Commonwealth, Aplt v. Pelzer, K. , 628 Pa. 193 ( 2014 )

[J-13A&B & 14A&B-2013]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, STEVENS, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 631 CAP
:
Appellant : Appeal from the Order entered on August
: 26, 2011 by the Court of Common Pleas,
v. : Criminal Division, of Philadelphia County
: at No. CP-51-CR-1031751-1988
HENRY DANIELS, :
:
Appellee : SUBMITTED: February 12, 2013
:
COMMONWEALTH OF PENNSYLVANIA, : No. 632 CAP
:
Appellee : Appeal from the Order entered on August
: 26, 2011 by the Court of Common Pleas,
v. : Criminal Division, of Philadelphia County
: at No. CP-51-CR-1031751-1988
HENRY DANIELS, :
:
Appellant : SUBMITTED: February 12, 2013
:
:
:
:
COMMONWEALTH OF PENNSYLVANIA, : No. 633 CAP
:
Appellant : Appeal from the Order entered on August
: 26, 2011 by the Court of Common Pleas,
v. : Criminal Division, of Philadelphia County
: at No. CP-51-CR-1031752-1988
:
KEVIN PELZER, :
:
Appellee : SUBMITTED: February 12, 2013
:
:
COMMONWEALTH OF PENNSYLVANIA, : No. 634 CAP
:
Appellee : Appeal from the Order entered on August
: 26, 2011 by the Court of Common Pleas,
: Criminal Division, of Philadelphia County
v. : at No. CP-51-CR-1031752-1988
:
:
KEVIN PELZER, :
:
Appellant : SUBMITTED: February 12, 2013
OPINION
MR. CHIEF JUSTICE CASTILLE DECIDED: October 30, 2014
These twin capital cross-appeals involve co-defendants Henry Daniels and Kevin
Pelzer (“Daniels” and “Pelzer,” or collectively “appellees”) and represent a continuation
of their first collateral challenges to their convictions under the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. By Opinion filed on January 23, 2009, this
Court vacated the PCRA court’s March 25, 2003 order, which had granted appellees a
new trial. The Court reviewed three claims of trial counsel ineffectiveness, denied relief
on all three claims, and remanded the case to the PCRA court for the preparation of an
opinion addressing the remainder of appellees’ claims. Commonwealth v. Daniels and
Pelzer, 963 A.2d 409 (Pa. 2009). On remand, the PCRA judge having retired, a new
judge ordered a new penalty proceeding for each appellee, while denying guilt phase
relief. The PCRA court explained its reasoning in an opinion dated November 22, 2011.
The Commonwealth appeals from the grant of penalty phase relief in each case,
while appellees, in separate cross-appeals, seek review of additional issues upon which
the PCRA court denied relief. For the reasons set forth below, we affirm the order of the
PCRA court as it relates to Kevin Pelzer, but reverse the order as it relates to Henry
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Daniels. Thus, Pelzer is denied guilt phase relief, but the award of a new penalty phase
hearing to him is affirmed, and Daniels’s PCRA petition is dismissed in its entirety.
The facts and procedural history are not recounted at length given that a full
history of the case was set forth in our initial review of these collateral proceedings in
Daniels and Pelzer, and in the direct appeal opinions reported at Commonwealth v.
Daniels, 612 A.2d 395 (Pa. 1992) (Opinion in Support of Affirmance) and
Commonwealth v. Pelzer, 612 A.2d 407 (Pa. 1992) (Opinion in Support of Affirmance).
As relevant here, appellees were tried jointly before a jury. Daniels was
represented at trial by Charles Houston, Esquire, a South Carolina lawyer hired by
Daniels’s family and granted pro hac vice status, with John Drost, Esquire, a
Pennsylvania attorney and Daniels’s original trial counsel, appointed as standby
counsel. Pelzer was represented by Donald Padova, Esquire. Appellees obtained new
counsel for purposes of their direct appeals. All prior counsel testified during the PCRA
hearings with the exception of Mr. Houston.
The guilt phase evidence established that appellees participated in a plan to
kidnap and hold for ransom sixteen-year-old Alexander Porter. Appellees kidnapped
the victim, bound and gagged him, and placed him in the trunk of his car. Ultimately,
they determined to kill the victim. In all, the victim was held in the trunk for twenty-four
hours. According to appellees’ police statements and Daniels’s trial testimony,
appellees were unable to determine whether the youth was dead when they went to
dispose of his body. Pelzer shot Porter four times in the back of the neck to remove all
doubt. The jury found both appellees guilty of first-degree murder and other offenses.
Following a capital penalty hearing, the jury found the same four aggravating
circumstances and two mitigating circumstances with regard to each appellee and
further found that the aggravating circumstances outweighed the mitigating
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circumstances; accordingly, the jury fixed the murder penalty at death for each appellee.
See 42 Pa.C.S. § 9711(c)(1)(iv). The trial court formally imposed the sentences of
death on November 14, 1989. On April 23, 1990, the trial court sentenced each
appellee to an aggregate, consecutive term of twenty-five to fifty years in prison for his
remaining crimes. The Supreme Court affirmed the sentences of death on direct
appeal. Daniels, 612 A.2d at 397-98; Pelzer, 612 A.2d at 410. Daniels filed for
reconsideration, which was granted. Subsequently, the Court again affirmed the
judgment of sentence, this time by a 4-3 majority vote. Commonwealth v. Daniels, 644
A.2d 1175 (Pa. 1994) (per curiam).
Appellees filed timely pro se PCRA petitions and new counsel entered their
appearances and filed amended petitions, which were followed by many supplemental
petitions. The PCRA petitions were assigned to the Honorable James A. Lineberger,
because the trial judge was no longer sitting on the bench, and Judge Lineberger
considered the cases together.
The PCRA court held a hearing at which it reviewed the twenty-one collective
claims submitted by appellees. The court granted an evidentiary hearing on seven
claims and granted the Commonwealth’s Motion to Dismiss the remaining claims. The
seven issues to be considered at the evidentiary hearing were: (1) trial counsel
ineffectiveness for failing to object to the trial court’s instruction on accomplice liability,
(2) trial counsel ineffectiveness for failing to adequately investigate and present
evidence on the cause of death, (3) a jury selection challenge under Batson v.
Kentucky, 476 U.S. 79 (1986), (4) trial counsel ineffectiveness for failing to present
mitigation evidence, (5) allegations related to appellate counsels’ performance, (6) a
general request regarding the application of relaxed waiver, and (7) Daniels’s challenge
to the propriety of the Section 9711(d)(6) (perpetration of a felony) aggravating
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circumstance under Commonwealth v. Lassiter, 722 A.2d 657 (Pa. 1998) (plurality
decision). See N.T., 2/2/2000, at 80-89.
After holding hearings on these claims in December of 2001, May of 2002, and
January of 2003, the PCRA court granted new trials based on the guilt phase claims
that trial counsel were ineffective for (1) failing to object to the trial court’s instruction on
accomplice liability, and (2) failing to present evidence disputing the cause of death.
The PCRA court also addressed the Batson claim, but denied relief; the court did not
provide a reasoned analysis of the myriad other claims.
The parties filed cross-appeals after the PCRA court ruled that its order was final
and appealable. See Daniels and Pelzer, 963 A.2d at 416. On appeal, this Court
reviewed the three claims addressed by the PCRA court, ultimately reversing the grant
of relief on the two guilt phase ineffectiveness claims, while agreeing with the dismissal
of the Batson claim. We therefore reversed the PCRA court’s grant of new trials. We
were unable to reach the other claims raised on appellees’ cross-appeals, however,
given the PCRA court’s failure to discuss the claims, a lapse that precluded meaningful
appellate review. We thus remanded for a merits opinion. Since the intention of our
remand is now disputed, we will set forth our directive verbatim:
Finally, appellees raise numerous other claims which, though
dismissed by the PCRA court, were not addressed by the PCRA court on
the merits either in its opinion or elsewhere on the record. For example, in
its opinion, the PCRA court acknowledged that appellees raised other
claims of error in connection with the penalty phase of the trial, but stated
that those claims were rendered moot because of its decision to grant a
new trial, and thus dismissed them. Given the prospect of appellate
review, and to avoid piecemeal review, PCRA courts in capital cases
should be thorough and should address all issues. In light of our
disagreement with the PCRA court's existing grant of relief, the proper
course is to remand for the PCRA court to address these claims.
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In addition, the PCRA court failed to explain the basis for its
determination that appellees' many other claims affecting the guilt phase
were meritless. Because of the PCRA court's failure, we have no rationale
supporting the denial of appellees' remaining claims and cannot conduct
meaningful appellate review. Under such circumstances, we will remand
the matter to the PCRA court to write an opinion addressing all of the
PCRA petitioner's claims. Accordingly, we remand this matter to the
PCRA court to furnish a written opinion on the remaining claims raised by
appellees in their petitions for post-conviction relief, including those claims
that it previously dismissed without a hearing. As to any claims requiring
resolution of disputed material facts, the court should include specific
factual findings and express credibility judgments.
Id. at 435 (citations omitted). Appellees’ Applications for Reargument were denied.
On remand, the case was assigned to the Honorable Carolyn Engel Temin
because Judge Lineberger was no longer serving. Judge Temin held several hearings
between December 10, 2010 and August 26, 2011, to determine which issues remained
to be addressed. The parties disputed whether Judge Lineberger had dismissed on the
merits the four remaining claims encompassed in his grant of an evidentiary hearing.
The Commonwealth asserted that the claims were dismissed as meritless, while
appellees asserted that dismissal was premised upon mootness. Judge Temin
ultimately concluded that Judge Lineberger’s June 2004 opinion “definitely states that
the remaining issues were dismissed as moot,” and thus she reconsidered the claims
“ab initio.” PCRA court Slip Op., 11/22/11, at 4. The court ultimately addressed seven
guilt phase claims, seven penalty phase claims, and a cumulative prejudice claim,
concluding that trial counsel for each appellee were ineffective for failing to investigate
and present additional mitigation evidence specific to their client, but that appellees
were not entitled to relief on their remaining claims. Accordingly, the PCRA court
awarded each appellee a new penalty phase hearing. These twin cross-appeals
followed.
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I. PRELIMINARY PROCEDURAL ISSUE
The parties first dispute the propriety of the successor PCRA court’s decision to
consider claims on remand anew. The Commonwealth argues that Judge Temin had
no authority to vacate the death sentences because in doing so she overruled Judge
Lineberger’s prior dismissal. That action, the Commonwealth alleges, violated
Pa.R.A.P. 2591, which provides that the lower court must proceed in accordance with
the judgment or order of the appellate court on remand, as well as the coordinate
jurisdiction rule, which provides that judges sitting on the same court in the same case
should not overrule each other’s decisions. The Commonwealth contends that this
Court’s remand order was narrow, merely directing the PCRA court to produce a written
opinion on the remaining issues it had dismissed, and Judge Temin exceeded that
mandate when she granted penalty phase relief. Respecting coordinate jurisdiction, the
Commonwealth posits that Judge Lineberger specifically rejected appellees’ mitigation-
based ineffectiveness claim on the merits during a March 25, 2003 PCRA hearing and
then memorialized the decision in an order dated the same day. According to the
Commonwealth, the coordinate jurisdiction rule precluded Judge Temin from overruling
the merits determination of a fellow PCRA judge.
The Commonwealth further argues that Judge Lineberger’s June 2004 written
opinion, which stated that the claims he did not address in the opinion were “moot,” is
not part of the record on appeal, and therefore Judge Temin should not have
considered its contents in determining whether she could address the merits “ab initio.”
The Commonwealth concludes that “because the PCRA court lacked the authority to go
beyond this Court’s narrow remand order and overrule the prior binding decision of a
judge of coordinate jurisdiction, the court’s ultra vires award of a new penalty phase
hearing should be reversed.” Principal Brief of Commonwealth, at 26.
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Pelzer responds that in the June 2004 opinion, Judge Lineberger stated that he
deemed appellees’ penalty phase issues “moot” because of his determination that a
new trial was warranted. See PCRA court Slip Op., 6/29/2004, at 12. Pelzer adds that
this Court recognized that the claims were dismissed as moot in our remand directive
(quoted above). According to Pelzer, the Court remanded the case specifically because
certain claims remained unaddressed by the PCRA court. It follows, Pelzer says, that
the coordinate jurisdiction rule was not violated by Judge Temin because Judge
Lineberger did not decide the merits of the remaining claims. Pelzer further contends
that the cases cited by the Commonwealth to support its argument that Judge
Lineberger’s opinion is not part of the record are inapplicable because they stand for the
proposition that facts stated in an opinion cannot overcome the lack of record evidence
to support the existence of those facts, a proposition not at issue here. Daniels’s
arguments largely echo those of Pelzer.
The circumstances here are not optimal, even aside from the unavailability of the
original PCRA judge to conduct the remand proceeding. This Court has too often seen
capital PCRA matters where the court below, faced with a multitude of claims and prolix
amendments, addresses a claim or two, grants relief, and then fails to discharge its duty
to address at all, or to address fully, the remaining claims, a circumstance that can lead
to piecemeal review, multiple appeals to this Court, and accompanying delay. See,
e.g., Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006) (reversing PCRA grant of new
trial on single guilt phase claim, while affirming grant of penalty relief), followed by
Commonwealth v. Sneed, 45 A.3d 1096 (Pa. 2012) (deciding remaining guilt phase
claims following remand and further appeal). See also Daniels and Pelzer, 963 A.2d at
435 (collecting cases). Our remand in this case illustrates that we have not hesitated in
such circumstances to remand either for a fuller explanation of the rejection of claims, or
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for a fuller treatment of claims, since the circumstance impedes the Court’s ability to
conduct meaningful appellate review.
In this case, the original PCRA judge gave conflicting signals, as he actually
dismissed appellees’ other claims, signaling a merits disposition that allowed for
appealable orders, and further suggested, as relevant here, that he was not necessarily
convinced by the ineffectiveness respecting mitigation claim, but then suggested in his
opinion that the dismissal was on mootness grounds. The suggestion of mootness was
plainly misguided in light of this Court’s repeated insistence on a comprehensive
approach to PCRA petitions. A capital PCRA petitioner’s claims should not be deemed
“moot” by the trial court based upon a determination that a claim or two possesses
merit; any finding of mootness would depend upon this Court’s determination of any
ensuing Commonwealth’s appeal. As an institutional matter, and as a matter of judicial
economy, mootness is more properly for this Court to determine in capital PCRA
proceedings. If a single collateral issue is both contested (as here) and deemed of such
importance as to warrant immediate interlocutory review in the PCRA court context, the
PCRA court can avail itself of the issue certification process, Pa.R.A.P. 312
(interlocutory appeals by permission). But, a PCRA trial court should not invoke
“mootness” to avoid the task of deciding the entire case before it so as to make for a
ready, comprehensive, and timely single appeal. This imperative is not just a matter of
sparing the parties and this Court the burden of multiple, “ping-ponging” appeals but it
also avoids the prospect – as happened here – of the PCRA judge no longer being
available to preside over any remand.
The parties’ dispute over the proper interpretation of Judge Lineberger’s handling
of the remaining claims is ultimately of little moment to the appellate task of this Court.
Even if Judge Lineberger had made it perfectly clear that he was rendering a merits
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conclusion as to every claim, that fact would hardly advance the purpose of our remand.
The impediment to meaningful appellate review was the absence of any reasoned
expression why any particular claim was being rejected. Judge Lineberger denied most
of appellees’ claims without an evidentiary hearing. See N.T., 2/2/2000, at 80-89. He
then held multiple hearings related to specific claims, including both the guilt phase
claims that were subject of the prior collateral appeal and the penalty phase claim upon
which Judge Temin ultimately granted relief. When Judge Lineberger granted relief on
the two guilt phase claims, the prosecutor stated that he “would assume all the other
claims are denied.” Judge Lineberger replied, “No. What I’m saying to you, is this. I
didn’t go down the list of claims on thereO. Some of those issues that were raised did
not trouble me at allO.” N.T., 1/29/03, at 11. But, the court did not identify these claims
or articulate the reasons he believed they were not troubling. During a March 5, 2003
hearing, Judge Lineberger appeared reluctant to rule on the merits of the penalty phase
issues because he had not fully considered them. See 3/5/03, at 5, 12-15 (“See, I’m in
a position at this moment where I really did not give the issues raised concerning the
penalty phase probably the consideration they might have legally deservedO.”).
Ultimately, on March 25, 2003, the court appeared to deny relief on the mitigating
evidence claims on the merits, but again without any kind of reasoned expression, and
in an equivocal manner tied to a hope that the penalty phase issues would be rendered
“academic” by his granting of new trials: “[S]o I guess what I’m saying is this,
gentlemen, that in this Court’s opinion the conduct of the lawyers were not an F. Lee
Bailey type presentation on the part of Houston, but in my opinion it does not warrant
another penalty phase should the Commonwealth overcome the threshold on its appeal
of this Court’s decision on the new trial. Hopefully the question will be academic.” N.T.,
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3/25/03, at 14. The court’s subsequent reference to mootness in its opinion seems to
continue its equivocation.
