Commonwealth, Aplt v. Bardo, M. ( 2014 )

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IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 650 CAP
:
Appellee :
: Appeal from the Order dated 12/30/11
v. : (docketed on 1/3/12) in the Court of
: Common Pleas, Criminal Division,
MICHAEL BARDO, : Luzerne County at No. CP-40-MD-
: 0002778-1992
Appellant :
:
COMMONWEALTH OF PENNSYLVANIA, : No. 651 CAP
:
Appellant :
: Appeal from the Order dated 12/30/11
v. : (docketed on 1/3/12) in the Court of
: Common Pleas, Criminal Division,
: Luzerne County at No. CP-40-MD-
MICHAEL BARDO, : 0002778-1992
:
Appellee : SUBMITTED: NOVEMBER 5, 2012
CONCURRING OPINION AND OPINION IN SUPPORT OF AFFIRMANCE ON
DOCKET NO. 651 CAP
MR. JUSTICE SAYLOR DECIDED: December 16, 2014
I join Part II of the per curiam opinion, captioned “Bardo’s Appeal (650 CAP),”
and thus, I support affirmance of the denial of guilt-phase relief.
As to penalty, however, I would credit the portion of the reasoning and holding of
the post-conviction court that is attached as an appendix, which I find to be sufficiently
supported by the record and free from error. In particular, contrary to the per curiam’s
repeated assertion that the post-conviction evidence was merely cumulative, I agree
with the PCRA court that the penalty-phase presentation “fail[ed] to synthesize readily
available life history evidence of mental illness, family dysfunction and physical and
sexual abuse into a coherent and persuasive case,” such that, “considering the nature
and quantity and quality of the evidence, [the PCRA hearing was] an entirely new
presentation.” Commonwealth v. Bardo, No. 2778 of 1992, slip op. at 37, 44 (C.P.
Luzerne Jan. 3, 2012). Accordingly, I would affirm the PCRA court’s grant of a new
sentencing hearing.
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Appendix
Excerpts from Commonwealth v. Bardo, No. 2778 of
1992, slip op. (C.P. Luzerne Jan. 3, 2012) (Toole, J.)
(footnotes omitted)
* * *
THE PENALTY PHASE
There is no factual or legal question that Bardo committed a horrific offense and
that the guilt phase record of the trial was more than sufficient to warrant and sustain
the verdicts of the jury. See Com. v. Bardo, 709 A.2d 871 (Pa. 1998). In view of the
verdict of first degree murder, the jury was charged with the responsibility of deciding
whether Bardo was to be sentenced to death or life imprisonment. 42 Pa. C.S.A. Sec.
9711(a).
As previously noted, the jury found two aggravating circumstances: (1) that the
defendant committed the killing while in the perpetration of a felony (42 Pa. C.S.A. Sec.
9711(d)(6)) and (2) that the victim was a child under 12 years of age (42 Pa. C.S.A.
Sec. 9711(d)(16)). Further, the Court submitted to the jury the following mitigating
circumstances upon which there was some evidence: (i) mother’s testimony, (ii) home
conditions, (iii) school records and background, (iv) acceptance of
responsibility/remorse, (v) willingness to plead, and the Court also advised the jury (vi)
“any other evidence in mitigation concerning the character and record of the defendant
and the circumstances of his offense.” The jury found the following mitigating factors:
(1) Bardo’s mother’s testimony, (2) his home conditions, (3) his school records and
background, (4) his acceptance of responsibility and/or remorse, and (5) his willingness
to plead. Each juror weighed the aggravating and mitigating circumstances and they
unanimously concluded that the aggravating circumstances outweighed any mitigating
circumstance, and returned a verdict of death.
This Court is now called upon to decide whether the jury in the penalty phase
heard and considered all of the evidence that was available and could have been
presented on the issue of mitigating circumstances. If not, did any lack of presentation
deny Bardo his constitutional right to a full, fair and impartial trial? The question we
must now consider and resolve is whether Bardo’s defense team’s evidentiary
presentation fell below the standard expected and required of counsel in a penalty
phase of a capital trial. Bardo now contends that the evidentiary presentation in the
penalty phase of his trial was constitutionally deficient because counsels failed to
introduce relevant evidence in their possession and failed to conduct a proper
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investigation which would have disclosed other substantial mitigation evidence and
circumstances which could and should have been submitted to the jury.
Ineffective Assistance
The test to be employed in considering ineffectiveness during a penalty stage is
succinctly set forth in Com. v. Paddy, 15 A.3d 431, 468, m. 23 (Pa. 2011). In that case
the Court reviewed applicable United States Supreme Court precedent and concluded
the ineffectiveness standard in the penalty phase remains that articulated in Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984):
Appellant relies primarily on three United States Supreme court decisions,
all of which were decided well after his trial, for his claim of trial counsel
ineffectiveness for failure to present life history mitigation evidence.
These cases are the following: Rompilla v. Beard, 545 U.S. 374, 125
S.Ct. 2456, 162 L.Ed. 2d 360 (2005); Wiggins v. Smith, 539 U.S. 510, 123
S.Ct. 2527, 156 L.Ed. 2d 471 (2003); Williams v. Taylor, 529 U.S. 362,
120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). . . .
[T]he cases cited by Appellant did not set forth any new constitutional
standards governing claims of ineffective assistance of counsel. The test
governing penalty-phase Counsels’ preparation and performance was –
and remains – Strickland v. Washington, 466 U.S. 668; 104 S.Ct. 2052, 80
L.Ed. 2d 674 (1984). See also Commonwealth v. Beasley, 600 Pa. 458,
967 A.2d 376, 390 (2009)(stating that “Lthe United States Supreme Court
has maintained that its opinions in the Williams and Wiggins line ‘made no
new law,’ but rather, represent an application of clearly established
precedent”). The Strickland test is materially identical to Pennsylvania’s
tripartite test for ineffective assistance of counsel. . . .
