Commonwealth v. Jones

Justice EAKIN

Concurring and Dissenting.

I join in the majority’s disposition, with the exception of its remanding on the basis of counsel’s ineffectiveness for failing *252 to investigate and present mitigating evidence of appellant’s inability to appreciate the criminality of his conduct. I also join the concurring and dissenting opinion of Justice Castille.

Although the PCRA court found there was substantial information available at the time of trial to support the (e)(3) mitigator, I do not believe the existence of such evidence in this ease automatically means trial counsel was bound to present it on pain of being constitutionally ineffective.

Although this Court must defer to the credibility findings of the PCRA court in cases where contested material facts are at issue, the determination of the reasonableness of counsel’s conduct under the Sixth Amendment — the performance prong of Strickland — is not one warranting any particular deference to the PCRA hearing judge, particularly where, as here, that judge is not the same judge who presided at trial. Cf. Williams v. Taylor, 529 U.S. 362, 396-99 [, 120 S.Ct. 1495 , 146 L.Ed.2d 389 ] (2000).

Commonwealth v. Collins, 585 Pa. 45 , 888 A.2d 564, 590 (2005) (Castille, J., joined by Eakin, J., concurring and dissenting).

The majority relies on Wiggins v. Smith, 539 U.S. 510 , 123 S.Ct. 2527 , 156 L.Ed.2d 471 (2003) and Williams v. Taylor, 529 U.S. 362 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000), in requiring that counsel investigate reasonably mitigating evidence of childhood abuse, family dysfunction and neglect, and mental health deficits. In Commonwealth v. Gorby, 587 Pa. 417 , 900 A.2d 346 (2006), this Court cited these cases “for the proposition that capital counsel have an obligation to pursue all reasonably available avenues of developing mitigating evidence.” Id., at 362.

At the time of appellant’s trial in 1983, however, these cases had not been decided, and the degree of investigation required for capital counsel to be deemed not ineffective had not evolved to the extent currently required. “The. requirement that counsel[’]s conduct be viewed in light of contemporaneously-governing law is central to any rational assessment of a claim of ineffectiveness.” Commonwealth v. Hughes, 581 Pa. 274 , 865 A.2d 761, 818 (2004) (Castille, J., joined by Eakin, J., *253 concurring and dissenting). My esteemed colleague addressed this concern in Gorby , where the defendant’s trial occurred in 1985, and the PCRA court held appellate counsel was ineffective in 1990 for failing to raise trial counsel’s failure to present mitigating evidence:

The law apparently is changing in this area, and what used to be viewed as reasonable attorney performance at trial is now labeled, in hindsight, unreasonable as a matter of law. I continue to find it difficult to blame counsel retroactively for failing to predict new obligations and refinements in obligations imposed by courts literally decades after counsel’s conduct occurred.

* ❖ ifc

Moreover, to prove counsel incompetent, in 1990, for failing to raise this sort of ineffectiveness claim, one must consult the then-existing legal landscape. The fact that later decisions of this Court and the U.S. Supreme Court have faulted the penalty phase investigations of certain trial lawyers, under certain facts, does not necessarily prove that all reasonable appellate lawyers were required to raise such claims in 1989-90, which is when appellant’s direct appeal was briefed and argued by counsel. In my view, appellant has not discharged his affirmative burden of rebutting the presumption that appellate counsel’s performance nearly two decades ago was reasonable under the law prevailing at the time.

Gorby , at 366-67 (Castille, J., joined by Eakin, J., dissenting) (citation omitted) (emphasis in original).

Appellant was tried in 1983, prior to the defendant in Gorby , and his direct appeal was in 1992, shortly after that in Gorby . The same rationale expressed in the dissent in Gorby rings true here; at the time of appellant’s trial and direct appeal, the decisions of this Court regarding what is required of counsel during the penalty phase were not as exacting as today. See Gorby, at 366 (collecting cases).