What is not equivocal is that the initial PCRA judge memorialized no findings of
facts or specific conclusions of law as to the various claims he dismissed, and he
offered no reasoned explanation as to any of the claims; an offhand reference to
Attorney F. Lee Bailey is not helpful to meaningful appellate review. We are left with
nothing of substance from Judge Lineberger to review, irrespective of whether the judge
intended to engage the merits. In these circumstances, Judge Temin, tasked with
providing this Court with a reasoned analysis of the myriad remaining claims, can hardly
be faulted for proceeding to analyze the claims de novo: there was nothing material for
Judge Temin to defer to, and she was no better off than this Court, when the appeal
was here before, to try to fathom the grounds for Judge Lineberger’s decisions (or non-
decisions). Our remand order did not contemplate a circumstance where the judge who
had failed to fully discharge his duty in the first instance would be unavailable to
complete the task upon remand. Hence, at least in these admittedly unique
circumstances, we see no error in the judge to whom the case was reassigned
examining the merits anew, so as to provide this Court with the explication necessary
for us to discharge our appellate task. Thus, we will proceed to the merits.
II. REVIEW STANDARDS
In reviewing the rulings of a PCRA court, we examine whether the PCRA court's
determination “is supported by the record and free of legal error.” Commonwealth v.
Rainey, 928 A.2d 215, 223 (Pa. 2007). In order to be eligible for PCRA relief, a
petitioner must establish by a preponderance of the evidence that the conviction or
sentence resulted from one or more of the enumerated circumstances found in 42
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Pa.C.S. § 9543(a)(2), and that the allegation of error has not been previously litigated or
waived. Id. § 9543(a)(3). A claim is previously litigated if the highest appellate court in
which the petitioner could have had review as a matter of right has ruled on the merits
of the issue. Id. § 9544(a)(2). An allegation is waived “if the petitioner could have
raised it but failed to do so before trial, at trial, on appeal or in a prior state
postconviction proceeding.” Id. § 9544(b).
The majority of appellees’ claims sound in ineffective assistance of counsel
under the Sixth Amendment. The U.S. Supreme Court has stressed that there is a
strong presumption that counsel was effective, and the burden of overcoming the
presumption rests with the defendant. See Burt v. Titlow, ___ U.S. ___, 134 S.Ct. 10,
17 (2013); Strickland v. Washington, 466 U.S. 668, 690 (1984). To obtain relief, the
defendant must demonstrate that counsel’s performance was constitutionally deficient
and that the deficient performance prejudiced him. Strickland, 466 U.S. at 687. In
Pennsylvania, we have applied the Strickland test by looking to three elements, two
concerning performance, and one concerning prejudice. Respecting counsel’s
performance, the petitioner must establish that his underlying claim is of arguable merit
and that no reasonable trial strategy existed for counsel’s action or inaction.
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). The reasonableness of
counsel’s conduct is objectively measured, Cullen v. Pinholster, ___ U.S. ___, ___, 131
S.Ct. 1388, 1404, 1407 (2011) (citing Harrington v. Richter, 562 U.S. ___, ___ , 131
S.Ct. 770, 791 (2011)). Respecting prejudice, we employ the Strickland actual
prejudice test, which requires a showing of a reasonable probability that the outcome of
the proceeding would have been different but for counsel’s constitutionally deficient
performance. See, e.g., Strickland, 466 U.S. at 694; Commonwealth v. Sepulveda, 55
A.3d 1108 (Pa. 2012). “[A] reasonable probability is a probability that is sufficient to
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undermine confidence in the outcome of the proceeding.” Commonwealth v. Spotz, 84
A.3d 294, 312 (Pa. 2014) (citations omitted); see also Hinton v. Alabama, ___ U.S. ___,
134 S.Ct. 1081, 1089 (2014) (“When a defendant challenges a conviction, the question
is whether there is a reasonable probability that, absent the errors, the factfinder would
have had a reasonable doubt respecting guilt.”) (quotation marks omitted); Strickland,
466 U.S. at 695 (explaining same concept in context of penalty relief). A failure to
satisfy any prong of the ineffectiveness test requires rejection of the claim.
Commonwealth v. Sneed, 899 A.2d 1067, 1076 (Pa. 2006).
Both Daniels and Pelzer were represented by new lawyers on direct appeal, and
those direct appeals were litigated before this Court’s decision in Commonwealth v.
Grant, 813 A.2d 726 (Pa. 2002), reargument denied, 821 A.2d 1246 (Pa. 2003). Thus,
in theory, direct appeal counsel in each case could have raised claims of trial counsel
ineffectiveness on direct appeal, and the failure to raise a claim of trial counsel
ineffectiveness on direct appeal could implicate PCRA waiver.1 As a consequence, to
the extent that appellees on collateral attack now raise claims deriving from the alleged
ineffectiveness of trial counsel, those particular claims must be “layered,” i.e.,
appellees must prove Strickland ineffectiveness as to both trial counsel and appellate
counsel in order to demonstrate an entitlement to PCRA relief. Commonwealth v.
1
Until 2002, this Court required new counsel to raise claims of previous counsel's
ineffectiveness at the first opportunity after new counsel was appointed, which was
often on direct appeal. Commonwealth v. Hubbard, 372 A.2d 687 (Pa. 1977). This rule
was subsequently abrogated in Grant, which held that claims of ineffective assistance of
counsel generally should be deferred until collateral review. 813 A.2d at 738 (overruling
Hubbard); see also Commonwealth v. Pagan, 950 A.2d 270, 287 (Pa. 2008). Thus, in
direct appeals decided prior to Grant, such as these, new counsel on appeal would
have been obligated to raise claims of trial counsel ineffectiveness or risk having them
later be deemed waived for purposes of collateral review.
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Walker, 36 A.3d 1, 7 (Pa. 2011); Commonwealth v. McGill, 832 A.2d 1014, 1022 (Pa.
2003).
Recognizing the dynamism that has continued to be evident in this area of the
law since Grant and McGill,2 this Court in Walker recently explained that a remand for
further explication of the appellate counsel aspect of a layered ineffectiveness claim
continues to be available. Specifically, we explained that an appellate court should not
simply reject a claim of appellate counsel ineffectiveness based upon deficiencies in the
appellate brief if the deficiencies in the brief “mirror those in the PCRA pleadings, unless
the PCRA court invoked these deficiencies as the basis for its decision and afforded an
opportunity for amend.” We then explained that a remand remained “an option” to
correct pleading and proof deficiencies and that we will continue to “review the
underlying claim concerning trial counsel’s stewardship to determine whether remand
for further development” of appellate counsel ineffectiveness claims is necessary.
However, we reiterated that, in the layered claim scenario, a remand remains
unnecessary if the petitioner has not met his burden of establishing the underlying claim
of trial counsel ineffectiveness. Walker, 36 A.3d at 8-9.
Thus, in this case, for appellees to secure relief on any particular claim, they
must establish Strickland’s elements as to both trial and appellate counsel. To the
extent that this Opinion discusses appellees’ underlying claims of alleged trial court
error or trial counsel ineffectiveness, we do so purely for purposes of assessing
appellees’ derivative and cognizable claims of appellate counsel ineffectiveness, and in
particular, to assess whether a Walker-style remand is required.
2
McGill, in addition to addressing the circumstance of layered claims of ineffectiveness,
also spoke to the prospect of associated remands in cases then pending in the
appellate courts. These appeals were not then pending, and we look to the more recent
pronouncement in Walker, discussed infra.
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III. GUILT PHASE ISSUES
We first address the guilt phase claims that are the subject of appellees’ cross-
appeals, since they offer the prospect of the greatest relief.
A.
Appellees allege that the Commonwealth failed to disclose exculpatory evidence
in violation of Brady v. Maryland, 373 U.S. 83 (1963), identifying three items of
exculpatory evidence they say were withheld from them. First, they cite a “body
receiving record” prepared by the medical examiner, which indicated that Alexander
Porter had died “eight or nine hours before the gunshots were fired.” Brief of Daniels at
30 (original emphasis). Appellees aver that this document supports a theory that Porter
died in the trunk of the car while they were sleeping. Second, appellees cite witnesses’
statements that they heard gunshots in the park area where the victim’s body was found
between 11 p.m. and 1 a.m. on the night of the murder. Third, appellees cite a forensic
report stating that no bloodstains were found in their vehicle; appellees say this report
was exculpatory because it proved the falsity of a police officer’s statement at trial that
blood was found in the vehicle.
According to appellees, the collective import of this withheld information was
significant because it refuted the Commonwealth’s trial theory, which was that the victim
was shot and killed at the park. Appellees say the evidence tended to support Judge
Lineberger’s belief, in granting guilt phase relief, that the victim was dead by the time he
was brought to the park and shot four times. Repeating the argument they made on the
first collateral appeals, appellees contend that the defense forensic evidence at the
PCRA hearing established that the victim was already dead by the time they arrived at
the park. Proof that the victim was already dead when Pelzer shot him, appellees aver,
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would undermine the Commonwealth’s proof of their specific intent to kill. Pelzer also
argues that this evidence corroborated his statement to the police that the victim was
already dead when he shot him at the park. Additionally, appellees contend that the
Brady material would have further supported the defense objection to the trial court’s
instruction that a specific intent to kill could be inferred from the use of a deadly weapon
upon a vital part of the victim’s body.
Appellees acknowledge that their initial collateral appeals posed a central issue
related to trial counsels’ alleged ineffectiveness for failing to contest the cause of death.
The Court rejected the issue on the basis that appellees could not demonstrate
prejudice because the entire circumstances surrounding the kidnapping and binding of
the victim, and then holding him in the trunk for a prolonged period, established
appellees’ specific intent to kill. See Daniels and Pelzer, 963 A.2d at 428 (“To suggest
that the victim’s death was the result of an ‘accidental act’ or was the result of
something less than intentional conduct because he may have died of asphyxiation –
caused by appellees – rather than by strangulation or gunshot wounds – also inflicted
by appellees – fails to acknowledge that appellees controlled the circumstances
surrounding his death every step of the way and that those circumstances fully
supported a finding of an intent to kill beyond a reasonable doubt.”).
Appellees next attempt to relitigate the initial PCRA appeals, collaterally attacking
this Court’s decision. They argue that the Court’s reasoning was flawed because the
Commonwealth’s theory at trial was that the gunshots caused the victim’s death; thus,
they believe, a verdict of first-degree murder was only possible by way of a finding that
the victim was killed by the multiple gunshots. Appellees note that the trial court
declined to instruct the jury on a cause of death other than the shooting, such as
strangulation or suffocation. Appellees then contend that this Court’s explication of
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what the jury might have found if a different theory had been pursued -- in discussing
Strickland prejudice on the first collateral appeals -- violated their Sixth Amendment
right to a jury trial. A Strickland prejudice analysis, according to appellees, is
constrained by a requirement to contemplate only the trial that actually occurred and
cannot proceed on a “speculative” theory of the case not actually pursued by the
Commonwealth. See Brief of Appellee Daniels at 33-35, discussing Smith v. Cain, 132
S.Ct. 627 (2012); Chiarella v. U.S., 445 U.S. 222 (1980); and Commonwealth v.
Johnson, 966 A.2d 523 (Pa. 2009).
The Commonwealth responds that the witnesses’s statements about hearing
gunshots were not favorable to appellees in a Brady sense and appellees cannot
establish that they were prejudiced. The Commonwealth argues that the evidence at
best merely corroborated the Commonwealth’s allegation that appellees shot the victim.
The Commonwealth notes that this aural evidence certainly does not address whether
the victim died at appellees’ hands prior to arriving at the park, which is the point
relevant to appellees’ contention. The Commonwealth also avers that appellees did not
establish that the evidence was withheld, since Pelzer’s trial counsel’s testimony on the
point was equivocal at best. Finally, the Commonwealth argues that any prejudice
argument is foreclosed by the Court’s 2009 decision denying relief on the cause of
death claim, which is the theory this evidence was relevant to.
The Commonwealth then argues that the remaining two Brady claims --
respecting the body receiving record and the forensic report -- are waived because they
were not raised until after this Court remanded the appeals for the PCRA court to
address already existing claims. Alternatively, the Commonwealth contends that the
issues are baseless. The Commonwealth argues that the body receiving report is
irrelevant because this Court previously concluded that the timing of the victim’s demise
[J-13A&B-2013; J-14A&B-2013] - 17
was immaterial to specific intent. The Commonwealth then argues that the forensic
report (showing no blood) only related to the passenger compartment of the vehicle and
did not test items in the trunk. For all of these reasons, the Commonwealth concludes
that appellees’ Brady claims fail.
In further responses, appellees largely reiterate points already made, but two
points bear further mention. First, regarding the witnesses’ statements concerning
hearing gunshots, appellees say the evidence was exculpatory because it was relevant
to whether the victim was alive when appellees shot him. Second, and related to the
question of waiver, appellee Daniels contends that the forensic report was attached to
his 2000 amended PCRA petition, and further argues that the claim respecting the body
receiving record was part of his “existing” Brady claim. Reply Brief of Appellee Daniels
at 9.
The PCRA court found that the Brady issue deriving from the body receiving
record in fact was not raised in the initial or supplemental PCRA petitions. The PCRA
court added that the Brady claims were without merit because the issues related to the
manner of the victim’s death, and arguments relating to the manner of death, were
previously addressed and rejected by this Court on the first collateral appeals.
To succeed on a Brady claim, the defendant must show that: (1) evidence was
suppressed by the prosecution; (2) the evidence, whether exculpatory or impeaching,
was favorable to the defendant; and (3) prejudice resulted. A Brady violation exists only
where the suppressed evidence is material to guilt or punishment, i.e., where there is a
reasonable probability that, had the evidence been disclosed, the result of the
proceeding would have been different. Commonwealth v. Tedford, 960 A.2d 1, 30 (Pa.
2008).
[J-13A&B-2013; J-14A&B-2013] - 18
Taking the witnesses’ statements concerning gunshots first, we agree with the
Commonwealth that appellees have not demonstrated materiality, or even that the
statements were favorable to them. The Commonwealth’s theory at trial was that the
victim was shot by appellees after being bound and gagged and confined in the trunk of
the car, which was a fact that appellees admitted either on the stand (appellee Daniels)
or in their statements to police. The alleged Brady evidence does not undermine the
Commonwealth’s position that the victim was killed by gunshots. Additionally,
appellees’ Brady claim depends upon accepting the notion that trial counsel was
constitutionally obliged to pursue the theory that the victim was dead at the time
appellees shot him. That Strickland argument was raised and rejected, on prejudice
grounds, on the initial PCRA appeals. Daniels and Pelzer, 963 A.2d at 428. We will not
reconsider that issue, which is an indispensable predicate to the current Brady claim
related to the witnesses’ statements.
Second, the PCRA court correctly determined that the Brady claim related to the
body receiving record was waived, as it was not raised prior to the remand. This Court
explicitly limited the subject matter of the remand to the remaining issues already raised
by appellees; we neither invited nor authorized appellees to raise additional collateral
claims years after expiration of the PCRA time-bar. Daniels and Pelzer, 963 A.2d at
435. Thus, this new claim is waived. See Commonwealth v. Porter, 35 A.3d 4, 12 (Pa.
2012) (appellant cannot add Brady claim to existing PCRA petition without PCRA
court’s permission); Commonwealth v. Ali, 10 A.3d 282, 320 (Pa. 2010) (Supreme Court
PCRA remand for specific purpose is not authorization to raise new collateral claims).
However, the Commonwealth is incorrect that the Brady issue related to the
forensic report was not raised prior to the remand. See Supplemental Motion for Post-
Conviction Collateral Relief, 12/22/00, at 6-10. The claim nonetheless fails for the same
[J-13A&B-2013; J-14A&B-2013] - 19
reason as the claim related to the witnesses’s statements: the materiality of the report
depends upon the claim – pursued as an ineffectiveness claim on the initial collateral
appeals -- that counsel were obliged to argue that the victim was dead at the time
appellees shot him. That predicate theory was rejected by this Court, on grounds that
appellees failed to show Strickland prejudice. Further evidence supporting the same
theory does not alter the Strickland prejudice assessment.
Finally, we address Daniels’s attack upon the Court’s assessment of Strickland
prejudice on the prior appeal, on grounds that the Court supposedly cannot discuss
other theories not directly presented to the trial jury. This objection was a matter for
reconsideration or reargument after our prior decision, and is not an available issue on
this appeal, involving distinct claims. In any event, because versions of this sub-
argument are raised by Daniels respecting multiple issues, we will explain why we
disagree with the notion that the Strickland prejudice assessment is so narrow.