Very recently, in a series of opinions, the United States Supreme Court
has further clarified that Strickland continues to set forth the governing
standard for claims of ineffectiveness. See Bobby v. Van Hook, ___ U.S.
___, ___, ___, 130 S.Ct. 13, 16, 175 L.Ed.2d 255 (2009)(per
curiam)(reiterating that, pursuant to Strickland, criminal defendants are
entitled to “representation that does not fall below an objective standard of
reasonableness in light of prevailing professional norms,” and holding that
defense Counsels’ decision not to seek even more mitigating evidence
than the substantial amount he had already uncovered from the
petitioner’s background fell well within the range of professionally
reasonable judgments)(internal quotation marks omitted); Porter v.
McCollum, ___ U.S. ___, ___, 130 S.Ct. 447, 453, 175 L.Ed.2d 398(2009)(per curiam)(holding that defense Counsels’ decision not to
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investigate mitigating evidence “did not reflect reasonable professional
judgment,” where counsel had “not even take[n] the first step of
interviewing witnesses or requesting records[,] L ignored pertinent
avenues for investigation of which he should have been aware, L and
thus failed to uncover and present any evidence of [the petitioner’s] mental
health or mental impairment, his family background, or his military
service”); Sears v. Upton, ___ U.S. ___, ___, 130 S.Ct. 3259, 3264-67,
177 L.Ed.2d 1025 (2010)(per curiam)(explaining the prejudice inquiry
required under Strickland’s ineffectiveness standard).
15 A.3d 431, 468, n.23 (Pa. 2011).
Additionally, any trial court reviewing a capital case in the PCRA context must be
mindful of the Pennsylvania Supreme Court’s recent decision in Com. v. Gibson, 19
A.3d 512 (Pa. 2011). There the Court reversed a trial court’s determination that a
capital petitioner had, in fact, established prejudice as a result of trial counsel’s failure to
develop mental health mitigation evidence. The trial court determined there was a
reasonable probability that, had the information there considered been developed by
counsel, the defendant would have been able to convince at least one juror to strike a
different balance and vote to impose a life sentence. This, the trial court concluded, had
demonstrated prejudice and therefore granted a new penalty hearing. Id. 19 A.3d 523,
524.
On appeal, Petitioner argued the PCRA Court’s rulings must be reviewed
deferentially and further claimed the aforementioned probability existed because the
Defense expert witnesses – who were described as highly-qualified, experienced
psychiatrists – were credited by the trial court and provided significant and weighty
testimony establishing (e)(2), (e)(3) and (e)(8) mitigating circumstances. Additionally,
Petitioner argued the expert mental health testimony could have caused the jury to
attach more weight to a found mitigator and attach less weight to found aggravators.
Justice Saylor, writing for the Court, initially indicated the ineffectiveness claim
pertained only to the penalty phase of the trial, and the Supreme Court had previously
determined that the arguable-merit and no-reasonable-strategy aspects of the test had
been satisfied. The appellee was required to prove prejudice. To demonstrate
prejudice in the context of a penalty phase ineffectiveness claim, a petitioner must prove
“a reasonable probability that, but for trial counsel’s deficient performance, the outcome
of the proceeding would have been different because at least one juror would have
concluded that the mitigating circumstances outweighed, or were as weighty as the
aggravating ones.” Id. at 526. Justice Saylor further explained a “reasonable
probability” is a probability sufficient to undermine confidence in the death verdict that
the jury returned. In making this prejudice assessment, a reviewing Court must reweigh
the evidence in aggravation against the totality of available mitigating evidence, which
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includes the evidence presented at the penalty hearing and the evidence that would
have been presented had counsel conducted a proper investigation. Id. at 526.
The Supreme Court agreed with the trial court that the case assembled during
the PCRA hearing was indeed weightier than that presented to the original jury.
However, our highest Court disagreed with the trial court and concluded it was not
sufficient to undermine confidence in the outcome. Interestingly, the Opinion also notes
that a substance-abuse diagnosis and alcohol consumption there considered did not, in
and of themselves, support the concept that the defendant was under an extreme
mental or emotional disturbance at the time of the offense. Id. at 527.
“Just as importantly, jurors are aware of a substantial volitional component
involved in an individual’s decision to use drugs and alcohol (citation
omitted)(noting that, historically, voluntary intoxication has been viewed by
society as aggravating the severity of a given offense); (citation
omitted)(‘[V]oluntary intoxication is a self-indulgent act’ and ‘a person who
voluntarily consumes alcohol to the point of intoxication is, at the very
least, partially responsible for his injuries.”
Id. at 527.
The Supreme Court similarly rejected Petitioner’s argument regarding
consumption of alcohol on the night in question vis-à-vis mitigator (e)(3), noting “we
believe that the jury would have viewed appellee’s use of alcohol and/or drugs at the
relevant time as largely voluntary, particularly since there is no indication of chemical
addiction or dependence, and there is nothing in the record suggesting that alcohol
consumption impels persons to break the law, notwithstanding that it may lower his
inhibitions. Further, none of the experts testified that appellee’s intoxication was
overpowering or overwhelming.” Id. at 529.
Although the Supreme Court concluded the PCRA Court’s determination
appellee satisfied his burden to demonstrate a reasonable probability that at least one
juror would have found the (e)(8) mitigator – given the defense mental health experts
explanation of the appellee’s upbringing and risk of chronic substance abuse – it
nevertheless determined consideration of that factor would not have been reasonably
likely to alter the outcome.