Because I do not believe the reasonableness of counsel’s actions should be assessed under more stringent requirements *254 enunciated subsequent to the time of such actions, I would hold counsel’s performance was reasonable in the instant case. Appellant had no discernible mental health issues at the time of trial, and counsel had numerous lengthy conversations with him. See N.T. PCRA Hearing, 7/23/01, at 151, 166, 183. Counsel discussed appellant’s school records, interviewed witnesses, employed an investigator, and talked to appellant’s mother about his family background and childhood experiences. Id., at 151, 154, 158, 166-69,181-82. Based on counsel’s interactions with appellant, who was cooperative and appeared intelligent, counsel did not believe appellant needed to be evaluated by a mental health professional. 1 Id., at 154-55, 163, 166, 183. Indeed, appellant’s mental health expert testified he was not overtly psychotic, and the psychotic episodes he experienced were private and would not be evident to people observing him; he “would have needed to report his unusual perceptions to somebody in order for them to know about them____” Id., at 60-61. Appellant’s expert further admitted appellant initially denied to her that he had any unusual psychological experiences, until he became tired and worn down. Id., at 23-24. As this Court noted in Commonwealth v. Bond, 572 Pa. 588 , 819 A.2d 33 (2002):

The reasonableness of counsel’s investigation and preparation for the penalty phase ... depends critically upon the information supplied by the defendant. Counsel cannot be found ineffective for failing to introduce information uniquely within the knowledge of the defendant and his family which is not provided to counsel.

Id., at 45-46 (citation omitted).

In Commonwealth v. Fears, 575 Pa. 281 , 836 A.2d 52 (2003), we held counsel was not ineffective for failing to present a defense psychiatric expert in support of mitigation, where the defendant did not display overt psychotic behavior, did not inform counsel of any mental impairment, and the defense expert testified at the PCRA hearing that a mental condition *255 may not be apparent from casual conversation or even psychiatric interviews. We observed:

Counsel has a duty to undertake reasonable investigations or to make reasonable decisions that render particular investigations unnecessary.... [A]n evaluation of counsel’s performance is highly deferential, and the reasonableness of counsel’s decisions cannot be based on the distorting effects of hindsight. Furthermore, reasonableness in this context depends, in critical part, upon the information supplied by the defendant. Thus, assuming a reasonable investigation, where there is no notice to counsel of particular mitigating evidence, he cannot be held ineffective for failing to pursue it.

Id., at 71-72 (quoting Commonwealth v. Basemore, 560 Pa. 258 , 744 A.2d 717, 735 (2000) (citations omitted)) (emphasis added). See also Commonwealth v. Miller, 560 Pa. 500 , 746 A.2d 592 (2000) (counsel not ineffective for failing to present history of abuse where neither appellant nor his family revealed such information to counsel); Commonwealth v. Rollins, 558 Pa. 532 , 738 A.2d 435 (1999) (counsel not ineffective for failing to present mental health mitigating evidence where counsel had no reason to know appellant might have mental problem); Commonwealth v. Holland, 556 Pa. 175 , 727 A.2d 563 (1999) (counsel not ineffective for failing to call mental health expert at penalty phase, where forensic psychiatrist’s reports and previous pre-sentence reports indicated appellant did not suffer from major mental illness); Commonwealth v. Howard, 553 Pa. 266 , 719 A.2d 233 (1998) (counsel not ineffective where no evidence counsel had notice appellant had any mental illness); Commonwealth v. Uderra, 550 Pa. 389 , 706 A.2d 334 (1998) (counsel not ineffective for failing to investigate appellant’s history of psychological problems where appellant never revealed such information to counsel).

Based upon the case law regarding ineffectiveness for failing to present mitigating evidence prior to Williams and Wiggins , I would conclude counsel’s performance was not deficient; in all other aspects, I join the majority’s decision.

. Trial counsel further testified he did not think the introduction of character evidence would have been appropriate "in view of [appellant’s] prior convictions.” Id., at 169.