Strickland requires that claims of counsel ineffectiveness be approached with a strong
presumption that counsel was effective, and the Strickland prejudice assessment
requires a court to make judgments – essentially predictions -- about the reasonable
probabilities of what the fact finder would have decided if a particular course had or had
not been pursued by trial counsel, i.e., if the case had been tried differently. Under
Strickland, the defendant has the burden to show a reasonable probability that the
outcome of the proceeding would have been more favorable to the defense – here,
respecting the guilt phase -- that Daniels would have been convicted of something less
than first-degree murder. Such a determination necessarily requires an assessment of
the trial evidence as a whole, measured along with what is proffered on collateral attack.
This Court often engages in such Strickland assessments as part of our
jurisprudential review. In doing so, we appreciate that the task is not to identify various
[J-13A&B-2013; J-14A&B-2013] - 20
hindsight “gotcha” scenarios: i.e., counsel could have done this, or he should not have
done that. Indeed, the U.S. Supreme Court has emphasized that the Sixth Amendment
right to counsel does not exist in a vacuum, but exists to ensure a fair trial, a trial whose
result is reliable. Lockhart v. Fretwell, 506 U.S. 364, 368-69 (1993); Strickland, 466
U.S. at 684; see also U.S. v. Cronic, 466 U.S. 648, 658 (1984) (“[T]he right to the
effective assistance of counsel is recognized not for its own sake, but because of the
effect it has on the ability of the accused to receive a fair trial. Absent some effect of
challenged conduct on the reliability of the trial process, the Sixth Amendment
guarantee is generally not implicated.”). The fact that the defendant on collateral attack
looks at a fixed record and produces a theory by which trial counsel can be assailed for
failing to parry a point made by the Commonwealth does not mean that the
Commonwealth would have been left without recourse, under the available evidence.
Our examination on the prior appeals reviewed the totality of the trial evidence produced
respecting appellees’ manifested intention to kill, and properly assessed that evidence
in determining whether there was a reasonable probability that appellees’ new,
collateral theory -- a theory itself subject to Commonwealth response and rebuttal, it is
important to remember -- if pursued, would have led to a different verdict. Given
appellees’ extended course of conduct reflected in the trial record here, we concluded,
the course proposed by appellees on collateral attack not taken by counsel did not offer
a reasonable probability of a result other than a verdict of first-degree murder. The
fairness of the proceeding focus required under Strickland works two ways; and final
judgments are not upset by courts employing artificially blinkered views of the fairness
of the initial trial.
For the foregoing reasons, appellees’ Brady claims do not entitle either to relief.
[J-13A&B-2013; J-14A&B-2013] - 21
B.
In another claim relating to their core complaint that their trial counsel were
ineffective for failing to better dispute the cause of death, appellees next raise a layered
ineffectiveness claim deriving from counsels’ failure to object to the court’s guilt phase
jury instructions. Appellees say that those instructions fostered an unbalanced
presentation of the specific intent issue and encouraged the jury to presume they had
an intent to kill from their act of shooting the victim. Related to this claim, appellees
separately aver that trial counsel were ineffective for failing to request a mistake of fact
jury instruction.
Thus, Pelzer complains that the trial court focused the jury’s attention on the fact
that the victim had been shot without also directing the jury that it had to believe that the
victim was alive at the time he was shot in order to find a specific intent to kill. Pelzer
contends that the jury should have been told that a reasonable mistake of fact could
refute the inference arising from the use of a deadly weapon on a vital part of the
victim’s body. Pelzer adds that the trial court did not make any reference to the
evidence of strangulation as a possible cause of death or reference the defense claim
that the victim was already dead at the time he was shot. Pelzer continues that trial
counsel should have objected to these “unbalanced” instructions which, he says, failed
to present the defense to the jury. He also contends that he was prejudiced because
the cause of death was in question, as there was at least some evidence that appellees
believed the victim was dead before they shot him to make sure.
Pelzer then argues that trial counsel should have requested a mistake of fact
instruction, i.e., an instruction that a mistake of fact exists if the defendant had a
reasonable and bona fide belief that the victim was already dead when he shot him, and
that such a mistake may negate the inference of an intent to kill. Pelzer says there was
[J-13A&B-2013; J-14A&B-2013] - 22
sufficient evidence to require such an instruction, citing his statement to the police as
proof that he believed the victim was dead prior to the shooting. Brief of Appellee
Pelzer at 59, citing 18 Pa.C.S. §304 (defense of ignorance or mistake of fact). Pelzer
says that counsel’s failure was prejudicial because the cause of death was in question.
See Initial Brief of Appellee Pelzer, at 61.
Daniels makes essentially the same argument. According to Daniels, the trial
court’s instructions shifted the burden to appellees by focusing the jury’s attention on
the fact that the victim had been shot, suggesting that the shooting was the cause of
death, which made Daniels’s testimony (that he believed the victim was dead at the time
he was shot) appear immaterial. Daniels then contends that trial counsel’s decision to
join in objections raised by Pelzer’s counsel was inadequate. He adds that appellate
counsel was ineffective for failing to raise the issue on direct appeal.
Daniels also contends that a defendant is entitled to an instruction on any
recognized defense, so long as it is supported by the record. According to Daniels,
there was sufficient evidence to require a mistake of fact instruction, on grounds that he
lacked the intent to kill because the victim was dead before being shot and he did not
personally pull the trigger. Again seeking to collaterally attack our decision in the prior
PCRA appeals, Daniels reiterates his view that this Court erred in determining that
appellees’ intent to kill was demonstrated throughout the course of the kidnapping.
Daniels claims that that issue is reserved for the jury to make findings based on the trial
that actually occurred. Like Pelzer, Daniels argues that he was prejudiced because a
mistake of fact instruction would have advanced his prospects of avoiding a first-degree
murder verdict.
The Commonwealth responds that the evidence did not support a mistake of fact
defense and, in any event, the absence of the instruction did not prejudice appellees.
[J-13A&B-2013; J-14A&B-2013] - 23
First, the Commonwealth notes that a mistake of fact defense is only available when
there is proof that the defendant harbored a bona fide and reasonable belief in a fact
that negates the intent to commit the crime. The Commonwealth notes that in this case,
Daniels’s testimony showed that appellees were unsure whether the victim was dead
and that he was shot in order to make certain he was dead. Thus, the evidence did not
show that appellees had a bona fide belief that the victim was dead at the time of the
shooting. Additionally, even if they had such a belief, the Commonwealth asserts that
the evidence overwhelmingly demonstrated appellees’ specific intent to kill the victim
long before they shot him. Thus, according to the Commonwealth, appellees cannot
establish an entitlement to relief.
Second, the Commonwealth argues that appellees cannot establish that they
were prejudiced by counsels’ failure to request the charge. Given the evidence
presented at trial, the Commonwealth argues, the jury could not rationally have
concluded that appellees lacked the specific intent to kill even if the jury believed both
that the victim in fact was dead at the time he was shot, and that appellees believed he
was dead. The Commonwealth points to this Court’s opinion on the prior appeals to
buttress its prejudice argument.
In reply, Pelzer argues that his statement to the police showed that he believed
the victim was dead when he was shot. Additionally, echoing Daniels, Pelzer says that
the Commonwealth’s prejudice argument misses the mark because the trial court’s
instructions denied the jury the option to consider whether he was guilty of first-degree
murder if the killing was accomplished by some means other than shooting.
Daniels responds that the Commonwealth confuses the quantum of evidence
necessary to be entitled to an instruction with the quantum necessary to prevail on a
[J-13A&B-2013; J-14A&B-2013] - 24
mistake of fact defense. According to Daniels, the Commonwealth cannot speculate
regarding what the jury would have ultimately decided.
Similar to its assessment of the Brady claim, the PCRA court concluded that this
issue was effectively previously litigated on the prior collateral appeals, since this Court
concluded that appellees did not establish that they were prejudiced by counsels’
failures in disputing the manner of death.
Preliminarily, we note that Daniels reprises his argument that we are precluded
from “speculating” regarding what the jury would ultimately have decided if counsel had
pursued a different course. We have already addressed that erroneous notion in
disposing of claim A, supra, both in terms of prior litigation on the earlier appeals, and in
terms of a proper appreciation of the prejudice assessment under Strickland by a
reviewing court.
Turning to the merits, it is notable that neither appellee adequately accounts for
the objections actually raised by trial counsel, or this Court’s discussion of a similar
issue on direct appeal. In point of fact, Pelzer’s counsel objected to the trial court’s
instruction to the jury that the only cause of death was the gunshots and that the
specific intent to kill could be inferred from the use of a deadly weapon upon a vital part
of the body. N.T., 11/9/89, at 58-61. Daniels’s counsel joined in the lengthy objection.
Id. at 61. Counsel for both appellees also specifically asked that the court’s charge on
cause of death address the possibility that death was caused by strangulation; and
appellees further objected that the court’s charge reflected the trial court’s theory of
what had happened, notwithstanding that evidence supporting alternative theories of
death had been presented to the jury, which should also be accounted for in the court’s
charge. The trial court repeatedly denied the objections, emphasizing that the evidence
respecting strangulation would only “show more” respecting appellees’ intent. Id. at 60.
[J-13A&B-2013; J-14A&B-2013] - 25
On direct appeal, appellee Pelzer argued that the trial court improperly
expressed its opinion to the jury that the victim died of gunshot wounds thereby
compromising the fact-finding function of the jury. The Court rejected the claim on the
basis that the trial court’s instructions comported with the evidence. We specifically
held that the charge did not undermine appellees’ defense, which was that malice was
lacking because they believed the victim to be dead at the time he was shot. See
Commonwealth v. Pelzer, 612 A.2d at 413. Appellees now present a similar underlying
claim, with a Sixth Amendment gloss sounding in trial counsel ineffectiveness, but
without fully accounting for counsel’s actual conduct or the claim raised on direct
appeal. Although the Sixth Amendment framing may prevent the claim from being
rejected outright on previous litigation grounds, see Commonwealth v. Collins, 888 A.2d
564, 571 (Pa. 2005), the fact that prior counsel pursued closely related arguments, only
to have them fail, obviously undermines appellees’ present Sixth Amendment claims.
Notably, appellees do not adequately address the actual objection forwarded by
Pelzer’s counsel, which was joined by Daniels’s counsel, nor do they even
acknowledge, much less address, this Court’s discussion of the related issue counsel
then raised on direct appeal. Because appellees fail to account for the actual trial (and
direct appeal) actions by prior counsel, their current collateral attack is a non-starter.
Finally, we ultimately agree with the PCRA court that the resolution of this issue
is controlled by our prior decision on the initial PCRA appeals, where we noted that the
specific cause of the victim’s death said “little about appellees’ intention -- which was a
very different question.” Pelzer and Daniels, 963 A.2d at 428. There was ample
evidence from multiple sources supporting appellees’ demonstrated intent to kill their
victim. In light of the trial evidence concerning the circumstances leading to the victim’s
death at the hands of appellees -- and the actual objections by prior counsel --
[J-13A&B-2013; J-14A&B-2013] - 26
appellees simply have not shown a reasonable probability that the jury’s decision
regarding specific intent would have been altered if only trial counsel had made more
vociferous or specific objections or requested a mistake of fact instruction, assuming
one would have been warranted. Accordingly, this trial counsel ineffectiveness issue
fails, and the derivative layered claim of appellate counsel ineffectiveness necessarily
fails.
C.
Appellees next complain that trial counsels’ guilt phase closing arguments were
ineffective. Pelzer avers that his lawyer’s closing failed to offer a coherent defense, but
instead consisted of a discussion of general legal principles, which never focused on the
issues presented in a “factually complex” case. Again reprising his theory respecting
the cause of death, Pelzer complains that counsel never argued to the jury that he
lacked the intent to kill because the victim was already dead when he shot him, that
shooting a dead person is not murder, and that no inference of intent to kill can be
drawn from the shooting if there was a reasonable doubt whether the victim was already
dead when he shot him. Pelzer concludes that counsel’s closing was an abdication of
responsibility.
Daniels likewise complains that his lawyer’s summation failed to lay out a
coherent defense and, worse, argued incorrect legal precepts to the jury. Daniels
contends that the argument clouded, rather than clarified, the cause of death and
specific intent issues for the jury. Like Pelzer, Daniels avers that counsel should have
argued that he could not have harbored a specific intent to kill if the victim was already
dead when Pelzer shot him. Daniels also notes that standby counsel and Thomas
Bello, Esquire (co-defendant Stacey Torrance’s counsel) testified at the PCRA hearing
that trial counsel (retained by Daniels and granted pro hac vice status) was looking to
[J-13A&B-2013; J-14A&B-2013] - 27
divine intervention for help instead of arguing the law as relevant to the facts of the
case. N.T., 12/12/01, at 29-30 (Attorney Drost); N.T., 5/7/02, at 45-51 (Attorney Bello).
Daniels concludes that he was prejudiced because counsel’s closing abandoned the
only viable defense.
The Commonwealth responds that counsels’ performance was more than
adequate: they forwarded theories of innocence, attacked the prosecution’s evidence,
and emphasized the presumption of innocence and the Commonwealth’s burden of
proof.
In specific response to Pelzer, the Commonwealth argues that counsel
emphasized that Pelzer was innocent until proven guilty and that the Commonwealth
had the burden of proving guilt. The Commonwealth also notes that counsel in fact
argued that the victim was dead before he was shot and that, therefore, Pelzer did not
have the specific intent to kill. The Commonwealth adds that counsel argued that
Pelzer’s inculpatory statements to the police were unreliable and that Daniels’s trial
testimony implicating Pelzer should be discounted because he was merely trying to shift
blame for the crimes to Pelzer. Alternatively, the Commonwealth offers that Daniels
cannot establish prejudice, since even if the jury believed the victim was dead at the
time he was shot, this fact did not undermine the proof of the specific intent to kill or that
appellees directly caused the victim’s death.
In response to Daniels, the Commonwealth stresses that counsel argued that
appellees never intended to kill the victim and that the conspiracy extended only to
stealing his keys and burglarizing his parents’ homes. The Commonwealth further
highlights that counsel argued that Daniels lacked the specific intent to kill because the
victim died before the shooting, and urged the jury to reject Pelzer’s statement that he
only shot the victim because Daniels held a gun to his head. The Commonwealth
[J-13A&B-2013; J-14A&B-2013] - 28
contends that Daniels’s counsel cogently discussed several theories of innocence and
emphasized his client’s credibility (since he had been willing to take the stand in his own
defense). Moreover, to the extent that counsel misstated the law regarding reasonable
doubt, the Commonwealth argues that any misstatements actually favored Daniels,
since counsel exaggerated the Commonwealth’s burden of proof. The Commonwealth
concludes with the same, alternative argument respecting Strickland prejudice that it
forwards with respect to Pelzer.
Daniels briefly responds to the Commonwealth’s arguments by noting that the
fact that counsel may have argued some points to the jury that were helpful to him does
not render his summation adequate. Daniels acknowledges that his counsel argued
that the victim may have been dead when he was shot, but according to Daniels, this
argument was undermined by a concession that the victim may have been alive.
The PCRA court very briefly stated that the issues of appellees’ specific intent
and the manner of the victim’s death were previously litigated and dismissed.
Moreover, the court indicated that the reasonable doubt instruction issued by the trial
court was correct. Accordingly, the court determined that this ineffectiveness issue
failed.
In Commonwealth v. Bryant, 855 A.2d 726 (Pa. 2004), the Court summarized the
deference required in reviewing an attorney’s summation as follows:
The right to effective assistance extends to closing arguments.
Nonetheless, counsel has wide latitude in deciding how best to represent
a client, and deference to counsel's tactical decisions in his closing
presentation is particularly important because of the broad range of
legitimate defense strategy at that stage. Closing arguments should
“sharpen and clarify the issues for resolution by the trier of fact,” but which
issues to sharpen and how best to clarify them are questions with many
reasonable answers. Indeed, it might sometimes make sense to forgo
closing argument altogether. Judicial review of a defense attorney's
summation is therefore highly deferential.
[J-13A&B-2013; J-14A&B-2013] - 29
Id. at 742 (quoting Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003)). Additionally, the
Bryant Court stressed that review must be based on the entirety of the summation and
not mere snippets or arguments taken out of context. Id. at 743.
Mindful of the appropriate review standard -- and mindful of the realities of trying
this case where identity was not at issue, and where appellees held a teenager bound
and gagged in the trunk of a car for an extended time, while committing derivative
crimes of opportunity -- we find that appellees’ Strickland claim fails. To be sure, neither
attorney’s summation was the height of advocacy -- or clarity -- and both summations
certainly could have better focused the jury’s attention on the defense relating to the
cause of death. Nevertheless, viewed in their entirety, the summations reminded the
jury of the Commonwealth’s burden and the presumption of innocence, argued
weaknesses in the Commonwealth’s evidence, and forwarded the primary defense
theory, comparatively weak though the defense was.
Thus, Pelzer’s counsel first reviewed the law guiding the jury’s deliberations,
emphasizing the presumption of innocence and the nature of reasonable doubt.
Counsel then sought to blunt the harmful effect of Pelzer’s statement to the police,
arguing that it was unreliable because of the circumstances surrounding the interview.