Gibson also noted, where there is substantial aggravation, it may be particularly
difficult to prove Strickland prejudice based on additional mitigation submitted at the
post-conviction stage. Id. at 531 citing Smith v. Spisak, ___ U.S. ___, 130 S.Ct. 676(2010). The Opinion also acknowledged, while evidence of appellee’s dysfunctional
childhood is undoubtedly mitigating, it is not enough to undermine confidence in the
jury’s verdict.
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Trial courts have also been instructed that a bald allegation of prejudice
establishes nothing. Com. v. Birdsong, 24 A.3d 319, 341 (Pa. 2011). If all that can be
demonstrated is merely that a defense strategy did not work out as well as counsel
hoped, an ineffectiveness claim should not be granted. Id. at 319 citing Harrington v.
Richter, ___ U.S. ___, 131 S.Ct. 770, 790-92 (2011). In Birdsong, the Pennsylvania
Supreme Court affirmed the trial court’s denial, in the capital context, of numerous
ineffectiveness claims during both the guilt and penalty phase.
* * *
Specific Comparison
This Court is mindful of its obligation to develop a specific comparison of the
mitigating case presented at trial with the credited evidence offered on post conviction
review with the object of elaborating on why it is or is not reasonably probable that at
least one juror might have assigned weight to Bardo’s credited post conviction evidence
equal or greater to the aggravation found by the jury. See Com. v. Gibson, 951 A.2d
1122, 1123 (2008).
During the penalty phase of the trial, Bardo’s Trial Counsel presented testimony
from seven mitigation witnesses. The entire presentation by those witnesses is
reported in the record from page 703 to page 795, a total of 92 pages. That is
contrasted with the PCRA evidentiary presentation from seven witnesses presented on
behalf of Bardo which covered approximately 500 pages (pp. 5-595) and at least 41
identified exhibits. The Commonwealth, on the other hand, called one witness (Dr. John
S. O’Brien) whose evidentiary presentation covered 129 pages of the PCRA record (pp.
595-724). Our comparison follows:
THE PENALTY PRESENTATION
Bardo’s Trial Counsels’ evidentiary presentation is summarized as follows:
1. William Stephens, the Wilkes-Barre City health inspector, testified that, in
September of 1992, his department inspected the home where Bardo was
raised and discovered a large number of animals, and that it was infested with
fleas. N.T. Trial at p. 705.
2. Jackie Kostelac, a neighbor of the home where Bardo was raised, testified
that the noise coming from the Bardo residence was “loud” and “undesirable”
and that she had observed family members “fighting in the street.” Id. at 754-
55.
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3. Peter Truszkowski, the assistant principal at Plains Junior High School (the
last school Bardo attended) testified regarding Bardo’s school history. Id. at
710. He stated that he had reviewed Bardo’s entire school record and that he
had said records present with him in court. Id. He also testified that
communication was made with Bardo’s parents regarding academics,
discipline, and attendance, but “things did not change that much.” Id. at 718.
At age 15, Bardo went to the Children’s Service Center, which was “a service
that is provided to individuals that would be in need of help . . . help would be
family, help with school, help with one’s problems, help in order to get this
child to be able to function properly within a school setting.” Id. at 727-28.
Bardo dropped out of school in 9th grade at age 17. Id. at 717.
4. Charlotte Kordek testified that she taught Bardo sciene in 7th grade and was
his homeroom and study hall teacher for a short time in 8th grade. Id. at 730.
She described Bardo’s academic performance and appearance as poor, but
he was not a behavior problem. Id. at 730. She testified that it was
“extremely difficult” to contact Bardo’s parents, and “there was no
cooperation” on the one occasion contact was made. Id. at 732.
5. Arlene Yetter testified that she taught Bardo in 9th grade. Id. at 748. She
recalled that, at that time, he was 17 years old, married, and living with his
wife’s parents. Id. at 747-49.
6. Judith Wolfe, Bardo’s mother, testified that Bardo is the sixth of six children.
Id. at 756. Bardo’s biological father was an alcoholic, who attempted suicide
in front of her, and they divorced when Bardo was a year and a half or two
years old. Id. at 757-59. She testified that Bardo’s step-father, Dennis Wolfe,
did not support Bardo, i.e., was not a father figure. Id. at 763. She stated that
Bardo started drinking alcohol at approximately age 13. Id. at 764. At age
18, Bardo told her that, when he was younger, an adult male (“T.C.”) would
provide him with alcohol, “get him drunk,” and “sexually abuse him. Id. at
765-67. At age 16, Bardo married Dawn Havach, and they had two children,
Susie and Michael. Id. at 767-68. At one point in time, Bardo and his wife
lived in an empty warehouse. Id. at 770. Bardo’s mother asked the jury to
spare her son’s life. Id. at 773.
7. Finally, Bardo testified that he was 23 years old and divorced with two
children. Id. at 774. He testified that his mother was a good mother, and that
he did not know his biological father other than what he had heard, namely,
that his father was an alcoholic who cut his wrists. Id. at 775-76. His step-
father was “[n]ot really” involved with his life and did not do fatherly things with
him. Id. at 777. Bardo testified that he himself was an alcoholic, who started
drinking around 11 or 12 and would binge drink to the point of blacking out.
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Id. at 776, 779-80. When he was 13 or 14, he met T.C., who would buy him
beer and, on one occasion at T.C.’s house, Bardo woke up naked. Id. at 17.
