Commonwealth, Aplt. v. Solano, R. ( 2015 )

[J-56A-2014 and J-56B-2014] [MO: Eakin, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 686 CAP
:
Appellant : Appeal from the Order entered on
: 09/13/2013 in the Court of Common
: Pleas, Criminal Division of Lehigh
v. : County at No. CP-39-CR-0001114-2002
:
: SUBMITTED: May 29, 2014
RAYMOND SOLANO, :
:
Appellee :
COMMONWEALTH OF PENNSYLVANIA, : No. 687 CAP
:
Appellee : Appeal from from the Order entered on
: 09/13/2013 in the Court of Common
: Pleas, Criminal Division of Lehigh
v. : County at No. CP-39-CR-0001114-2002
:
: SUBMITTED: May 29, 2014
RAYMOND SOLANO, :
:
Appellant :
DISSENTING OPINION
MR. JUSTICE STEVENS DECIDED: December 21, 2015
I respectfully dissent from the Majority’s decision to affirm the PCRA court
decision awarding Raymond Solano (“Solano”) a new penalty phase based on penalty
counsel’s (“counsel”) alleged ineffectiveness in presenting mitigating evidence regarding
his traumatic childhood and its impact on his mental health.
The Majority acknowledged that counsel’s strategy to humanize Solano by
portraying him as a likeable young man with a troubled childhood was plausible;
however, the Majority then determined that counsel “despite her good intentions of
garnering the jury’s compassion for Solano, did not employ the means necessary to
achieve this end.” Majority Opinion at 67. I respectfully disagree.
While counsel may not have been experienced in trying capital cases, “[t]his
Court has consistently stated that inexperience alone is not equivalent to
ineffectiveness.” Commonwealth v. Blystone, 555 Pa. 565, 725 A.2d 1197, 1205 (1999)
(citation omitted).
As the Majority outlined supra, each of Solano’s four penalty-phase witnesses
testified as to his mother’s neglect, severe drug abuse, and arrest that predicated his
time in foster care. Moreover, each witness identified Solano as a “funny, kind,
cooperative” child. These four witnesses conveyed to the jury all of the points in
support of counsel’s “humanizing” strategy. Specifically, the testimony outlined
“[Solano’s] traumatic upbringing, his mother’s extensive drug history, his time in foster
care, as well as the fact that he was generally a likeable, funny child who performed well
in a structure[d] environment.” Commonwealth’s Brief at 21. This testimony clearly had
an impact on the jury, as the panel found that the catch-all mitigator had been
established.
At the PCRA hearing, Solano presented potential mitigating evidence through
testimony from several witnesses including additional family members and teachers, as
outlined by the Majority. While each witness provided an in-depth analysis of both
Solano’s and his mother’s disturbing childhoods, such evidence was cumulative of the
evidence already presented by counsel at the penalty phase.
It is my belief that the PCRA court and the Majority relied too heavily on
counsel’s testimony wherein she “f[ell] on her proverbial sword and assert[ed] that she
[J-56A-2014 and J-56B-2014] [MO: Eakin, J.] - 2
did not have a reasonable basis for not doing what [Solano] now claims she should
have done.” Commonwealth’s Brief at 23.
The Majority opinion may open the door for some defense attorneys to purposely
deliver a sub-par penalty phase performance, claim their own ineffectiveness during
PCRA proceedings in order for their client to be awarded a new penalty phase trial.1
While it is imperative public defenders and criminal defense firms assign capital
cases to experienced attorneys, in this case the fact that counsel maintains that she
was inexperienced does not negate the fact that the defendant received a full and fair
trial. I respectfully dissent and would reverse the order granting Defendant a new
penalty phase trial.
1 See, e.g., Commonwealth v. Spotz, 610 Pa. 17, 176, 18 A.3d 244, 339 (2011)
(Castille, CJ., concurring) (where Chief Justice Castille admonished the tactics
employed by the Federal Defenders to “exhaust[ ] the time and resources of the
Commonwealth and the state judiciary”).
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