He also addressed Daniels’s damaging trial testimony that attempted to shift the blame
for the shooting to Pelzer and to distance himself from any conspiracy to kill the victim,
and asked the jury to compare Pelzer’s statement against Daniels’s trial testimony.
Counsel then asked the jury to consider Daniels’s prior history and the physical
evidence that was found in Daniels’s possession, and then reject Daniels’s trial
testimony. N.T., 11/8/89, at 41-44, 45, 46-50, 50-52.
Following Pelzer’s counsel, Daniels’s counsel reminded the jurors of the
important function they served as judges of the facts. He emphasized that the alleged
[J-13A&B-2013; J-14A&B-2013] - 30
conspiracy was not well organized and was based on a “loosely arranged” agreement.
His main contention – logical in light of the evidence that Pelzer fired the shots the
Commonwealth argued were fatal -- was that the conspiracy extended only to the
robbery and burglary, but never included a murder. Additionally, counsel argued that
Daniels withdrew from the conspiracy prior to the shooting, a theory that was based on
Daniels’s own trial testimony. Counsel then specifically argued that if the victim was
dead at the time he was shot, i.e., “if you find from the facts that the deceased was dead
before they took himO,” then there was no premeditation because “[y]ou can’t have
premeditation when a person is already dead.” Counsel continued by offering an
alternative theory, which assumed that the victim was alive (consistent with the
Commonwealth’s expert’s opinion), arguing that Daniels’s participation in the conspiracy
ended prior to the shooting. Counsel also urged the jury to consider that his client was
the only defendant to take the stand, asserting that his testimony should therefore be
given weight. Counsel argued that Daniels’s police statement, which did not comport
with Daniels’s trial testimony that the conspirators knew the victim was dead by the time
of the shooting and that he never conspired to kill the victim, was unreliable based on
the circumstances surrounding the police interview.
Counsel then turned to the concepts of the presumption of innocence and
reasonable doubt. Related to reasonable doubt, counsel confusingly stated that “there
is no reason, reasonable reason that we can assign that he’s innocent or that this fact
may not be so.” In a rhetorical flourish, counsel then stated that he had coined the term
“assumption of innocence” rather than “presumption of innocence,” explaining to the jury
that he “preferred” that term. Counsel later addressed the concept of reasonable doubt
in a similarly idiosyncratic fashion, explaining that,
I mean you have a whole avalanche of evidence [from the
Commonwealth]. But what [reasonable doubt] is, you have to look on the
[J-13A&B-2013; J-14A&B-2013] - 31
other side and say okay O there is evidence that this has transpired but
over here is a candle that says look at me, can you dismiss me, can you
dismiss me. As long as you cannot blow out the candle by a reasonable
doubt, then the law says you have to find for the DefendantO. That’s
been our principle of law since man remembers to the contrary. Man
doesn’t remember to the contrary. That’s why when a person says they
have a criminal record or that they have been found guilty of something, it
carries such a stigma, that is because a jury of your peers has found that
there was no evidence of your innocence.
You see, they didn’t find that they believed that you were innocent
or they believed that they were guilty, that’s not the test. That’s not the
test. The test is that the Jury has deliberated and they find that there is no
fact, reasonable fact establishing your innocence. That’s an entirely
different situation, not finding a reasonable fact to establish an innocence
than to say we feel that you’re guilty. You say this is done, this is not a
test. We didn’t bring you hear [sic] to determine how you feel or what, you
know, your basic assumptions or what your basic notions are. Your role is
to determine the facts based on that standard of reasonable doubt.
Id. at 95, 98, 99-100, 103, 108, 110.
It was no easy task for either defense lawyer in this case given appellees’
extended detention of the teenaged victim in horrifically confined circumstances, and
the task no doubt was particularly difficult for Pelzer’s counsel because of the evidence
that his client had delivered the four-shot coup de grace. (The point is that even if the
jury were to believe that the victim was already dead, at appellees’ hands, the act of
shooting made the road that much harder for counsel.) The main thrust of Pelzer’s
counsel’s argument was aimed at blunting the two most damning sources of evidence
against his client: Pelzer’s own incriminating statement to police and Daniels’s trial
testimony, in which Daniels’ claimed, for first time, that he intended to let the victim go.
Counsel argued that Pelzer’s police statement was not reliable and that Daniels should
not be believed. Counsel also touched upon the issue related to the cause of death.
These were among the very few arguments to be made given the facts and
circumstances surrounding the crime and Daniels’s trial decisions.
[J-13A&B-2013; J-14A&B-2013] - 32
Daniels’s counsel stressed those aspects of the case distinguishing his client
from Pelzer in a fashion that might warrant a lesser verdict, in particular the slant that
could be derived from the fact that he was not the shooter. In addition, counsel argued
that his client had withdrawn from the conspiracy, and he directly addressed the cause
of death and specific intent issue. While counsel then gave an alternative argument,
premised upon assuming that the victim was alive at the time he was shot, alternative
arguments do not necessarily undermine the defense case; it is the Commonwealth that
bears the burden. Thus, counsel frankly addressed the most damning evidence against
his client, albeit he did so in an idiosyncratic fashion. Finally, although counsel’s
description of the reasonable doubt standard did not comport with the governing law,
the Commonwealth accurately observes that the argument – not objected to by the
Commonwealth – would have heightened the Commonwealth’s burden. It is difficult to
see how this particular misstatement, under the circumstances, rendered counsel
constitutionally ineffective.
We do not suggest that either closing argument was a paragon of clarity. But,
considering the purpose and potential effect of summation – which remains merely
argument – neither are we prepared to hold that the presentations here were so lacking
as be constitutionally deficient under Strickland. Moreover, to the extent the arguments
by either or both lawyers can be deemed deficient, we are satisfied that appellees have
not proven Strickland prejudice. Again, a central part of appellees’ argument turns on
the pervasive complaint that counsel did not more aggressively or directly pursue a
cause of death-based defense. We have already addressed the considerations
weighing against the notion that that course offered a reasonable probability of a better
outcome, given the damning evidence counsel had to contend with and could not
explain away.
[J-13A&B-2013; J-14A&B-2013] - 33
Accordingly, we hold that appellees’ claims respecting their lawyers’ guilt phase
closing arguments fail. The layered claims related to appellate counsel ineffectiveness
necessarily fail as well.
D.
Co-defendants Stacy Torrance and Eugene McClure were tried together with
appellees. Each of the four defendants had made a statement to the police and each
statement was redacted and then admitted at trial, over objection, but only against the
defendant making the statement, pursuant to Bruton v. U. S., 391 U.S. 123 (1968).
Appellees now allege that the trial court erroneously admitted the statements and
appellate counsel were ineffective for failing to pursue a claim of trial court error under
Bruton on direct appeal.
Pelzer contends that the statements were “interlocking,” that the admission of the
statements violated his constitutional rights to confrontation and due process under
Bruton, and that the trial court’s instructions did not cure the error. Moreover, according
to Pelzer, redaction alone does not avoid the reach of Bruton when the redacted
statement is powerfully incriminating. Additionally, Pelzer argues that the redactions
were insufficient because the jury could infer to whom the statements referred in light of
their interlocking nature. Pelzer declares that “there are also numerous specific ways in
which the statements interlockO,” Brief of Appellee Pelzer, at 70, but he fails to identify
any of these alleged “specific ways.”
Daniels also emphasizes the interlocking nature of the statements. Daniels
argues that the redactions were inadequate and alerted the jury to the fact that names
were removed, making the redactions especially suspect. Brief of Appellee Daniels, at
42-43 (citing U.S. v. Tutino, 883 F.2d 1125 (2d Cir. 1989) and U.S. v. Long, 900 F.2d
[J-13A&B-2013; J-14A&B-2013] - 34
1270 (8th Cir. 1990)). Like Pelzer, Daniels contends that the statements were
“powerfully incriminating” and lent substantial weight to the prosecution’s case in
violation of Bruton. Daniels then goes the next step and specifically summarizes the
statements to demonstrate how he believes they incriminated him. Finally, Daniels
alleges that appellate counsel was ineffective for failing to raise the preserved Bruton
issue on direct appeal.
The Commonwealth responds that in order to violate Bruton, the non-testifying
co-defendant’s statement must be incriminating on its face without linkage to other
evidence. Where the statement is redacted and the jury is properly instructed, the
Commonwealth contends, no Bruton violation occurs. The Commonwealth then notes
that no Bruton violation could have occurred with regard to the admission of Daniels’s
statement since he testified at trial. Separately, the Commonwealth argues that the
remaining statements were all properly redacted with neutral terms such as “the other
guy” or “him” substituted for the actual names of the various co-defendants.
Additionally, the Commonwealth avers that the trial court properly instructed the jury
that each statement could only be used against the defendant who made it.
Pelzer responds that the Commonwealth’s argument fails to address the
interlocking nature of the statements under Cruz v. New York, 481 U.S. 186 (1987).
Pelzer also cites Vazquez v. Wilson, 550 F.3d 270 (3d Cir. 2008), for the proposition
that contextual implication can violate a defendant’s rights under the Confrontation
Clause.
The PCRA court concluded that the statements were all properly redacted by
replacing references to the co-defendants’ names with neutral pronouns, such as “he,”
“him,” or “the other guy.” The PCRA court also detailed the trial court’s instruction,
concluding that the trial court properly instructed the jury.
[J-13A&B-2013; J-14A&B-2013] - 35
Under governing precedent, the underlying Bruton claim is without merit, and
thus the collateral claim focusing upon appellate counsel lacks merit. We need not
engage the parties’ reliance upon decisional law from other jurisdictions, including the
Third Circuit U.S. Court of Appeals, because those cases do not control, see, e.g.,
Stone Crushed Partnership v. Kassab Archbold Jackson & O’Brien, 908 A.2d 875, 884
(Pa. 2006), and there is ample decisional case law from this Court following and
applying Bruton.
The general rule in a joint trial of co-defendants is that the law presumes that the
jury can follow an appropriate instruction, which explains that evidence introduced with
respect to only one defendant cannot be considered against other defendants. Bruton
departed from this salutary general rule only by concluding that where there are
“powerfully incriminating statements” admitted against a non-testifying co-defendant
who stands side by side with the accused, such statements can be devastating as well
as inherently suspect when they shift the blame to the accused. Commonwealth v.
McCrae, 832 A.2d 1026, 1037 (Pa. 2003). Following Bruton, the U.S. Supreme Court
has approved redaction and a limiting instruction as a means of eliminating the possible
spillover prejudice arising from the admission of a non-testifying co-defendant’s
confession against that co-defendant at a joint trial. Richardson v. Marsh, 481 U.S. 200(1987). Bruton and its progeny establish Sixth Amendment norms governing state
criminal trials, and this Court has had ample opportunity to consider and apply the
precepts. In our own implementation of this federal law, we have explained that the
challenged co-defendant’s statement must be incriminating on its face and that
redactions involving the substitution of neutral pronouns (such as those used here)
instead of names or other obvious methods of deletion, do not obviously identify the
other co-defendants. Commonwealth v. Roney, 79 A.3d 595, 624 (Pa. 2013).
[J-13A&B-2013; J-14A&B-2013] - 36
Applying these settled principles, appellate counsel cannot be deemed ineffective
for failing to pursue the Bruton claim on appeal. The co-defendants’ statements here
were redacted by using neutral pronouns, blunting the concern that they could be
deemed incriminating (as to the other co-defendants) on their face. Indeed, appellees
point to no specific redaction that reflects an obvious method of deletion that would
have invited the jury to substitute one or another co-defendant’s name. Additionally, the
trial court gave an appropriate limiting instruction at the time the statements were
admitted, and again at the conclusion of trial, directing the jury that “a statement made
before trial may be considered only as evidence against the one who made the
statement.” N.T., 11/9/89, at 24. Appellees’ current arguments largely ignore the
specifics of the redactions. The Cruz case that Pelzer cites stands for the proposition
that unredacted interlocking confessions cannot be presumed to be admissible. That
did not happen here. The U.S. Supreme Court and this Court have specifically
approved of the method of redaction employed by the trial court here, and appellees
have not mounted any persuasive argument that shows that, if only appellate counsel
had pursued the issue, there was any prospect of success under existing law. See
Roney, 79 A.3d at 624. Counsel on appeal are not obliged to pursue claims that lack a
reasonable prospect of success. Accordingly, appellees’ claim of appellate counsel
ineffectiveness fails.
E.
Finally, Daniels raises two guilt phase claims not raised by Pelzer. First, Daniels
alleges that the trial court’s reasonable doubt instruction employing the language
“restrain” was in error and trial counsel was ineffective for failing to object to the charge.
Daniels focuses upon the trial court instructing the jury that “[a] reasonable doubt is a
doubt that would cause a reasonably careful and sensible person to restrain before
[J-13A&B-2013; J-14A&B-2013] - 37
acting upon a matter of importance in his own affairs.” N.T., 11/9/89, at 14-15. The
Commonwealth responds that the trial court has broad discretion in phrasing jury
instructions and that this Court has rejected the very same challenge in many prior
cases. The PCRA court’s reasoning follows the precedent-based argument forwarded
by the Commonwealth.
While the more commonly used instruction respecting reasonable doubt employs
the term “hesitate” rather than “restrain,” this Court has repeatedly rejected the
argument Daniels forwards, finding the distinction between the two terms to be de
minimis. See Commonwealth v. Simpson, 66 A.3d 253, 274-75 (Pa. 2013) (collecting
cases); Commonwealth v. Collins, 957 A.2d 237, 264 (Pa. 2008) (collecting cases).
Trial counsel was not ineffective for failing to raise a claim repeatedly rejected; the
layered claim of appellate counsel ineffectiveness necessarily fails.
Second, Daniels raises a layered claim of ineffectiveness arising from the trial
court’s use of the court crier to communicate instructions to the jury outside of his
presence. Daniels avers that the trial court told the crier to relay instructions to avoid
the press and to avoid discussions of the case with outside parties. He then claims that
this unobjected-to process violated his due process right to be present and his right to a
fair and impartial jury. The Commonwealth responds that any statements by the court
crier were fleeting, were entirely consistent with the law governing jury deliberations,
and that Daniels cannot establish prejudice from any of these interactions.
The PCRA court concluded that the statements were communicated to the crier
in the presence of all counsel. Furthermore, the PCRA court noted that the instructions
did not involve legal matters, but were administrative in nature. Accordingly, the court
concluded that the claim lacked merit.
[J-13A&B-2013; J-14A&B-2013] - 38
As a claim sounding in ineffectiveness, this issue is frivolous. Two of the three
interactions referenced by Daniels involved instances when the jury was discharged for
the day. In the first instance, the court told the crier to let the jury go home and “tell
them I caution them not to discuss the case.” N.T., 11/3/89 at 182. The second
instance occurred when the judge released the jury for the weekend, instructing the
court crier to inform the jury that they could go home and that “they [were] not to read
any articles in the newspaper about this case or anything dealing with this case.” N.T.,
11/10/89, at 79. The third instance occurred after the jury asked to be reinstructed on
accomplice liability and murder. The court told the crier to tell the jury to “save [the
request] for tomorrow morning.” N.T., 11/9/89, at 123.
The notion that the outcome of the trial would have been different if only trial
counsel had objected to the above three administrative directives is ludicrous. Lawyers
are not constitutionally obliged to be obstreperous or to make objections just to make
them. Pennsylvania law generally requires a showing that ex parte communications
with a jury resulted in prejudice in order to warrant relief. See Commonwealth v. Ali, 10
A.3d 282, 313 (Pa. 2010) (“Nothing in the truncated explanation of the court crier, or in
appellant's proffer, suggests that the court crier's communication with the jury,
concerning the mere logistics of recording the verdict on the slip, affected the court's
charge or the actual deliberative process of the jury” and appellant could not establish
actual prejudice); Commonwealth v. Bradley, 459 A.2d 733, 739 (Pa. 1983).
Daniels has not established that the substance of the crier’s communications with
the jury was anything other than what the court directed in open court in the presence of
the parties. The crier’s communications were administrative in nature and did not touch
upon substantive matters. Moreover, the directive regarding discussions of the case
when the jurors were sent home were consistent with the law governing jury
[J-13A&B-2013; J-14A&B-2013] - 39
deliberations, and mere reminders of directives the judge issued to the jury in open
court at other times. This layered claim is frivolous.
IV. PENALTY PHASE ISSUES
Having concluded that appellees raise no guilt phase issues warranting relief, we
now turn to the penalty phase. The PCRA court granted appellees penalty phase relief
with regard to their claims that trial counsel were ineffective for failing to investigate and
present evidence in mitigation. We address this issue first.
A.
It is well-settled that “judicial scrutiny of counsel’s performance must be highly
deferential.” Strickland, 466 U.S. at 689. Few tenets are more settled than the strong
presumption that counsel is effective. Id. at 690; Burt, ___ U.S. at ___ , 134 S.Ct. at 17.
“Generally, 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.” Commonwealth v.