Id. at 778, 781. At one point, he attended the Adolescent Learning Center at
the Children’s Service Center. Id. at 778, 788. He testified that he and his
wife lived “on the streets” for a while, sleeping in an old abandoned
warehouse. Id. at 790-91, Bardo testified that, in 1985, he and his wife tried
attempted suicide by taking prescription pills. Id. at 786. That same year, he
attempted suicide again by slitting his wrists. Id. at 787. He testified that, as
a result of those suicide attempts, he was hospitalized twice for a month at a
time. Id. at 786-87. Finally, Bardo accepted responsibility for the victim’s
death and asked the jury for mercy. Id. at 791-93.
THE PCRA PRESENTATION
Trial Counsels’ Failure to Discover and Present Evidence that, at the Time of the
Offense, Bardo Suffered from a Constellation of Serious Mental Disorders
Neil Blumberg, M.D., a forensic psychiatrist, testified during the PCRA hearing.
Dr. Blumberg opined there was significant mental health mitigation information which
could have been presented to the sentencing jury gleaned from the readily available
records at the time of trial. This evidence was not presented to the sentencing jury and
reveals both Bardo’s social history and a basis for several diagnoses strongly
supporting statutory mitigating factors.
Bardo’s social history was well-documented in voluminous contemporaneous
records available to Trial Counsel. Id. at 21-22, 79. These records, including Bardo’s
juvenile probation file and Luzerne County Children and Youth file, document Bardo’s
childhood neglect. See, Pet. Ex. 3, 4, 5, 6, and 7; N.T. PCRA at 32-37. Trial Counsel
failed to request any records pertaining to Bardo’s sibling or other family members. Id.
at 351-52. It is clear from the record that the degree and depth of neglect experienced
by Bardo, outlined in the aforesaid documents, was never presented to the sentencing
jury.
Bardo’s genetic predisposition to alcoholism and drinking at an early age was
also well-documented in records readily available to Trial Counsel. These records
included First Wyoming Valley Hospital records (Pet. Ex. 10, 11 and 17); Wilkes-Barre
General Hospital records (Pet. Ex. 13 and 14); Citations for Public Drunkenness (Pet.
Ex. 15, 16 and 39) and a 1986 letter from the Court Advocate Program (Pet. Ex. 12).
These records reveal Bardo’s father was an alcoholic with a history of suicide attempts
and that Bardo began drinking around the age of 11. N.T. PCRA at 20, 439, 533, 678-
79. As Bardo’s drinking escalated, he regularly experienced blackouts and a loss of
control, injuring himself and/or endangering others. Id. at 29, 43-47, 51-52, 55-58, 709.
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This evidence was not presented for the jury’s consideration during the sentencing
phase.
Bardo’s history of sexual victimization during childhood was similarly well-
documented in records readily available to Trial Counsel. These records included a
Multimodal Life History Questionnaire completed in 1988 (Pet. Ex. 23), an
Autobiography Outline also completed in 1988 (Pet. Ex. 24), an intake evaluation by
Community Counseling Services, dated July 27, 1988 (Pet. Ex. 25), and an
Investigative Report of February 27, 1988 (Com. Ex. 3). These records reflect a sexual
assault by an adult when Bardo was 13. Bardo and the adult male often engaged in
oral sex but, on one occasion, Bardo was drunk, passed out in the adult’s apartment
and woke up naked. The adult advised Bardo they had engaged in anal sex. N.T.
PCRA at 74-75, 78-81, 122-23, 154-55. This documentary evidence was not presented
to the sentencing jury except through uncorroborated family testimony.
Bardo’s psychiatric interventions were also well-documented in records readily
available to Trial Counsel. These records include Bardo’s Juvenile Probation File from
1983 (Pet. Ex. 8), West Wyoming Valley Hospital Social Service Assessment dated
7/31/85 (Pet. Ex. 17), Discharge Summary dated 9/17/95 (Pet. Ex. 18), Discharge Face
Sheet, dated 8/3/88 (Pet. Ex. 21). The juvenile probation file contains letters and notes
from 1983 recommending to Bardo’s family that he and his entire family should be
referred to Children’s Service Center for a psychiatric examination and that this
recommendation was not followed. See, N.T. PCRA at 38-40. In 1985, Bardo and his
girlfriend tried to commit suicide together. He was diagnosed with Major Depression,
Recurrent. Id. at 58-60. In 1988, Bardo tried to commit suicide again by cutting his
wrists after drinking five to six sixteen-ounce cans of beer and was involuntarily
committed by his mother. Id. at 61-63, 86. He was psychiatrically hospitalized for a
third time in 1988, diagnosed with Dysthymic Disorder and treated with Elavil, later
changed to another antidepressant and an antipsychotic because Bardo reported that
he began drinking again and was hearing voices. Id. at 66-69. This mitigating evidence
was not investigated and/or presented to the sentencing jury.
During the PCRA Hearing, Dr. Blumberg summarized the aforesaid records.
From extensive record review and interviews with Bardo, the witness learned of Bardo’s
childhood of poverty, neglect and physical abuse. N.T. PCRA at 12-17. He related
these records indicated Bardo was sexually abused as a child; that he began abusing
alcohol at around the age of eleven; that he was physically abused and neglected by his
parents; and, in describing Bardo’s home environment, that “[d]ysfunction is L a minor
description of what was going on. It was extremely chaotic, neglectful, abusive, and
that is well-documented in the records.” Id. at 19-21, 27.
Dr. Blumberg also described the lack of parental support and supervision Bardo
received regarding schooling. Bardo was physically neglected by his parents, even as a
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young child, and was sent to day care unwashed, unfed and in clothing that was dirty
and inappropriate for the weather. Id. at 25-27. Bardo also suffered physical abuse as
a child administered by his stepfather who would beat Bardo with a belt or paddle and
by his mother who would beat him using her hands or a switch. Id. at 27. Bardo was
also sexually abused as a child. When he was as young as twelve, he had oral sex with
a much older male adult and on one occasion was anally raped by that adult; Id. at 53.
