need not be unanimous. However, if they are not unanimous, then you must take that into consideration when you are weighing whether the mitigating outweigh the aggravating.”
As I read this language, the trial court was speaking to the jurors individually in light of the first sentence which explains that mitigating circumstances can be properly found by less than unanimous vote. As I read the next sentence, the trial court is still addressing the jurors individually because he is discussing mitigating circumstances that are found by less than the full jury and simply tells them that, in spite of their lack of unanimity on a particular mitigating circumstance, the individual juror who finds mitigating circumstances must nonetheless “take that into consideration,” i.e., consider the mitigating circumstance found by that juror when weighing whether the particular mitigating circumstance outweighs the aggravating circumstance which might have been found by the full jury. In other words, the individual juror who finds a particular mitigating circumstance is still required to consider the impact of this circumstance in his deliberations even if the full jury did not agree with his or her finding of the presence of such a circumstance. Significantly, the trial court had just *179 finished telling the jurors in the preceding sentence that their findings with regard to mitigating circumstances would be accorded validity even if they were not unanimous, and for this reason I see no reason to read his second sentence in a way which calls into question the validity of what had just been characterized as a proper finding as the Majority has.
In my view, the charge fully complies with the statute’s goal in not precluding an individual juror from considering and weighing any mitigating circumstance in his or her deliberations and the ineffective assistance of counsel claim based on trial counsel’s failure to object to the charge is meritless. I would affirm the verdict and sentence of death.