Puksar, 951 A.2d 267, 277 (Pa. 2008) (quoting Commonwealth v. Miller, 819 A.2d 504,
517 (Pa. 2002)).
Specifically respecting stewardship in a capital case, it is well-settled under the
Sixth Amendment that counsel has an obligation to conduct a reasonably thorough
investigation for mitigation evidence or to make reasonable decisions that make further
investigation unnecessary. E.g. Commonwealth v. Sattazahn, 952 A.2d 640, 655 (Pa.
2008); Strickland, 466 U.S. at 691-92. In evaluating a claim of constitutional deficiency
in investigating and presenting mitigation evidence, we consider a number of factors,
including the reasonableness of counsel’s investigation, the mitigation evidence that
was actually presented at trial, the additional or different mitigation evidence that the
[J-13A&B-2013; J-14A&B-2013] - 40
PCRA petitioner proves could have been presented, and the countervailing strength of
the Commonwealth’s evidence in aggravation, including rebuttal of the new defense
evidence. None of these factors is, by itself, dispositive, because even if the
investigation conducted by counsel was unreasonable, this fact alone will not require a
grant of relief if the defendant cannot demonstrate Strickland prejudice. Commonwealth
v. Lesko, 15 A.3d 345, 380 (Pa. 2011).
The Strickland test for prejudice requires a showing of a reasonable probability
that the outcome of the penalty proceeding – here, the unanimous verdict of death --
would have been different. Obviously, a penalty verdict only sufficiently supported by
the record is more likely to have been affected by a deficiency in counsel than one with
overwhelming record support. Ultimately, a reviewing court must ask whether “the
result of the particular proceeding [was] unreliable because of a breakdown in the
adversarial process that our system counts on to produce just results.” Lesko,15 A.3d
at 383. In this case, as the jury found four aggravating circumstances and two
mitigating circumstances related to each appellee, the prejudice inquiry considers
whether there is a reasonable probability that, had the PCRA evidence been adduced at
the penalty phase at least one juror would have concluded that the mitigating
circumstances collectively outweighed the aggravating ones. Commonwealth v.
Gibson, 19 A.3d 512, 526 (Pa. 2011) (“Gibson II”).
The PCRA court addressed the mitigation evidence issue as to each appellee
separately, and properly so because the mitigation evidence presented at trial, and the
additional mitigation evidence forwarded at the PCRA level, was particular to each
appellee. Related to appellee Pelzer, the court noted that Pelzer’s mitigation evidence
at trial consisted only of testimony from Pelzer himself and from his aunt, Christine
“Perstine” Foy.
[J-13A&B-2013; J-14A&B-2013] - 41
Pelzer testified that he did not have a prior criminal record, that he moved in with
his father at some point and that he eventually lived with Foy when he was sixteen or
seventeen. He listed the number of sports teams he played on in high school, stating
that he did not complete high school. He also explained that he participated in, but did
not complete, the Reserve Officers’ Training Corps (“ROTC”) program. Pelzer testified
that he began using drugs and alcohol when he was fifteen and that he had been using
cocaine and drinking at the time of the crime. N.T., 11/13/89, 25, 28, 30-31.
Foy briefly testified as to Pelzer’s background, noting that he was a “slow learner
but he was gifted with his hands.” She further testified that Pelzer lived with her for
“awhile” off and on, and that he was always respectful to her and her family. N.T.,
11/13/89, at 46. Ultimately, members of the jury found two mitigating circumstances: (1)
the jury unanimously found the no significant criminal history mitigator, 42 Pa.C.S. §
9711(e)(1), and (2) one juror found the catchall mitigator under subsection 9711(e)(8).
Based upon Pelzer’s PCRA presentation, the PCRA court found that trial counsel
could have presented additional and more pointed evidence from Foy, as well as
testimony from Pelzer’s uncle, Hilderbrand Pelzer, and his aunt Gloria (Hilderbrand’s
wife), about Pelzer’s childhood circumstances. The court further found that trial counsel
could have presented expert testimony in support of two additional mitigating
circumstances.
Foy testified at the PCRA hearing, offering what was indeed more pointed
testimony of Pelzer’s life history. Specifically, Foy claimed that Pelzer’s mother was a
compulsive gambler, who could not keep a stable place of residence and permitted her
home to be taken over by drug dealers. Foy also testified that Pelzer attended five
different elementary schools and three different middle schools due to frequent changes
[J-13A&B-2013; J-14A&B-2013] - 42
of residence. Foy stated that Pelzer’s mother allowed drug dealers to move into the
children’s bedrooms, forcing the children to sleep on the floor.
Foy also testified that the men in Pelzer’s mother’s life abused the children. In
particular, she testified that one man, Tony Barnes, raped Pelzer’s sister and beat
Pelzer and his brother with two-by-four pieces of wood. Foy said that she witnessed
Barnes hitting Pelzer with an ironing cord until his skin split open and that Barnes would
threaten the children “with special little weapons, like metal things tied with knots and
nails.” Foy claimed that she tried to intervene, but Pelzer’s mother was not receptive.
Foy stated that she informed trial counsel of Pelzer’s childhood circumstances, but she
was not asked any questions regarding the information when she testified at the penalty
phase.
Gloria and Hilderbrand Pelzer testified at the PCRA hearing that Pelzer was
designated as socially/emotionally disturbed in school. Hilderbrand and Gloria stated
that they would have testified at the penalty phase hearing had they been asked.
Pelzer also presented expert testimony from two psychologists with Ph.D.s, Dr.
Harry Krop and Dr. Barry Crown, at the PCRA hearing. Dr. Krop testified that school
records indicated that Pelzer had a learning disability and that he suffered from “social,
emotional problems, impulsivity, depression, insecurity, feelings of inadequacy relative
to social situation, and considerable inner tension.” Dr. Krop admitted that there was no
evidence of a “diagnosable mental disorder,” and diagnosed Pelzer as suffering from
polysubstance abuse. He further testified to an opinion that the interactive effect of
Pelzer’s background, his learning disability, and his drug dependence resulted in certain
personality characteristics and coping strategies that combined to cause him to have an
extreme mental or emotional disturbance at the time of the offense, which is a mitigating
circumstance recognized at 42 Pa.C.S. § 9711(e)(2). He then stated an opinion that
[J-13A&B-2013; J-14A&B-2013] - 43
those same factors combined to significantly impair Pelzer’s ability to appreciate the
criminality of his conduct or to conform it to the requirements of the law – adverting to
another statutory mitigating circumstance. See 42 Pa.C.S. § 9711(e)(3). Dr. Krop also
asserted that Pelzer’s school records presented red flags, indicating that psychological
testing was warranted. N.T., 12/11/01, at 63-64, 74-75, 80-81, 85.
Dr. Crown testified that Pelzer’s IQ test results were in the normal range and that
he “matured out of some of these problems with age.” Dr. Crown noted that the school
records reflected that there was a referral to a child psychiatrist and evidence of
depression, feelings of inadequacy and anxiety. Like Dr. Krop, Dr. Crown testified to a
“cumulative” effect of circumstances. In his opinion, Pelzer’s background of abuse,
dysfunction, learning problems, and drug abuse caused Pelzer to suffer from an
extreme mental or emotional disturbance at the time of the offense which impaired his
capability to appreciate the criminality of his conduct and to conform his actions to the
requirements of the law, evidence in support of the same § 9711(e)(2) and (e)(3)
mitigators cited by Dr. Krop. N.T. 12/13/01, at 21, 27, 30-31, 41-42.
Mr. Padova, Pelzer’s trial counsel, also testified at the PCRA hearing, offering
that it would have been his practice to obtain Pelzer’s school records, but admitting that
he did not have notes indicating that he requested the records and he did not recollect
reviewing the records. N.T., 5/10/02, at 47. Padova admitted that he did not retain a
mental health expert, but indicated he may have done so if he had the school records.
Id. at 49-50. (The PCRA court noted in its opinion that the school records reflected that
a psychological examination was performed on Pelzer at age 14 and found him to be
socially and emotionally disturbed; he was placed in a special class. The record
supports the PCRA court’s notation.)
[J-13A&B-2013; J-14A&B-2013] - 44
Padova, testifying over twelve years after the trial, did not recall much of his
investigation and the interviews that he conducted in preparation for the penalty phase,
but he stated that his overall plan was “to present some idea as to Mr. Pelzer’s
background, people that cared for him, cared about him, where he was from, things of
that sort.” Id. at 48. Padova had a note that indicated that he “got” the information that
he wanted from Perstine Foy’s testimony during the penalty phase. Id. at 68.
Furthermore, his notes indicated that he had learned that Pelzer was disrespectful and
was thrown out of school; he testified that he may have considered painting Pelzer in a
positive light for the jury, which is why he may have avoided any discussion of Pelzer’s
time in school. Id. at 74. (We stress, however, that much of Padova’s testimony was
vague or speculative; his central claim was that he did not remember; even with regard
to Pelzer’s school history, Padova stated: “That’s the only thing I jotted down. I don’t
recall whether or not anyone else told me anything.”)
The Commonwealth presented rebuttal expert testimony from Dr. John O’Brien
(M.D. Psychiatry) and Dr. John Gordon (Ph.D. Psychology). Dr. O’Brien testified that he
disagreed with the diagnosis of a mixed personality disorder found in the presentence
investigation prepared after the trial. In any event, Dr. O’Brien further stated that a
mixed personality disorder does not amount to an extreme mental or emotional
disturbance. He agreed that Pelzer suffered from a history of alcohol and mixed
substance abuse, but stated that such abuse likewise is not an extreme mental or
emotional disturbance. Dr. O’Brien specifically disagreed with Dr. Krop and Dr. Crown’s
opinions that there was evidence establishing the (e)(2) or (e)(3) mitigator. Dr. O’Brien
also did not agree that there was evidence of a learning disability, noting that the school
records reflected that Pelzer’s intelligence was “normal,” and that his problems were
“emotional.” N.T., 5/9/02, at 30-32, 122-24, 207-09.
[J-13A&B-2013; J-14A&B-2013] - 45
Dr. Gordon testified that he did not agree that Pelzer suffered from a learning
disability. Instead, like Dr. O’Brien, he testified that Pelzer’s school problems “were
directly related to his social and emotional difficulties.” Thus, Dr. Gordon specifically
discounted Pelzer’s experts’ notion of cumulating factors, which necessarily included a
learning disability component. Id. at 222, 234-35.
The PCRA court concluded that there was no reasonable or strategic reason for
trial counsel’s failure to contact and present testimony from Gloria and Hilderbrand.
Furthermore, the court faulted trial counsel for failing to thoroughly question Foy while
she was on the stand, noting that her testimony at trial was four pages long as
compared to the forty-six pages of testimony at the PCRA hearing. The PCRA court
further found that trial counsel failed to adequately review Pelzer’s school records, “as a
cursory examination would have revealed [his] long-standing psychological issues.”
Furthermore, according to the court, a reasonable attorney would then have hired a
mental health expert given the information in the school records. The court also noted
that “the pre-sentence investigation reported that Pelzer had been diagnosed with
mixed personality disorder. This was not presented to the jury during the penalty
phase.”3 PCRA court Slip Op., 11/22/11, at 33-34. The PCRA court further stressed
that Dr. Krop’s diagnosis for purposes of the PCRA was consistent with the pre-
sentence mental health report, which diagnosed Pelzer as suffering from a “mixed
3
The PCRA court obviously was mistaken to fault counsel for failing to “present” the
pre-sentence investigation report to the jury, since the report did not come into
existence until after the verdict. The pre-sentence report was prepared by Dennis
Martell and was dated December 11, 1989, while the pre-sentence mental health
evaluation prepared by Lawrence Byrne, M.Ed., was dated November 20, 1989.
Presumably, the PCRA court intended its citation to the pre-sentence report as
corroboration that there was something to be found in a mental health diagnosis
contemporaneous to the trial, and that the evidence in the school records should have
triggered an inquiry by counsel along those lines.
[J-13A&B-2013; J-14A&B-2013] - 46
personality disorder, schizoid reactive paranoid and sociopathic features, and a long
history of drug abuse.” Id. at 32.
The PCRA court did not separately discuss Strickland prejudice for each
appellee, summarily concluding instead only that, had the jury known of the troubled
lives and psychological issues afflicting each appellee from multiple sources, at least
one juror would likely have considered the mitigation evidence to be sufficient to favor a
life sentence. The PCRA court further reasoned that this Court’s direct appeal opinion
was relevant in assessing prejudice, noting that “three Supreme Court Justices did not
believe there was sufficient evidence to support the torture aggravating circumstance
and the opinion of two Justices who did not believe there was sufficient evidence to
support the aggravating circumstance of killing a prosecution witness to prevent his
testimony. It is possible that one of the jurors would have given less weight to these
aggravators and that the additional mitigation evidence would have convinced them [sic]
to find that the mitigators were not outweighed by the aggravators.” Id. at 36.
On its present appeal, the Commonwealth argues that trial counsel was effective.
The Commonwealth notes that trial counsel spoke with Pelzer about his background,
asking him for the names of anyone who could testify on his behalf. The
Commonwealth stresses that trial counsel interviewed Pelzer’s mother, Foy,
HiIderbrand, Pelzer’s girlfriend, and a friend named Angel. The Commonwealth notes
that Foy was called and testified that Pelzer was a “slow learner.” Related to
information in the school records, the Commonwealth avers that no one had indicated to
counsel that there could be possible mitigation evidence in those records. Instead, the
only information that counsel received from Pelzer and his family was that he was
disrespectful in school and was expelled. The Commonwealth further contends that this
sort of negative information also was incompatible with counsel’s penalty phase strategy
[J-13A&B-2013; J-14A&B-2013] - 47
of casting Pelzer in a positive light. Thus, the Commonwealth concludes that counsel
cannot be faulted for failing to uncover any mental health mitigation evidence, as he
never received any information that would cause him to thoroughly investigate the
school records and, in any event, the information identified at the PCRA hearing was
contrary to his strategy.
Respecting Foy, the Commonwealth stresses that trial counsel asked Foy open-
ended questions, which provided an opening for discussing the trauma and abuse
Pelzer allegedly suffered as a child. For example, trial counsel asked Foy why Pelzer
lived with her as a child; Foy answered that both of his parents were moving. Yet, when
asked a similar question during the PCRA hearing, Foy responded differently, claiming
that Pelzer moved in with her because of a difficult living situation, and she then
elaborated on that difficulty. The Commonwealth avers that Foy simply changed her
testimony after Pelzer was sentenced to death, and the differences in her account have
nothing to do with the reasonableness of trial counsel’s conduct.
The Commonwealth also addresses trial counsel’s failure to present at trial the
pre-sentence investigation report (despite its non-existence at the time of trial) that
diagnosed Pelzer as suffering from a mixed personality disorder. The Commonwealth
argues that such a diagnosis is a catch-all and does not constitute an extreme mental or
emotional disturbance. Moreover, the Commonwealth notes that its expert disputed
that diagnosis.
In any event, according to the Commonwealth, the evidence produced at the
PCRA proceeding would not have changed the outcome of the trial, as the evidence
may have suggested that abuse occurred, but also would have demonstrated that
Pelzer “enjoyed the love and support of numerous concerned adult relatives to help him
overcome these obstacles.” Brief of Commonwealth at 42. The Commonwealth further
[J-13A&B-2013; J-14A&B-2013] - 48
argues that the school records did not shed light on any of Pelzer’s problems. The
Commonwealth again emphasizes that its own experts did not diagnose Pelzer with any
serious mental health issues and did not even find that he had a learning disability. For
these reasons, the Commonwealth concludes that Pelzer cannot establish that he was
prejudiced by any alleged penalty phase ineffectiveness of counsel.
Pelzer responds that the PCRA court’s findings are supported by the record.
Specifically, Pelzer contends that counsel conducted a very limited investigation into
mitigation evidence, relying on only a narrow set of sources. Pelzer also reiterates his
view that counsel failed to adequately and thoroughly question Foy when she was on
the stand. Pelzer argues that counsel met with Foy for fifteen minutes prior to her
testimony, telling her only that she would be called as a “character witness.” Pelzer
avers that the mere fact that counsel elicited some testimony from Foy does not change
the fact that he could have elicited much more helpful testimony, as demonstrated by
her broader testimony at the PCRA proceeding.
Pelzer then turns to his school records and expert testimony, arguing that even a
cursory examination of the records would have revealed his longstanding psychological
issues. Furthermore, such records, according to Pelzer, would have revealed (1) that
he had been placed in classes for social and emotionally disturbed children and (2) his
unstable home environment (given his frequent changes of address). Pelzer extends
this argument by alleging that the school records would have prompted a reasonably
effective attorney to consult with a mental health expert, which, he says, would have led
to mitigation evidence of the type he presented during the PCRA hearing.