Additionally, Dr. Blumberg opined Bardo had a genetic predisposition to
depression and alcohol abuse. Id. at 22-23. The alcohol abuse was so severe that he
often injured himself while intoxicated. Id. Bardo also attempted suicide as many as
twenty times. Id. at 27-28.
Based on Bardo’s social history as revealed through self-reporting and historical
records, Dr. Blumberg concluded Bardo suffered from the following mental illnesses at
the time of the offense: 1) Post-traumatic Stress Disorder, Chronic (PTSD), N.T. PCRA
at 18-19, 85-93; 2) Dysthymic Disorder, Early Onset, Id. at 18-19, 65-69; 3) Alcohol
Intoxication and Alcohol Dependency, Id. at 18-19, 40-65; 4) Personality Disorder Not
Otherwise Sepcified with Schizoid, Depressive and Inadequate Features, Id. at 18-19,
69-74; and 5) Pedophilia, Sexually Attracted to Females, Non-Exclusive. Id. at 18-19,
82-85. Based on these diagnoses, Dr. Blumberg concluded that Bardo was
substantially impaired in his capacity to appreciate the criminality of his conduct and to
conform his conduct to the requirements of the law. Id. at 93-97. Therefore, Bardo met
the substantially impaired statutory mitigating fact found at 42 Pa. C.S.A. Sec.
9711(e)(3). Id. In addition, Dr. Blumberg concluded Bardo suffered from an extreme
mental or emotional disturbance at the time of the offense and therefore, met the
extreme disturbance statutory mitigating factor under 42 Pa. C.S. Sec. 9711(e)(2).
Dr. Matthew Berger, a forensic psychologist, testified regarding Bardo’s
“childhood experiences” of “emotional neglect and abuse” as well as his abuse of
alcohol since the age of 11 (N.T. PCRA pp. 530, 533-34, 535-39, 540-43, 547-48, 567-
69, 569-70). Dr. Berger opined that Bardo suffered from: “major depression recurrent,
very possible dysthymic, and also at the time I saw him most recently, he had some
symptoms of post-traumatic stress disorder, and some of what he told me about the
events at the time would also indicate he had symptoms of PTSD.” Also, clearly from
the history alcohol/substance abuse chronic and long-term alcoholism were there and
present (N.T. PCRA p. 528). He also testified Bardo was a pedophile (PCRA p. 561,
581-82, 584-87, 592-93) as well as the conclusion that as a result of mental impairment
at the time of the offense, Bardo suffered from an extreme mental or emotional
disturbance (PCRA p. 549).
* * *
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The Commonwealth, as noted, called Dr. John O’Brien as an expert in forensic
psychology. Dr. O’Brien diagnosed Bardo with alcohol abuse by history, mixed
personality disorder including antisocial dependent and avoidant features. Dr. O’Brien
did not render a diagnosis of alcohol intoxication because there was no indication that
Bardo was overwhelmingly intoxicated to the extent of lacking his faculties and
sensibilities or impaired in his ability to formulate and carry out intentional behaviors
(PCRA pp. 645-48), nor did Dr. O’Brien find alcohol dependence because of lack of
withdrawal symptoms, evidence of escalating alcohol use and his ability to function
without apparent employment difficulties (PCRA pp. 642-648-50). Dr. O’Brien did not
find a post-traumatic stress disorder (PCRA pp. 611-13, 643, 650-57). Dr. O’Brien also
rejected the diagnosis of dysthymic disorder (PCRA pp. 657-60, 717) nor a pedophilia
diagnosis (PCRA pp. 643, 645, 660, 661). The Doctor also indicated his investigation
did not reveal any schizoid depressive and inadequate features (PCRA pp. 664-65) or
make a diagnosis of dysthymic and/or personality disorder NOS (PCRA p. 666).
We have heard and reviewed testimony given by the experts, particularly Dr.
Blumberg and Dr. O’Brien, and we are aware of the importance, particularly in a case of
this nature, that we assess the credibility of the experts. In that regard, we understand
that each of the experts have their opinion. We believe both are credible, but on the
basis of what we saw and what we heard, we are persuaded by and more comfortable
with the testimony presented by PCRA Counsel.
Trial Counsels’ Failure to Present Information Detailing Bardo’s Years of Mental
Health Treatment and Childhood of Neglect and Abuse
Trial Counsel failed to present readily available records which could have, at the
very least, corroborated the testimony presented at the penalty phase. More important,
this evidence would have formed the basis for additional mitigating factors for the jury to
utilize in the penalty proceeding. These records included those already contained within
Trial Counsels’ file, as well as other records concerning the Bardo family and Bardo’s
non-psychiatric hospitalization records.
As noted above, Trial Counsel had in their possession voluminous records
detailing Bardo’s extensive history of childhood neglect, physical and sexual abuse,
mental health disorders and mental health treatment. Records secured by Defense
Counsel prior to trial indicated, among other things, the following:
1) As a child Mr. Bardo was disciplined with beatings with a paddle or belt;
2) Throughout his teenage years, he had been sexually abused many times by
an adult male;
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3) He had been an alcoholic since the age of eleven and had suffered numerous
blackouts as a result of his abusive drinking;
4) He was observed to be an abuser of marijuana and glue sniffing at various
times;
5) He reported frequent headaches and hearing problems;
6) His parents disregarded early attempts to have him and his family undergo
psychiatric evaluation;
7) Between 1985 and 1988 he attempted suicide on at least three occasions;
8) In 1985 he had a psychiatric hospitalization, during which he was diagnosed
as suffering from Major Depression, Recurrent;
9) After a second psychiatric hospitalization that same year, he was diagnosed
with Major Depression, Recurrent, with an additional note of suicidal ideation;
10) He had a partial psychiatric hospitalization in 1986; and
11) During another hospitalization in 1988, he was diagnosed with Dysthymic
Disorder, Dependent Personality Disorder, Depression and an additional note
of suicidal ideation.
