# Commonwealth v. Lesko > Supreme Court of Pennsylvania · February 24, 2011 · 609 Pa. 128 URL: https://www.frixlaw.com/law-library/cases/9770085 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellee v. John C. LESKO, Appellant; Commonwealth of Pennsylvania, Appellant v. John C. Lesko, Appellee; Commonwealth of Pennsylvania, Appellee v. John C. Lesko, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** February 24, 2011 - **Citations:** 609 Pa. 128; 15 A.3d 345 - **Precedential status:** Published - **Opinion:** Concurrence by Saylor - **Judges:** Baer, Castille, Eakin, McCAFFERY, Melvin, Orie, Saylor, Todd - **Cited by:** 380 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9770085 ## How later opinions describe it (automated extraction) - explaining that “if a party is indigent, and is entitled to taxpayer-provided transcripts or portions of the record, he will not be assessed costs. But, that does not absolve the appellant and his lawyer of his obligation to identify and order that which he deems necessary to … - finding that because the petitioner “did not establish any ground for deeming counsel per se ineffective,” and did not establish a lack of reasonable basis through trial counsel’s testimony at the PCRA hearing, he failed to sustain his burden of proof - stating that, “[g]enerally, where matters of strategy and tactics are concerned, counsel’s assistance is deemed constitutionally effective if he chose a particular course that had some reasonable basis designed to effectuate his client’s interests.” - holding that where judgment of sentence was final prior to 1995 amendments and petition in question was serial petition, tolling provision did not apply; serial petition filed after effective date of amendments, January 16, 1996, was untimely - holding that where matters of strategy are concerned, counsel’s assistance is deemed constitutionally effective if counsel chose a particular course of action that had some reasonable basis designed to effectuate his client’s interests ## Opinion text Justice SAYLOR, concurring. I join Parts I, II, and 111(A), (B), (D), (E), (F), (G), and (I) of the Majority Opinion, as well as its holding. As to Part III(C), pertaining to trial counsel’s stewardship in the investigation and presentation of evidence in mitigation, I find the PCRA court’s conclusions relative to arguable merit and lack of reasonable strategy to be amply supported in the record. 1 However, I agree with the majority’s holding concerning prejudice. See Majority Opinion, at 193-98, 15 A.3d at 383-87. In this regard, I find this case to be very different from the Sattazahn decision, which I authored, and which is cited in the concurring and dissenting opinion. See Concurring and Dissenting Opinion, at 261-63, 15 A.3d at 424-26. In particular, *250 the penalty-phase presentation in Sattazahn was truly paltry. 2 Moreover, the little evidence that was presented there was of the humanizing type, see Sattazahn, 597 Pa. at 676 n. 8, 952 A.2d at 656 n. 8, as opposed to explanatory-type mitigation, which was presented in the Lesko resentencing proceedings at considerable length, see Majority Opinion, at 190-91, 15 A.3d at 381-82. See generally Commonwealth v. Brown, 582 Pa. 461, 521 , 872 A.2d 1139, 1174 (2005) (Saylor, J., dissenting) (discussing the differences between humanizing- and explanatory-type mitigation, as well as one court’s observation that “[w]e have rarely granted habeas relief based solely upon humanizing, rather than explanatory mitigation evidence in the face of extensive aggravating circumstances” (citation omitted)). Indeed, the present circumstances seem to me to be much closer to the scenario in Commonwealth v. Miller, 605 Pa. 1 , 987 A.2d 638 (2009), in which the Court recently affirmed a denial of post-conviction relief. See id. at 40-54 , 987 A.2d at 662-69 . 3 My reasoning in the present case is also similar to that supporting my concurrence in the denial of post-conviction relief in Commonwealth v. Cox, 603 Pa. 223, 290-91 , 983 A.2d 666, 707 (2009) (Saylor, J., concurring), Commonwealth v. Clayton, 572 Pa. 395, 407 , 816 A.2d 217, 223-24 (2002) (Saylor, J., concurring), and Commonwealth v. Bond, 572 Pa. 588, 622 , 819 A.2d 33, 53 (2002) (Saylor, J., concurring). . In particular, I agree with the PCRA court that trial counsel's eleventh-hour preparation in a capital case exemplifies the deficient stewardship. While the majority shifts the responsibility for any lapses from counsel to the mental-health expert, Dr. Levit, see Majority Opinion, at 190-92, 15 A.3d at 382-83, Dr. Levit appears to have been put in a very difficult situation, as he was contacted after the trial voir dire process already was underway. See, e.g., N.T., Dec. 15, 1999, at 183 (reflecting Dr. Levit’s testimony that he did not have time to elicit extensive information from family members, "nor was there time between the time I was contacted and the time of the trial to go into any depth”); accord Commonwealth v. Lesko, No. 681 C 1980, slip op. at 11 (C.P. Westmoreland Aug. 7, 2006) ("The inadequacy of Dr. Levit's evaluation *250 was further exacerbated by the fact that he was hired at the last minute.”). . In terms of quantity alone, the defense evidentiary presentation in Sattazahn spanned eight pages of the penalty-hearing transcript, see Commonwealth v. Sattazahn, 597 Pa. 648, 674 , 952 A.2d 640, 655 (2008); whereas, the defense presentation on resentencing in Lesko spans three volumes of the transcripts. . In Miller , for my part, I also differed with the majority finding of a reasonable strategy relative to a truncated mitigation investigation, but I did not reach the prejudice issue in Miller as I felt additional development was required in the post-conviction court. See Miller, 605 Pa. at 67-72 , 987 A.2d at 678-80 (Saylor, J., dissenting). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9770085. Public record. Not legal advice.