Pelzer further argues that the lack of a proper investigation prejudiced him as his
experts opined that the evidence supported two different statutory mental health-related
mitigating circumstances, and also provided additional information relevant to the catch-
[J-13A&B-2013; J-14A&B-2013] - 49
all mitigator one juror found. Prejudice is established, he says, given the amount of
information that was available, but not discovered, and the dearth of information that
was actually presented. Accordingly, Pelzer concludes that the PCRA court’s
determination that a new penalty phase is warranted should stand.
Having reviewed the testimony presented at the penalty phase, the additional
evidence that allegedly could have been discovered and presented, and the parties’
arguments, we conclude that the PCRA court did not err in holding that Pelzer
established the performance prong of Strickland, i.e., that trial counsel’s penalty phase
performance in ascertaining and presenting mitigation evidence was deficient.4 The
question might be close if the only alleged deficiency consisted in the failure to call
Hilderbrand and Gloria Pelzer and to question Foy more fully concerning various
hardships in Pelzer’s childhood.5 But, that unexplained lapse was heightened by
counsel’s failure to pursue the leads in the school records (assuming counsel even
reviewed those records). The records revealed that Pelzer had struggled in school and
eventually was placed in classes for socially and emotionally disturbed children when he
was fourteen; these facts would have supported and corroborated the family accounts.
4
We stress that the evidentiary hearing was conducted before Judge Lineberger, and
not Judge Temin. Judge Temin’s opinion makes clear that she did not purport to base
her award of a new trial upon credibility determinations, and the Commonwealth does
not seriously dispute core factual matters, such as, for example, that the school records
were available to counsel and provided some fodder for further investigation. We also
note that appellee’s evidence was not, and is not, challenged on grounds that his
experts were unqualified to render such opinions. And thus, in assessing this evidence
for Strickland purposes, we remain mindful that it would have been both (1) admissible
and (2) subject to impeachment and contradiction by the Commonwealth.
5
Trial counsel’s notes reflected that he contacted a man by the name of “Mr. Pelzer,”
who may have been Hilderbrand, while Hilderbrand testified that he did not remember
being contacted by counsel. In any event, there was no indication why counsel did not
call Hilderbrand at trial (assuming that he was the “Mr. Pelzer” that counsel contacted).
[J-13A&B-2013; J-14A&B-2013] - 50
More importantly, this information would have prompted reasonably competent
counsel to at least consult with a mental health expert and consider whether further
psychological examination was warranted to determine if there was something in his
client’s background that could have supported a stronger case in mitigation. Notably,
the nearly contemporaneous diagnosis found in the pre-sentence report, although it was
not nearly so specific or favorable as the PCRA testimony of the experts Pelzer retained
for PCRA purposes (who adverted to specific statutory mitigators) offers some measure
of corroboration that evidence pertinent to a mitigation presentation sounding in mental
health could have been obtained for trial if counsel had pursued the course suggested
by the school records.
Again fully mindful that any case in mitigation sounding in the specific (e)(2) and
(e)(3) mental health mitigators was subject to rebuttal by the Commonwealth, in
assessing counsel’s performance, we must also weigh counsel’s abject failure to
conduct a reasonable investigation against the relative paucity of the case that counsel
actually mustered in mitigation. Counsel’s presentation was minimal, consisting of
testimony from Pelzer himself and brief testimony from Foy. Counsel’s failure to
present a fuller life history and to consult with a mental health expert and uncover and
place before the jury information of Pelzer’s childhood circumstances and mental health
issues was deficient performance. The failure is noteworthy given that counsel asked
the trial court to instruct the jury on the (e)(2) mitigator (i.e., that Pelzer was acting under
the influence of an extreme mental or emotional disturbance) by relying on the sole fact
that Pelzer allegedly shot the victim under the direction of Daniels. The fact that this
theory occurred to counsel should have prompted some measure of supporting
investigation. Equally perplexing, in context, is the fact that counsel knew, at a
minimum, that Pelzer had been a “slow learner,” since Foy testified to that fact at the
[J-13A&B-2013; J-14A&B-2013] - 51
penalty phase. Counsel apparently did nothing to investigate and corroborate Foy’s
description of his client’s limitations. Considering the evidence that reasonably
competent counsel could have uncovered and offered along with the minimal evidence
that counsel actually presented to the jury – and in light of the U.S. Supreme Court’s
emphasis on the importance of mitigation evidence of this nature, Wiggins v. Smith, 539
U.S. 510, 522-23, 534 (2003); Williams v. Taylor, 529 U.S. 362, 396-98 (2000) -- we
conclude that Pelzer has demonstrated that his counsel’s penalty phase performance
was lacking.
Although the issue is close, and reasonable judicial minds might disagree, we
also believe that Pelzer has demonstrated Strickland prejudice. The jury unanimously
found four aggravating circumstances: (1) the victim was a prosecution witness to a
murder or other felony; (2) the victim was being held for ransom or reward; (3) the
offense was committed by means of torture; and (4) Pelzer and his cohorts committed
the killing while in the perpetration of a felony. The jury also found, unanimously, the
lack of a significant prior criminal history as a mitigating circumstance, and a single juror
independently found the catchall mitigator.6
Given the relative paucity of the mitigation presentation by counsel at trial, it is
significant that jurors were still receptive enough to find two mitigators, one
unanimously; and that finding also suggests that the jury did not view the aggravators
established by the Commonwealth as being of such a quality – as, for example, in a
case of multiple murders – as to make the jury unreceptive to a comparative case in
mitigation. Compare Lesko, 15 A.3d at 383-85 (multiple murders case). When
analyzing Strickland prejudice in the context of the penalty phase of a capital trial, we
6
The jury did not specifically enumerate the mitigating factor or factors that this juror
considered to comprise the catchall circumstance.
[J-13A&B-2013; J-14A&B-2013] - 52
must also keep in mind how tailored death penalty proceedings are toward life
sentences, largely under the command of the U.S. Supreme Court, not only in the
channeling of aggravators and the differing burdens of proof governing aggravators and
mitigators, but also in the fact that a single juror can effectively negate the prospect of a
death sentence. See Commonwealth v. Gibson, 951 A.2d 1110, 1149-50 (Pa. 2008)
(Castille, C.J., concurring, joined by McCaffery, J.) (“Gibson I”); 42 Pa.C.S. §
9711(c)(1)(iv).
Thus, for purposes of assessing Strickland prejudice, the question is whether the
defendant has shown a reasonable probability that, had the mitigation evidence
adduced at the PCRA hearing (and rebutted by the Commonwealth) also been
presented at the penalty phase, the outcome of the proceedings would have been
different because at least one juror would have found that the mitigating circumstances
collectively outweighed (or were as weighty as) the aggravating circumstances, or to
convince a juror to find that the overall quality of the case in mitigation warranted a
sentence of life in prison. See, e.g., Gibson II, 19 A.3d at 526. Parenthetically, we note
that the Court has previously held that where the jury has found a mitigating
circumstance, including the catchall mitigating circumstance, the defendant cannot
demonstrate Strickland prejudice based on additional evidence supporting that same
mitigator. Commonwealth v. Rios, 920 A.2d 790, 812-13 (Pa. 2007); Commonwealth v.
Marshall, 812 A.2d 539 (Pa. 2002). However, a majority of the Court has recently
recognized the difficulty with that proposition, and has concluded instead that the
analysis requires a qualitative assessment. See Commonwealth v. Tharp, 2014 WL
4745787 (Pa. September 24, 2014) (Castille, C.J., concurring; Saylor, J., concurring,
joined by Todd, J.; Eakin, J., concurring (three concurring opinions, representing views
of four members of Court, effectively overruling proposition in Rios and Marshall)).
[J-13A&B-2013; J-14A&B-2013] - 53
Tharp followed from cases such as Gibson II and Commonwealth v. Robinson, 82 A.3d
998, 1015-17 (Pa. 2013), which recognized that the weighing process involves an
assessment of the relative strength and weakness of the aggravating and mitigating
evidence, which is necessarily a qualitative and not a quantitative approach, especially
when the catchall mitigator is at issue.
The task of reweighing is not an exact science: we must evaluate the relative
strength of the evidence in aggravation and mitigation, as well as the parties’ arguments
in light of the full hybrid record produced at trial and upon collateral attack. Id. Here,
much of the evidence that Pelzer offered on collateral attack, in addition to arguably
supporting the mental health mitigating circumstances outlined in Section 9711(e)(2)
and (3), would also tend to strengthen the case in support of the (e)(8) catchall
mitigator, lending more weight to that mitigator. At the PCRA hearing, Drs. Krop and
Crown testified that the information provided to them supported conclusions that Pelzer
suffered from an extreme mental or emotional disturbance at the time of the offense
which impaired his capability to appreciate the criminality of his conduct (the (e)(2)
mitigator), and that he was unable to conform his conduct to the requirements of the law
(the (e)(3) mitigator). The experts based their opinions on a combination of factors,
including Pelzer’s learning disability, his troubled childhood, and his drug and alcohol
abuse. To be sure, the Commonwealth presented experts in rebuttal, who testified to
their opinions that Pelzer did not suffer from a learning disability and that he did not
establish either of the mental health mitigators. Of course, in a case of dueling experts,
it is difficult to project which set of experts the jury or any single juror would have
chosen to believe, or even if the jury would have been receptive to the notion that the
opinions here, on the evidence presented, properly made out the mitigators. What can
be known, however, is that those opinions would have been admissible and become
[J-13A&B-2013; J-14A&B-2013] - 54
part of the mix for the jury’s consideration; and, even if the jury did not find the mental
health mitigators specifically, the additional information was still available for
consideration under the catchall mitigator, and in the jury’s overall comparative
assessment. Noting again the relative paucity of the case in mitigation actually
forwarded at trial, we believe that, at a minimum, there is a reasonable probability that
at least one juror would have found a stronger case for mitigation under the catchall
mitigator. Similarly, if counsel had presented a fuller account of appellee’s life history,
there is a reasonable probability that a reasonable juror would have given more weight
to appellee’s life history factors in assessing the catchall mitigator.
Meanwhile, the evidence in aggravation established that appellees and their
cohorts kidnapped a 16-year-old youth and held him for ransom before deciding to kill
him. Although there was some division on the Court in resolving the direct appeal,
concerning the sufficiency of the evidence to prove the torture aggravator and the
aggravator involving a killing to eliminate a witness, the other two aggravators – that the
victim was being held for ransom and that he died while appellees were committing the
felony of kidnapping -- were strongly supported by the evidence. Moreover, in
assessing Strickland prejudice, although some members of the direct appeal Court may
have been unconvinced respecting certain aggravators, the fact remains that the jury
unanimously found all four circumstances beyond a reasonable doubt; contrary to the
view of the PCRA court, there is no reason to believe that the jury harbored the same
doubts about those aggravators that were articulated, as a legal matter, by the Justices
ultimately in the minority on those issues.7
7
The issue concerning the sufficiency for the aggravators, on this record, was
definitively resolved on the direct appeal reargument in Daniels by a 4-3 vote.
[J-13A&B-2013; J-14A&B-2013] - 55
This is a strange business, assessing the relative heinousness of murders as
against evidence in mitigation. Obviously, a murder can be committed without first
subjecting a young victim to the terrorization inherent in confining the youth in the trunk
of a car for a mercilessly long period of time, with a sock stuck into his mouth in a
manner that could easily cause asphyxiation; there is, to be sure, an extra measure of
depravity beyond “mere” murder here. Nonetheless, particularly given the weakness of
the case presented in mitigation at trial, and the dictated standard of Sixth Amendment
review, we conclude that there is a reasonable probability that at least one juror would
view both the mitigation case differently, and the overall penalty judgment differently,
and would have decided against the imposition of the death penalty. In our view, there
is at least a sufficient prospect of that result as to call into question the basic fairness of
the proceeding, in light of counsel’s ineptitude. Accordingly, we affirm the PCRA court’s
award of a new penalty phase hearing as to appellee Pelzer.8
B.
We turn now to the Commonwealth’s appeal challenging the grant of penalty
phase relief to Daniels, on grounds that trial counsel was ineffective in his presentation
of mitigation evidence. Trial counsel forwarded a case in mitigation that stressed both
8
There is no need to examine at length appellate counsel’s performance on direct
appeal in not raising this claim. The Commonwealth argues that this claim is defaulted
because trial counsel’s ineffectiveness could have been raised on direct appeal by new
counsel. However, Pelzer’s appellate counsel testified at the PCRA hearing that he
believed that he was limited to raising issues preserved on post-verdict motions. N.T.,
5/9/02, at 57-59. At the time this direct capital appeal was litigated, this simply was not
so. See, e.g., Commonwealth v. Grant; see also supra n.1 (discussing Grant and prior
law). In this circumstance, it is appropriate to examine the underlying claim of
ineffectiveness on collateral review. Walker, 36 A.3d at 7-8 & n.8; Commonwealth v.
Ly, 980 A.2d 61, 101-02 (Pa. 2009) (Castille, C.J., concurring).
[J-13A&B-2013; J-14A&B-2013] - 56
disruptions and difficulties in Daniels’s upbringing, as well as positive aspects of his life
and character, including his conduct following his conviction. Thus, counsel called
Daniels’s great-grandmother, Evangelist Bertha Williams, who testified that Daniels had
lived with her at different points during his childhood. Ms. Williams noted that two of
Daniels’s siblings were deceased. She also testified that Daniels’s father was very cruel
to him, beat him, and did not support the family financially. She explained that Daniels
moved to California to live with her when he was ten, and that he was successful in high
school, attended a year of college but then could not afford to buy books for college.
She also testified that following this murder, her great-grandson had become a devout
Christian. Daniels testified on his own behalf, confirming that he had become a
Christian and that he felt remorse for the victim’s death. He also apologized to the
victim’s mother. Finally, trial counsel offered testimony from the Reverend Moses
Ruffin, who was the director of a prison ministry. Rev. Ruffin testified that Daniels had
attended all of the services and classes offered by the ministry at the prison and that
Daniels spoke often of having changed his life.
In his closing argument to the jury, counsel admitted that this was a “cruel” crime,
but he then argued for mercy. Counsel explained that Daniels would have to spend
every day for the duration of his life in prison, which is a serious penalty. He then asked
the jury what legal authority it had to take a life and argued that extending mercy was
consistent with a mind of goodness and fairness. Finally, he focused on the value to
society if Daniels was not put to death, since he would be an example of positive
change for the other inmates. N.T., 11/13/89, at 138-48. Ultimately, members of the
jury found two mitigating circumstances: (1) six jurors found the no significant criminal
history mitigator, 42 Pa.C.S. § 9711(e)(1), and (2) the jury unanimously found the
catchall mitigator under subsection 9711(e)(8).
[J-13A&B-2013; J-14A&B-2013] - 57
At the PCRA hearing, Daniels’s mother, Jacqueline Daniels, testified concerning
various negative or traumatic events in her son’s life history, including that his sister was
killed by an automobile when he was twelve, his brother committed suicide, and the
family was forced to relocate often because his father gambled, abused drugs and
alcohol, and could never pay the rent. Daniels attended ten different schools because
of the family’s frequent moves. Ms. Daniels also stated that Daniels was often beaten
with a belt by his father, once resulting in hospitalization, and his father forced him to
stand in a corner, for the rest of the night, “just about every night” after Daniels wet the
bed. Ms. Daniels testified that she was not contacted about testifying at the penalty
phase and, had she been contacted, she would have cooperated. N.T., 12/10/02, at
140-52.
Daniels also presented expert testimony from Dr. Allen Tepper (Ph.D. in
psychology), who testified -- based upon school records, his interview with Jacqueline
Daniels (who provided him with the information relayed above), and a mental health
evaluation – to an opinion that Daniels suffered from a mixed personality disorder and
was dependent upon drugs and alcohol. Dr. Tepper further stated that this diagnosis
was supported by the diagnosis in the pre-sentence investigation report, as well as the
opinion of the Commonwealth’s PCRA expert, Dr. O’Brien, who had diagnosed Daniels
as suffering from alcohol and drug abuse.9 Dr. Tepper also stated his view that the
combination of the life history information and the drug and alcohol abuse were relevant
to the (e)(2) and (e)(3) mental health mitigators. Dr. Tepper testified that he did not
recall ever being contacted by standby counsel, Mr. Drost, in preparation for trial and
that he had no notes indicating any such contact. N.T., 5/7/02, at 104, 105.
9
Dr. O’Brien testified on behalf of the Commonwealth at the PCRA hearing in both
cases.
[J-13A&B-2013; J-14A&B-2013] - 58
On cross-examination, Dr. Tepper noted that Daniels had achieved fairly good
grades during 7th and 8th grade and in 10th grade, and he specifically testified that he did
not believe that Daniels met the criteria for the (e)(3) mitigator (regarding the ability to
conform one’s conduct to the requirements of the law). However, Dr. Tepper reiterated
his opinion that, “given his (Daniels) makeup, his personality disorder, and his
dependency difficulties O he was suffering from what is described as extreme mental or
emotional disturbance.” Id. at 121-22, 125, 135.