[(citations omitted)].
Apropos of Counsels’ stewardship, the Trial Judge was advised the Defense
intended to call as a witness a representative from Children’s Service Center during the
penalty phase in order to admit records concerning Bardo’s efforts at the program’s
Adolescent Learning Center (See, N.T. Trial at 745-746), and although two such
representatives were subpoenaed and available to testify, they were never offered.
See, N.T. PCRA at 422.
In addition, Trial Counsel failed to obtain the juvenile probation file of George
Bardo or the complete CYS file on the Bardo Family. See, N.T. PCRA at 351-352. Drs.
Blumberg and Berger underscored the importance of these undiscovered records to
their findings. Id. at 34-35, 540-41. Trial Counsel acknowledged these records should
have been employed during the mitigation phase of this case. Id. at 434, 348-49.
Finally, Trial Counsel failed to obtain the non-psychiatric hospitalization or school
records for Bardo. See, N.T. PCRA at 356-63. Drs. Blumberg and Berger related the
importance of the non-psychiatric hospitalization to their findings. Id. at 51-52, 536-37.
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Dr. Blumberg testified to the importance of the non-psychiatric hospitalization regarding
his opinions. Id. at 25-28.
Trial Counsels’ Failure to Use Available Mental Health Professionals
Trial Counsels’ penalty phase presentation was disjointed, scattered and
particularly ineffectual in its failure to synthesize readily available life history evidence of
mental illness, family dysfunction and physical and sexual abuse into a coherent and
persuasive case in support of mitigation. The penalty phase presentation could be
described as much too little and much too late.
The evidence presented during the PCRA hearing further establishes two mental
health professionals were available and informed Trial Counsel of their possible ability
to provide evidence in support of mitigating factors during the penalty phase.
Dr. Berger and Ned Delaney were available to accomplish that task. However,
Trial Counsel inexplicably failed to present these witnesses. Bardo’s legal
representation in this respect is, to say the least, troubling.
In or around December 1992, Trial Counsel retained Dr. Berger to evaluate
Bardo. See, N.T. PCRA at 519. Dr. Berger testified during the PCRA hearing he was
asked to focus on culpability issues and that penalty phase issues were “[c]learly not the
focus.” Id. at 520, 522. On December 24, 1992, less than a month before the start of
trial, Trial Counsel provided Dr. Berger with certain records. Id. at 520-21. These
records did not include all the records which were obtained by PCRA Counsel but
available to Trial Counsel in 1992 and 1993, with the exercise of due diligence.
On January 12, 1993, Dr. Berger wrote Trial Counsel that, after reviewing the
documents produced on December 24, 1992, and interviewing Bardo, “I feel I may be
able to assist you should this case go to the sentencing phase.” See, Letter from Dr.
Matthew Berger to Joseph Yeager of 1/13/93 (Pet. Ex. 35); See also, N.T. PCRA at
520. Because penalty phase mitigation had not been the “focus” of his initial interview,
Id. at 522, Dr. Berger informed Trial Counsel he would need to conduct another
interview. Id.; See also id. at 412-23; Note from Gino Bartolai to Joseph Yeager (Com.
Ex. 10), Trial Counsel, again inexplicably, failed to make the necessary arrangements
for Dr. Berger to see Bardo with a focus on potential avenues of mitigation. Id. at 522-
23.
Similarly, Mr. Delaney was not called as a witness during the mitigation phase of
the trial. Mr. Delaney advised Trial Counsel in his psychological evaluation of 1/27/93
that “The defendant’s initiation into a pattern of drug and alcohol abuse began at the
age of 11 and since that time the defendant gave a history of abusing marijuana, glue,
wood stain and alcohol. It should be noted that his current drug of choice is beer. . . .It
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also should be noted that psychological testing completed in 1988 also revealed a
propensity in attitude, behavior, and psychological makeup which would be concomitant
with factors contributing to drug and alcohol abuse behaviors. . . .As such, it is my
opinion that the history and current behavior of the defendant is consistent with the
diagnostic criteria established to determine alcohol abuse.” Psychological Evaluation of
1/27/93 (Pet. Ex. 30). See also, N.T. PCRA at 273-77. During the PCRA Hearing, Trial
Counsel testified that it would be fair to assume they read Mr. Delaney’s report. Id. at
477. However, Mr. Delaney was not called as a witness and Trial Counsel posited no
strategic or tactical reason for failing to do so. Id.
Each of the Aforesaid Failures of Trial Counsel Possesses Arguable Merit
Based on the above-described evidence, this Court concludes that Bardo’s claim
of Trial Counsel ineffectiveness in failing to present the aforesaid mental health
mitigation evidence has arguable merit. The Supreme Court’s opinion in Com. v.
Martin, 607 Pa. 165, 5 A.3d 177 (Pa. 2010) is most instructive on this issue, as the facts
of the instant matter are strikingly similar to those considered in Martin.
Martin upheld the PCRA Court’s determination that Trial Counsel was ineffective
during the penalty phase as well as its order directing a new sentencing hearing.
Specifically, “[a]t the penalty hearing, the defense relied upon two mitigating factors,
namely, the age of the defendant at the time of the incident (twenty-one), id. at Sec.
9711(e)(4), and any other evidence of mitigation concerning the character and record of
the defendant and the circumstances of his offense (“the catchall mitigator”). Id. at Sec.