Attorney Houston, an out-of-state practitioner hired by Daniels’s family, did not
appear at the PCRA hearing; there is no explanation in the record for appellee’s failure
to call him. Instead, Daniels called Attorney Drost. Drost testified that he reviewed the
available discovery and hired an investigator prior to Houston’s involvement in the case.
Drost also recalled that his private investigator contacted Dr. Tepper, explaining that it
was part of his normal routine in capital cases. He further testified that Dr. Tepper did
not always issue an expert report. Drost recalled interviewing Jacqueline Daniels, but
did not recall whether he had obtained Daniels’s school records. Drost recalled
discussing both the guilt and the penalty phase with Houston, and specifically
remembered discussing Daniels’s upbringing with Houston and offering that “bringing
out testimony of these types of things would be mitigation.” He did not recall that
Houston ever provided him a reason why he did not present that evidence, but Drost
opined that “Mr. Houston’s approach was to rely upon the AlmightyO.” Drost also
testified to his own preferences, i.e., that he would have presented mitigation evidence
of Daniels’s upbringing, childhood abuse, numerous relocations, and the death of his
two siblings during the penalty phase. Drost further explained that he provided all of his
notes and relevant information to direct appeal counsel, adding that he also conveyed to
[J-13A&B-2013; J-14A&B-2013] - 59
appeal counsel his opinion that “this was perhaps the worst single job of lawyering that I
had ever seen.” N.T., 12/12/01, at 8-9, 12, 23-24, 50-51, and 70 (redirect).
Daniels testified at the PCRA hearing, discussing that he had been “saved” since
the time of his crime and explaining how his prison activities furthered his religious
conversion.
The PCRA court opined that trial counsel’s penalty presentation focused on
Daniels’s religious conversion after he was arrested, while presenting very little
evidence respecting his pre-crime background. The court further found that Attorney
Drost had provided Attorney Houston with significant mitigation evidence that Houston
did not ultimately use. The court was persuaded that counsel could have presented
more detailed evidence of Daniels’s background and, in the court’s view, such evidence
would not have been inconsistent with the strategy that counsel actually pursued, i.e.,
focusing upon Daniels’s religious conversion and his poor relationship with his father. In
the court’s view, such a strategy would have “presented a picture of a person who had a
terrible childhood but had some potential when in a structured environment such as
prison.” PCRA court Slip Op., at 27. Furthermore, the court found that Houston’s
failure to present any testimony from Jacqueline Daniels was unreasonable since Drost
had performed the initial investigation and had alerted Houston to the existence of her
potential testimony related to Daniels’s life history. The court then determined that the
evidence of Daniels’s abusive upbringing not presented would have altered the
sentencing profile presented to the jury. Respecting Strickland prejudice, as noted
earlier, the PCRA court’s analysis was the same for both appellees.
On appeal, the Commonwealth argues that Attorney Drost conducted a thorough
investigation of possible mitigation evidence concerning Daniels’s background by
interviewing family members. The Commonwealth further notes that Drost knew of the
[J-13A&B-2013; J-14A&B-2013] - 60
deaths of Daniels’s sister and brother, that Daniels had moved numerous times, and
that he lacked a male role model. The Commonwealth further notes that Drost hired a
forensic clinical psychologist prior to trial (Dr. Tepper), who evaluated Daniels in
preparation for the penalty phase.10 This information was provided to Attorney Houston
when he took over the case.
The Commonwealth avers that counsel then presented an adequate case in
mitigation at trial. The Commonwealth emphasizes that Drost “was just as much
Daniels’[s’] trial attorney as Mr. Houston,” that Drost was actively involved in the case,
and that “they were co-counsel[] to Daniels.” Brief of Commonwealth at 31. Most
important, according to the Commonwealth, is the fact that Drost consulted Dr. Tepper
prior to trial and that “while Mr. Houston may not have personally investigated
Daniels’[s] mental health via Dr. Tepper, his co-counsel Mr. Drost clearly did.” Id. at 33.
The Commonwealth argues that Houston, once he assumed the defense, was not
required to take the redundant step of contacting Dr. Tepper after he was contacted by
Drost. For similar reasons, the Commonwealth argues that Houston’s decision not to
present testimony from Jacqueline Daniels was not ineffective, as the information
counsel presented through Daniels’s great-grandmother was similar in content;
Jacqueline Daniels’s account would have been redundant.
The Commonwealth also contends that producing “more” background testimony
of the same basic life history carried a “substantial risk of alienating the jury” as it could
have led the jury to believe that Daniels was irredeemable. Instead, the Commonwealth
claims, counsel struck a balance by presenting evidence of Daniels’s background
without repeating the negative information “ad nauseum.”
10
Dr. Tepper diagnosed Daniels with mixed personality disorder and drug and alcohol
dependency. As noted, there was no report from Dr. Tepper produced for trial and he
did not testify at the penalty phase.
[J-13A&B-2013; J-14A&B-2013] - 61
In any event, according to the Commonwealth, Daniels was not prejudiced by
counsel’s alleged ineffectiveness. The Commonwealth argues that Dr. Tepper’s
diagnosis of mixed personality disorder and drug dependency would not have changed
the outcome of the penalty phase. Furthermore, the Commonwealth notes that Dr.
Tepper testified at the PCRA hearing that Daniels did not have a mental illness or
organic brain damage, and that he had the capacity to appreciate the criminality of his
conduct and to conform his conduct to the requirements of the law. Additionally, the
Commonwealth argues that the testimony of Jacqueline Daniels was not particularly
persuasive, and supported a determination that Daniels was a “normal” child – indeed,
he was the first of her children to graduate from high school, he did not give her any
trouble or cause trouble in school, and he attended college. For these reasons, the
Commonwealth concludes that testimony by Dr. Tepper and Jacqueline Daniels, along
the lines of what was produced at the PCRA hearing, would not have changed the
outcome of the penalty phase proceeding.
Daniels responds that trial counsel whitewashed his history of childhood abuse
and trauma, events which shaped his psychological functioning at the time of the
murder. Daniels argues that his parents failed to furnish life’s basic necessities, such as
shelter, sustenance, love, and emotional support. Instead, he suffered mental and
physical abuse at the hands of his father and witnessed similar abuse directed at his
brother and mother. Daniels adds that the suicide of his older brother had a “stunning”
impact on him and that everything fell apart thereafter. Brief of Appellee Daniels, at 17.
Daniels further notes that some of this information was gathered by Mr. Drost, yet
Mr. Houston never presented the information. Furthermore, counsel failed to perform
any type of psychological profiling, but instead, Daniels says, chose to rely on “divine
intervention,” an ineffective strategy.
[J-13A&B-2013; J-14A&B-2013] - 62
Daniels further argues that counsel’s decision to rely on post-incarceration
achievements when there was readily available life history evidence was inadequate.
Daniels then avers that the PCRA court correctly concluded that trial counsel did not
fully investigate the available mitigation evidence and then make a reasoned strategic
decision. Instead, counsel failed to properly prepare for the penalty phase.
Finally, Daniels turns to Strickland prejudice, arguing that his traumatic life
experiences resulted in lasting psychological effects. He notes that the prosecutor
argued to the jury that there was no mitigation evidence offered at trial other than the
“possibility that he may have gotten religion.” N.T., 11/13/89, at 122. Echoing the
PCRA court, Daniels asserts that the evidence he produced at the PCRA hearing would
have altered the sentencing profile presented to the jury. Daniels also contends that the
fact that the jury unanimously found the catchall mitigator does not disprove that he was
prejudiced, since the jury may have accorded the mitigating circumstances much
greater weight had it been exposed to the full mitigating circumstances of his life. For
these reasons, Daniels concludes that trial counsel was ineffective for failing to
investigate and present additional mitigation evidence, which would have altered the
outcome of the proceedings.
For purposes of decision, we will assume that counsel’s performance was
deficient (although the point is debatable); however, we are not persuaded that Daniels
has established that he was prejudiced by counsel’s failure to produce additional
mitigation evidence along the lines of what was produced at the PCRA hearing.
Counsel presented a modicum of evidence to the jury of Daniels’s troubled background,
but mixed it with an evidence on some of his successes in life, combined with an
acceptance of responsibility, an apology, and evidence of Daniels’s religious conversion
– a point no doubt resonant with many jurors, and a point understandably important
[J-13A&B-2013; J-14A&B-2013] - 63
enough to Daniels himself that he repeated it at the PCRA hearing. The jury still
returned a unanimous verdict of death. By way of immediate comparison, the additional
mitigation evidence adduced at the PCRA hearing was not so different or significant as
that proffered by co-defendant Pelzer in his own collateral presentation. Thus, Dr.
Tepper opined that Daniels suffered from a mixed personality disorder and substance
abuse, testimony that was not as precise or certain as the testimony of Dr. Crown or Dr.
Krop, and it is difficult to see how it could have altered the outcome of the penalty
proceeding. For example, although Dr. Tepper initially testified that there was evidence
to support the Section (e)(3) mitigator, he retracted that view on cross-examination.
Similarly, there was no evidence in Daniels’s school records to suggest any significant
mental health history that warranted, or required, further investigation. Instead, Daniels
appeared to be a good student both academically and emotionally: he was a high
school graduate and he attended a year of college. We are not persuaded that there is
a reasonable probability that the jury, or any one juror, would have concluded that the
evidence produced for the PCRA hearing, combined with the mitigation already made
available to the jury, warranted a finding that the (e)(2) mental health mitigator existed
and, considered with the other relevant penalty evidence, warranted a verdict of life in
prison.
Additionally, although Jacqueline Daniels’s testimony at the PCRA hearing
offered greater insight into Daniels’s troubled childhood, the fact remains that similar
evidence was already presented to the jury: Daniels’s great-grandmother testified that
Daniels’s father was cruel and beat him. Of course, it is theoretically possible that a
juror or two would have given the catchall mitigator some additional weight if Ms.
Daniels had testified, but the question the Court must answer is whether the additional
testimony by Jacqueline Daniels and Dr. Tepper was weighty enough to the point where
[J-13A&B-2013; J-14A&B-2013] - 64
there is a reasonable probability that one juror may have decided against the imposition
of the death penalty.
Based on the record of the PCRA proceedings and the trial, we simply cannot
conclude that such a reasonable probability existed. The aggravating circumstances
demonstrated that Daniels was actively involved in a plan to kidnap a young man, not
yet an adult, for ransom. The victim died as a result of the conduct of Daniels and his
cohorts, but only after having been cruelly confined in the trunk of a car for twenty-four
hours, tied up and with a sock stuffed in his mouth. Given the case in mitigation already
presented to the jury emphasizing both Daniels’s troubled childhood as well as positive
attributes and his religious conversion, and the substantial evidence in aggravation, we
do not believe that the marginal additional mitigation evidence produced at the PCRA
hearing was sufficient to establish a reasonable probability that the result of the penalty
phase would have been different. Under these circumstances, we cannot conclude that
the additional mitigating evidence undermines confidence in the jury’s verdict. The
PCRA court’s summary conclusion respecting Strickland prejudice to the contrary
cannot stand, and it is hereby reversed.
V. DANIELS’S ADDITIONAL PENALTY PHASE ISSUES
Having concluded that the PCRA court’s award of a new penalty phase to
Daniels on the mitigation evidence issue must be reversed, we now address Daniels’s
additional penalty phase arguments, all of which were rejected by the court below.
A.
In his cross-appeal penalty phase briefing, Daniels first argues that trial counsel
should have objected to the trial court’s unconstitutionally vague torture instruction.
Daniels argues that the Court has recognized that the torture aggravating circumstance
[J-13A&B-2013; J-14A&B-2013] - 65
is unconstitutionally vague absent an appropriate limiting instruction. According to
Daniels, the definition of torture given by the trial court could apply to virtually any
murder case and failed to narrow the class of persons eligible for the death penalty, in
violation of the Eighth Amendment. Brief of Appellee Daniels at 62 (citing Maynard v.
Cartwright, 486 U.S. 356 (1988)). Daniels contends that trial counsel had no reason for
failing to object to the instruction and he further contends that he was prejudiced by the
failure as the jury found the torture aggravator.
The Commonwealth briefly responds that the Court has repeatedly approved of
materially identical torture instructions in other cases and rejected the argument that
similar instructions are unconstitutionally vague. Thus, the Commonwealth concludes
that trial counsel was not ineffective for failing to make a baseless challenge to the
torture instruction.
The PCRA court held that prior case law established that a trial court must give a
limiting instruction separating the intent to kill from the intent to torture. It then
concluded that the instruction by the trial court in this case informed the jury that the
infliction of pain must be more than simply the pain associated with murder when it
stated that the infliction of pain must be “unnecessarily heinous, atrocious, or cruel.”
Furthermore, the PCRA court believed that the trial court addressed the principle of
separate intent by immediately explaining intent after giving the torture instruction.
The trial court’s relevant jury instruction regarding torture reads as follows:
Now, as to torture, torture is the intentional infliction of a considerable
amount of pain and suffering on the victim which is unnecessarily heinous,
atrocious or cruel manifesting exceptional depravity. Now, by “intent” is
meant, a person intends a certain matter if he consciously does or intends
to do a certain object, bring about a certain object. Now, intent may be
shown by words or by acts or conduct of the parties involved.
[J-13A&B-2013; J-14A&B-2013] - 66
N.T., 11/13/89, at 150. The trial court also instructed the jury that the Commonwealth
had the burden of proving the aggravating circumstances beyond a reasonable doubt.
Id. at 152.
In Pennsylvania, we have indeed generally defined torture as “the infliction of a
considerable amount of pain and suffering on a victim which is unnecessarily heinous,
atrocious, or cruel manifesting exceptional depravity.” Commonwealth v. Nelson, 523
A.2d 728, 737 (Pa. 1987). We further require a trial court to define torture for the jury
when the torture aggravator is at issue “in order to channel the sentencer's discretion by
clear and objective standards that provide specific and detailed guidance that make the
process for imposing a sentence of death rationally reviewable”; a jury cannot simply be
directed to determine whether the victim was tortured without a definition of the concept.
Commonwealth v. Stevens, 739 A.2d 507, 524 (Pa. 1999); see also Nelson, 523 A.2d at
737; Commonwealth v. Wharton, 607 A.2d 710, 723 (Pa. 1992).
The focus of Daniels’s argument is that the trial court supposedly provided part of
the relevant instruction, but not all, since it failed to specifically inform the jury that in
order to find the aggravator a defendant must have the specific intent to torture, which is
distinct from the intent to kill. See Stevens, 739 A.2d at 524 (Commonwealth must
show beyond reasonable doubt that defendant possessed an intent, separate from
intent to kill, to inflict pain and suffering). Daniels cites Nelson for the proposition, a
case which pre-dated his trial and which was cited with approval in Stevens.
In Nelson, the Court explained that the torture aggravator must necessarily
require more than an intent to kill in order to pass constitutional muster. “Implicit in
subsection 8 [torture aggravator] is the requirement of an intent to cause pain and
suffering in addition to the intent to kill.” Nelson, 523 A.2d at 737. Daniels argues that
the trial court erred in failing to instruct the jury as to a requirement of an additional and
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separate specific intent to inflict pain and suffering. But, in forwarding his argument,
Daniels overlooks that the Nelson Court then cited with approval the instruction that was
given in Commonwealth v. Pursell, 495 A.2d 183 (Pa. 1985), which did not make the
distinction that Daniels now urges is required. The Pursell Court described the trial
court instruction in that case:
The Court defined torture to the jury as follows: “One of them is the model
Penal Code in which they say that the offense or murder committed by
means of torture is designed for the defendant who causes a considerable
amount of pain and that the language used for this particularly aggravating
circumstance is the murder was especially heinous, atrocious, or cruel
manifesting exceptional depravity. Also, another place that I felt may be
appropriate in trying to define for you torture was in the American Law
Reports. These reports stated that since murder is an intentional act, that
many courts have determined, regarding murder by torture, a specific
intention that the torture murderer has in committing the homicide. It has
been held that this is an intention to inflict pain, suffering or both pain and
suffering.
495 A.2d at 197 n. 13. As against Daniels’s present argument, the instruction issued in
this case was materially indistinguishable from the one given in Pursell. Furthermore,
we have indicated more recently that the type of instruction given here was a proper
statement of the law when it was given. See Commonwealth v. Brown, 786 A.2d 961,
966 (Pa. 2001) (citing with approval instruction in Commonwealth v. Thomas, 561 A.2d
699, 709 (Pa. 1989), which was similar to instruction given here). Viewed in its entirety
and in context, the instruction in this case accurately explained what was required to
support a finding of the torture aggravator, and counsel cannot be faulted for failing to
object to it. As Daniels has not established that trial counsel was ineffective in failing to
object to the charge, his layered claim of ineffectiveness also fails.
B.