9711(e)(8)” Id. at 198-98. In support of these statutory factors, Trial Counsel presented
only the defendant’s mother.
At the PCRA proceeding, Martin presented the mental health mitigating evidence
he contended Trial Counsel overlooked, i.e. two (2) mental health experts who had
treated Martin for years and whose records were available at the time of trial and
confirmed Martin’s mental health diagnosis and extensive treatment. Id. at 198. The
third expert evaluated Martin after the murders, concurred with previous diagnoses, and
opined that the same supported the statutory mitigating circumstance set forth at 42 Pa.
C.S. Sec. 9711(e)(2). Id. at 199.
The Supreme Court upheld the PCRA Court’s determination that this issue had
arguable merit. The Opinion provides: “To the extent the PCRA Court’s conclusion of
arguable merit was based upon factual determinations, we find that there was record
evidence to support it. Likewise, we agree with the PCRA Court’s legal conclusion that
the claim of trial counsel ineffectiveness possessed arguable merit as the evidence
ignored was available to trial counsel at the time of the penalty hearing, and would have
supported two statutory mitigating circumstances that were not asserted by the
defense.” Id.
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At the very least, the evidence presented during the PCRA hearing established
there was mental health evidence found in records contained in Trial Counsels’ file
and/or in readily available records at the time of trial. This evidence is described above
and supported the multiple mental health diagnoses. This evidence and associated
diagnoses would have supported . . . the extreme disturbance statutory mitigating factor
under 42 Pa. C.S. Sec. 9711(e)(2). This evidence and/or diagnoses was not presented
at the penalty phase even though Dr. Berger advised Trial Counsel he could assist in
the penalty phase, and Mr. Delaney offered a report outlining several diagnoses and/or
factual underpinning of the same supporting a mitigating factor.
Accordingly, we find that that Bardo’s ineffectiveness claim has arguable merit.
Trial Counsels’ Failures Had No Reasonable Strategic or Tactical Basis
There is no question that adversarial choices made after less than a complete
investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation. See Com. v. Malloy, 856 A.2d 767,
788.
Trial Counsel, Joseph Yeager (Lead Counsel), Gino A. Bartolai, Jr. (Second
Chair Counsel) and William Ruzzo (Pro Hac Vice Counsel), were each called and
testified at the PCRA hearing. At the time of this case Second Chair Counsel was an
Assistant Public Defender for less then two years, and this was his initial homicide trial.
See N.T. PCRA at 330-331. He had no specific training in capital litigation, and to that
point his knowledge concerning capital mitigation was limited to informal meetings with
attorneys in the Public Defender’s Office. Id. at 331-332. Despite Mr. Bartolai’s obvious
inexperience in this regard, Lead Counsel inexplicably delegated to him primary
responsibility for preparation and presentation of the penalty phase, and he thereafter
provided little supervision. Id. at 332-333, 484. Indeed, Lead Counsel testified: “I have
no tactical, nor do I have any excuse for not having the discussions which obviously
should have occurred and, once again, that is my negligence and my fault that I did not
see that they did occur. I should have been watching over [Second Chair Counsel]
more closely.” Id. at 490.
Lead Counsel agreed he did not consider utilizing Mr. Delaney as a penalty
phase witness but should have done so based on the report. Id. at 477, 482-83. He
additionally admitted the defense team had no strategic or tactical reason for not calling
Dr. Berger as a penalty phase witness. Id. at 490. Lead Counsel also acknowledged
both the absence of a tactical reason for failing to present evidence of Bardo’s
depression and personality disorder and the efficacy of presenting contemporaneous
medical records. Id. at 491-93. Pro Hac Vice Counsel agreed with Lead Counsels’
assessment. He stated there was no tactical or strategic reason for the Defense’s
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failures in this case, including the failure to present mental health evidence to the
sentencing jury. Id. at 433, 443, 445, 449-50.
The only explanation for the decision not to call Dr. Berger during the penalty
phase was offered by Atty. Bartolai, who suggested Dr. Berger “really didn’t . . . have
much to say” and “there wasn’t much” he could offer. Id. at 378-79. However, as noted
above, on January 12, 1993, Dr. Berger wrote Trial Counsel indicating, after reviewing
the documents produced on December 24, 1992, and interviewing Bardo, “I feel I may
be able to assist you should this case go to the sentencing phase.” See, Letter from Dr.
Matthew Berger to Joseph Yeager of 1/13/93 (Pet. Ex. 35); See also, N.T. PCRA at
520. Because penalty phase mitigation had not been the “focus” of his initial interview
of Mr. Bardo, id. at 522, Dr. Berger informed Trial Counsel an additional interview was
necessary. Id.; See also id. at 412-23; Note from Gino Bartolai to Joseph Yeager (Com.
Ex. 10). Trial Counsel failed to arrange for Dr. Berger to see Bardo and explore
potential avenues of mitigation. Id. at 522-23. This lack of investigation is neither
strategic nor reasonable. Rather, the absolute failure of Trial Counsel to pursue Dr.
Berger’s suggestion he may be able to provide assistance is itself unreasonable
pursuant to Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed. 2d 471 (2003).
See also, Porter v. McCollum, ___ U.S. ___, ___, 130 S.Ct. 447, 453, 175 L.Ed.2d 398(2009) (per curiam)(holding that defense Counsels’ decision not to investigate mitigating
evidence “did not reflect reasonable professional judgment,” where counsel had “not
even take[n] the first step of interviewing witnesses or requesting records[,] L ignored
pertinent avenues for investigation of which he should have been aware, L and thus
failed to uncover and present any evidence of [the petitioner’s] mental health or mental
impairment, his family background, or his military service”).
Prejudice
This Court has had the opportunity to see and hear the witnesses presented at
both the penalty phase and the PCRA hearing. We have completed a review and
comparison of the records of both proceedings. Based upon that review and
comparison, we are satisfied and find that the legal representation provided to Bardo
during the penalty phase of this capital trial was for all the reasons cited herein
constitutionally deficient.
The Commonwealth contends that the testimony presented at the PCRA hearing
constitutes nothing more than “additional evidence”, and as such the claim of prejudice
fails under the holdings of Com. v. Rios, 920 A.2d 790 (2007) and Com. v. Marshall,
813 A.2d 539, 549 (2007). The cited cases hold that an “appellant fails to establish
prejudice in connection with an ineffectiveness claim based on counsel’s failure to
investigate and present additional evidence in support of a finding of mitigating
circumstances when that mitigating circumstances were already found to exist without
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the benefit of additional evidence.” We are not persuaded, however, that the cited
principle is or should be applicable to or dispositive of the issue of prejudice in this case.
The evidence presented in the PCRA hearing contained much more than
additional evidence. We understand and appreciate that one is not entitled to a new
sentencing hearing because of the post-trial discovery of a few items of additional
evidence or testimony. However, evidence presented in this PCRA hearing contained
for the first time expert testimony and volumes of corroborating records. It is true that
some of the evidence pertains to mitigating circumstances already found by the jury, but
for all practical and legal purposes, considering the nature and quantity and quality of
the evidence, this appears as an entirely new presentation.
In the penalty hearing, six jurors found no mitigating circumstances, while six
jurors found some or all of the five mitigating circumstances found by the jury, i.e. only
two found alcohol abuse. Bardo’s defense Counsel at the penalty hearing presented no
expert testimony, and accordingly, the applicability of the statutory mitigators: (1) “the
defendant was under the influence of extreme mental or emotional disturbance” (42 Pa.
C.S.A. Sec. 9711(e)(2) or (2) “The capacity of the defendant to appreciate the
criminality of his conduct or to conform his conduct to the requirements of law was
substantially impaired” (42 Pa. C.S.A. Sec. 9711(e)(3)) was not submitted, as such, to
the jury.
PCRA Counsel contends that the expert testimony presented by Blumberg and
Berger was in and of itself more than sufficient to submit the (e)(2) and (e)(3) mitigators
to the jury for their consideration. The Commonwealth contends that under the facts
and the law the (e)(3) mitigator was not appropriate. . . . Even if the Commonwealth is
correct that the evidence was not sufficient to warrant submission of the (e)(3) mitigator
to the jury, the very same evidence could and should have been presented for
consideration under the catchall (e)(8) mitigator.
There is no question that the jury unanimously agreed on the record presented to
them that the aggravating circumstances outweighed the mitigating circumstances. On
the basis of the evidence they saw and heard, we have neither right nor inclination to
disturb that finding. The question is not what did they do, but rather what would one or
more of the jurors have done if they saw the witnesses and heard the evidence this
Court did in the PCRA hearing.
What we believe and hold is that the record presented at the PCRA hearing is
significantly different in nature, quality and quantity than that presented to and heard by
the jury at the penalty phase of the proceeding. The picture presented to the death
penalty jury and that submitted to this Court in the PCRA hearing are as different as
night and day. The picture painted at the PCRA hearing presented a far different and
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more illuminating picture of the mitigating circumstances than that presented to and
found by the trial jury.
This Court is obviously unable to state with certainty what any juror would do if
they heard the PCRA presentation, nor can we say it is highly improbable or even
improbable that any juror would have considered this evidence to be sufficiently
significant such that, hearing the testimony, it would have imposed a life sentence.
Determining the weight of any evidence is not easy. Sometimes critical evidence is
reluctantly accepted when it is presented through the accused or his family and friends.
Evidentiary presentations by such witnesses are more readily accepted, credited
and weighted when they are presented by credible professionals and/or from
corroborating documentary evidence, like Children and Youth’s, hospital and school
records. The question of weight sometimes turns or depends upon the slightest
inclinations of scale. Even the smallest feather of additional evidence may be indeed
sufficient to tip the scale. As we sit in judgment and review and compare the trial and
PCRA records and see what was and what could have and should have been
presented, we can say that this Court has had its confidence in the verdict shaken.
When, as the weighmaster, this Court places the credible evidence of the
Commonwealth on one side of the scale and the credible and persuasive evidence of
the PCRA hearing on the other, our scale tips in favor of Bardo.
We are satisfied and hold that there is a reasonable probability that had the
PCRA evidence been introduced at the penalty phase of Bardo’s capital murder trial,
one or more jurors were reasonably likely to have found additional mitigating
circumstances and that those mitigating circumstances outweighed the aggravating
circumstances. We therefore find the predicate prejudice has been established.
* * *
Conclusion
We do not hold nor should our decision be construed to mean that the death
penalty is not appropriate or should not be imposed in this case. All we hold is that
before the ultimate penalty is imposed in any capital trial, the sentencing jury should
have the right and opportunity to hear all of the available evidence before deciding the
presence and weight of any aggravating or mitigating circumstances. Only then can a
jury properly employ the scales of justice fairly and correctly determine which side
outweighs the other. It may well be that even after hearing all of the PCRA testimony,
the jury will find that the aggravating circumstances of the case still outweigh the
mitigating circumstances. Whatever happens, at least we will know the decision was
based on all the available evidence and not a truncated record. What we find and
declare is Trial Counsels’ stewardship during the penalty phase of the trial was
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constitutionally deficient, and accordingly, we vacate the sentence of death and grant a
new sentencing hearing.
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