Daniels next contends that trial counsel was ineffective for failing to object to the
trial court’s instruction regarding the witness elimination aggravator, per Section
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9711(d)(5). Daniels contends that, on its face, the (d)(5) aggravator is applicable only to
the killing of a prosecution witness in a pending proceeding. He finds support for this
proposition in Commonwealth v. Crawley, 526 A.2d 334 (Pa. 1987) and Commonwealth
v. Caldwell, 532 A.2d 813 (Pa. 1987). He acknowledges that the Court expanded its
understanding of the aggravator in Commonwealth v. Appel, 539 A.2d 780 (Pa. 1988),
which was decided prior to his trial.
In Appel, the Court held that the (d)(5) aggravator could be applied to
circumstances involving future criminal proceedings if there was direct evidence that the
killing occurred to eliminate a potential witness. Nevertheless, according to Daniels, the
(d)(5) aggravator has not been applied with consistency in Pennsylvania. See Brief of
Appellee Daniels, at 65-66, citing to Commonwealth v. Marshall, 568 A.2d 590 (Pa.
1989). Furthermore, Daniels argues that he lacked fair warning that this aggravator
could be deemed applicable. Additionally, he contends that the trial court failed to
provide the jury with the definition of “direct evidence” and also failed to instruct the jury
that the aggravator must be found by proof beyond a reasonable doubt. Daniels notes
that trial counsel could have objected to the instruction, pointing out that counsel for one
of the co-defendants had raised the issue during the guilt phase. Furthermore, Daniels
explains that appellate counsel challenged the evidence in support of the aggravator on
direct appeal, but failed to raise a challenge to the instruction itself; in that regard,
Daniels says, appellate counsel was ineffective.
The Commonwealth responds that the language of the statute is not so limiting,
but applies to “any” grand jury or criminal proceeding. Furthermore, the Commonwealth
argues that the Court’s Appel decision put Daniels on notice that the (d)(5) aggravator
could apply to potential witnesses in future criminal proceedings, as long as it was
supported by direct evidence. The Commonwealth also accurately notes that the trial
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court made clear that the aggravating circumstances had to be established by the
Commonwealth beyond a reasonable doubt (citing N.T., 11/13/89, at 152). Additionally,
the Commonwealth argues that the jury had been given the definitions of “direct
evidence” and “circumstantial evidence” during the guilt phase jury instructions. Finally,
the Commonwealth argues that the Court has consistently held that the (d)(5)
aggravator can apply to potential witnesses since Appel, and stresses that the sole case
cited by Daniels in fact applied the aggravator consistently with Appel.
The PCRA court concluded that this issue was barred because it was already
litigated on direct appeal.
The trial court instructed the jury as to the killing of a prosecution witness
aggravator as follows:
Now, whether or not under number five – the victim was a prosecution
witness – it would depend on whether you find by direct evidence that the
Defendant in effect, either/or both Defendants in effect brought about the
death of Alexander Porter with the intent to prevent his being a witness
against them in this case. They must do this by direct evidence and not
circumstantial evidence.
N.T., 11/13/89, at 150.
The Appel Court explained the distinction between the circumstances in Crawley
and Caldwell and Appel, stating that the Court had earlier “superimposed” a pending
proceeding requirement onto the (d)(5) aggravator in order to limit the application of the
aggravator to circumstances where the “requisite animus,” i.e., the intent to remove the
victim as a pending witness, was present. The Court further explained, however, that
where the evidence suggested that the purpose of the killing was to eliminate a potential
future witness, as was the case in Appel, then the (d)(5) aggravator could be properly
invoked. The Court then explained that, while the aggravator could be supported by
circumstantial evidence if the murder was of a witness in a pending proceeding, the
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killing of a potential witness in a not-yet-pending proceeding required support by direct
evidence. See Appel, 539 A.2d at 784 n.2.
In this case, our analysis is limited to the propriety of the trial court’s instruction,
as the sufficiency of the evidence supporting the aggravator was already finally litigated
on direct appeal. See Daniels, 612 A.2d at 399-400. The trial court properly followed
the holding in Appel by instructing the jury that the (d)(5) aggravator could only be found
if it was supported by direct evidence, as opposed to circumstantial evidence. The
instruction was a clear iteration of the recently decided Appel decision. Daniels’s
argument that he lacked fair notice that the aggravator could be applied to him is
meritless, as Appel was decided six months before the September 1988 murder of
Alexander Porter. Additionally, as the Commonwealth notes, the jury was earlier
instructed as to the definition of direct evidence, and was told that it was the
Commonwealth’s burden to establish the aggravating circumstances beyond a
reasonable doubt. In sum, Daniels has not proven counsel ineffective for failing to
pursue this claim, and his derivative, layered claim of appellate counsel necessarily
fails.
C.
Daniels next forwards a claim based on Commonwealth v. Lassiter, 722 A.2d
657 (Pa. 1998) (plurality), a case decided nearly ten years after the trial in this case.
Daniels argues that “all parties agree” that he did not personally inflict any gunshot
wounds upon the victim. He explains that Lassiter was clear that the killing in the
perpetration of a felony aggravator under Section 9711(d)(6) does not apply to mere
accomplices. Daniels argues that Lassiter merely clarified the statute and did not
change it, as the discussion in Lassiter was this Court’s first pronouncement on the
substance of the (d)(6) aggravator. Daniels then contends that, prior to his trial, the
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U.S. Supreme Court in Enmund v. Florida, 458 U.S. 782 (1982), held that a killing in the
perpetration of a felony aggravator could only apply where the evidence demonstrated
that a participant in a felony murder either killed or attempted to kill the victim, or
intended that a killing take place, or that lethal force be employed. According to
Daniels, under Enmund, an instruction was required to inform the jury that capital
culpability must be based on the accomplice’s proven desire, i.e., an intent to bring
about the victim’s death.
Daniels also contends that even if Lassiter reflected a change in the law, such a
rule would not bar relief here because Attorney Drost testified that he discussed with
Attorney Houston a theory that the (d)(6) aggravator could not apply to an accomplice,
and yet Houston failed to object. Thus, Daniels says, trial counsel was put on notice of
the viability of a challenge to the (d)(6) aggravator. Daniels then maintains that the
prejudice arising from the failure to object to and negate the aggravator is self-evident.
Finally, Daniels contends that appellate counsel was ineffective for failing to raise the
record-based issue on direct appeal.
The Commonwealth forwards two primary arguments in response. First, the
Commonwealth contends that there was evidence that Daniels was a principal in the
murder and not merely an accomplice, citing as proof this Court’s opinion in the first
collateral appeal, where we stated that “the jury could have found that both actors were
principals based upon the evidence presented O the evidence inculpated both men
depending on whose version of the shooting the jury believed.” Daniels and Pelzer, 963
A.2d at 432, n.17. Second, the Commonwealth notes that counsel’s effectiveness must
be evaluated using the standards in effect at the time of trial. At the time of trial here,
Lassiter had yet to be decided, and trial counsel may have concluded that any Lassiter-
type objection would have been futile. Indeed, the Commonwealth notes that the Court
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has upheld the sentencing of a defendant, prior to Lassiter, where the jury found the
(d)(6) aggravator based on accomplice liability. See Brief of Commonwealth at 56
(citing Commonwealth v. Spotz, 896 A.2d 1191, 1239 (Pa. 2006)).
The PCRA court concluded that the ruling in Lassiter constituted a change in the
law and that counsel cannot be ineffective for failing to predict that change. PCRA court
opinion, at 21 (citing Spotz, 896 A.2d at 1238-39). Accordingly, the court determined
that trial counsel was not ineffective for failing to object to the (d)(6) aggravator.
Although the members of the Court have not all been of one view on the issue,
the PCRA court’s conclusion was consistent with this Court’s prevailing case law,
concluding that Lassiter reflected a change in the law. See Commonwealth v. Cox, 983
A.2d 666, 702 (Pa. 2009). However, the wrinkle here is the fact that Attorney Drost
testified that he had a conversation with trial counsel in which he outlined a possible
challenge to the (d)(6) aggravator. Nevertheless, even assuming that Drost’s
conversation could be construed as enough to trigger an obligation on counsel’s part,
the instruction that was actually given in this case raises no concern under Lassiter.
The Court has explained that Lassiter involved jury instructions related to the
(d)(6) aggravator that were given in the passive voice, i.e., that the “killing was
committed in the perpetration of a felony.” Commonwealth v. Rega, 70 A.3d 777, 793
(Pa. 2013) (citation omitted). Such concerns are not raised, however, when the
instruction tracks the language of the statute and advises the jury that the aggravator
applies when the “defendant committed a killing while in the perpetration of a felony,” as
the court has “conveyed the essential information in an understandable form.” Id.In this case, the trial court quoted the language of the statute when instructing
the jury with regard to the (d)(6) aggravator, stating that the aggravator applied when
“[t]he Defendant committed a killing while in the perpetration of a felony.” N.T.,
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11/13/89, at 150. Daniels’s current argument does not acknowledge that the language
of the jury instruction tracked the language of the statute and, instead, focuses on the
fact that he himself did not pull the trigger. His argument necessarily assumes that the
jury could only have found him liable as an accomplice because of that fact. Daniels
further contends that because there was no indication that the jury actually found him to
be the principal “shooter,” this Court cannot perform an analysis of the trial evidence,
without usurping the jury’s function. Daniels concludes that it is not this Court’s role on
collateral review to speculate as to how the jury could have determined the facts.
The Commonwealth, however, proffered its own version of the facts, providing
the jury with its own theory of the case in which Daniels was a principal. As in Rega,
the Commonwealth was entitled to rely on the strength of its own case in pursuing this
aggravator. Additionally, the fact that the trial court gave the appropriate jury charge,
requiring the jury to find that “the Defendant,” i.e., Daniels, minimized any uncertainty.
Id. at 794. The issue of trial counsel ineffectiveness is without merit and the layered
claim of appellate counsel ineffectiveness necessarily fails.
D.
Daniels next contends that appellate counsel was ineffective for failing to raise a
claim that he was entitled to a “life means life” instruction pursuant to Simmons v. South
Carolina, 512 U.S. 154 (1994) (plurality), a case decided after his trial. Daniels avers
that the Commonwealth injected future dangerousness into the proceedings when it
questioned him on cross-examination as to whether “you said on direct testimony
something about wanting to go back out on the street. You still hope that you are going
to go back out there on the street and you will do everything that you can to make sure
you do, right?” N.T., 11/13/89, at 68. According to Daniels, this line of questioning
implied that he would impose a threat upon release. Daniels further argues that the
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Simmons claim became available because it was decided during his direct appeal
proceedings, and thus, appellate counsel should have raised a claim of ineffectiveness
related to trial counsel.
The Commonwealth responds that the brief exchange cited by Daniels did not
amount to placing Daniels’s future dangerousness at issue. In any event, according to
the Commonwealth, Simmons is inapplicable to this case, as it was decided nearly five
years after the trial, it announced a new rule of law, and trial counsel cannot be held
ineffective for failing to anticipate a change in the law.
The PCRA court concluded that the Commonwealth did not invoke Daniels’s
future dangerousness by this brief exchange.
This Court has been clear that an ineffectiveness claim premised on Simmons
will not be available to defendants whose trial was completed prior to the decision.
Commonwealth v. Fletcher, 986 A.2d 759, 801 (Pa. 2009); Commonwealth v. Ly, 980
A.2d 61, 97 (Pa. 2009). Daniels attempts to avoid application of this principle by placing
the ineffectiveness at the feet of appellate counsel, arguing that Simmons was decided
and available during the pendency of his direct appeal. Even assuming that appellate
counsel could have secured review of the issue via relaxed waiver, the claim would
have failed because we agree with the Commonwealth and the PCRA court that the
brief exchange did not implicate Daniels’s future dangerousness. Instead, when read in
context, the question merely suggested that Daniels’s guilt phase testimony was
inconsistent with his police statement, intimating that he would lie, i.e., “do everything”
that he could to get back on the streets. Appellate counsel was not obliged to read the
exchange out of context, or to torture the language of the exchange in order to
manufacture an appellate issue. Accordingly, this claim of appellate counsel
ineffectiveness fails.
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E.
Daniels next argues that trial counsel was ineffective for failing to object to the
joint penalty phase proceeding. According to Daniels, the joint sentencing did not
comport with the “individualized sentencing” mandated by the U.S. Supreme Court.
Furthermore, Daniels continues, severance was particularly warranted in this case
because the defenses were antagonistic – each defendant blamed the other for the
shooting. Daniels additionally argues that the greater quality and quantity of mitigation
evidence offered by Pelzer harmed him, especially since the trial court did not give
repeated instructions on individualized sentencing determinations.
The Commonwealth responds that “individualized sentencing” does not mean
that Daniels was entitled to a separate penalty phase proceeding. Instead, the term
merely means that Daniels was entitled to a determination of his sentence based on his
individual characteristics and the circumstances of the crime. In this case, Daniels and
Pelzer presented separate penalty phase evidence and arguments. Additionally,
appellees argued for the application of different mitigating circumstances and the trial
court specifically instructed the jury that they had to make two distinct findings. The
Commonwealth also asserts that alleged hostility between co-defendants does not
require severance. Indeed, the Commonwealth argues that this Court has indicated
that the fact that defendants have conflicting versions of the facts is a reason for, rather
than against, a joint trial.
The PCRA court held that appellees were sentenced individually and both
presented separate arguments and evidence. The court also indicated that different
mitigation evidence was produced in each case and the trial court specifically instructed
the jury to consider the sentence of each appellee separately.
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We see no error in the PCRA court’s determination. The U.S. Supreme Court
has broadly held that individualized sentencing is required in all capital cases in order to
satisfy the Eighth Amendment. Lockett v. Ohio, 438 U.S. 586, 602, 605 (1978). The
Court has further explained that individualized sentencing is satisfied when the jury is
permitted to consider all of the relevant mitigating evidence. Blystone v. Pennsylvania,
494 U.S. 299, 307 (1990). In conjunction with these directives from the High Court, this
Court has indicated that there is no constitutional right to an individual sentencing
hearing, so long as each defendant receives an individualized sentence and the jury is
free to consider the mitigation evidence. Commonwealth v. Simpson, 66 A.3d 253, 275
n.27 (Pa. 2013); Commonwealth v. Bond, 985 A.2d 810, 824 (Pa. 2009);
Commonwealth v. Romero, 938 A.2d 362, 381 (Pa. 2007); Commonwealth v. Hughes,
865 A.2d 761, 815 (Pa. 2004). Additionally, in order to be entitled to Strickland relief,
the petitioner must demonstrate a reasonable probability that the outcome of the
proceedings would have been different had counsel moved for, and secured, a
severance. See, e.g., Romero, 938 A.2d at 381.
In this case, appellees offered individual mitigating evidence. Daniels pursued
four mitigating circumstances to the jury: his lack of prior criminal history, his mental
capacity, his age at the time of the crime, and the catchall mitigating circumstance.
Pelzer pursued four mitigating circumstances as well: his lack of prior criminal history,
the fact that he was acting under extreme duress at the time of the crime, his age, and
the catchall mitigator. Additionally, the trial court presented the jury with two separate
sentencing forms and instructed the jury that it was obliged to “make two findings.”
N.T., 11/13/89, at 156. Daniels’s preference for a separate sentencing proceeding is
not the same as a right to such a process. In this case, he was accorded the
individualized sentencing process that is required by the Eighth Amendment, and thus
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counsel cannot be deemed ineffective in failing to object to the joint proceeding.
Moreover, and for similar reasons, Daniels has not demonstrated Strickland prejudice.
Accordingly, this claim of trial counsel ineffectiveness fails, as does the derivative claim
related to appellate counsel.
F.
Daniels next contends that trial counsel was ineffective for failing to object to the
prosecutor’s inflammatory closing argument. Daniels states that a capital sentence
cannot stand when it results from prosecutorial comments which mislead the jury into
imposing death for impermissible reasons. According to Daniels, the prosecutor’s
argument directed the jury to ignore mercy and mitigation evidence and to focus instead
on irrelevant factors, such as a comparison to the victim. Daniels avers that the
prosecutor mocked his religious activities, and dismissed his mitigation evidence as an
“excuse” and a “cop-out.” Separately, he contends that the prosecutor argued to the
jury that this was not a case for mercy by improperly imploring the jury to “show
[Daniels] the same mercy they showed to Alexander Porter,” in “taking him to the park
O and le[aving] him out there like a piece of trash.” N.T., 11/13/89, at 123-24. Daniels
concludes that the cumulative effect of the prosecutor’s argument was to undermine his
mitigation evidence and derogate the concept of mercy, infecting the sentencing phase
with unconstitutional unfairness.
The Commonwealth responds that a prosecutor in a capital murder case can be
an advocate and may urge the jury to reject a defendant’s mitigation evidence in favor
of imposing the death penalty. Furthermore, the Commonwealth contends that this
Court has consistently rejected claims challenging the propriety of the prosecutor asking
the jury to show a capital defendant the same mercy that he showed to his victim. The
Commonwealth also contends that the prosecutor’s comment on Daniels’s “jailhouse
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conversion” was entirely appropriate given that the evidence suggested that the
conversion occurred only after he was arrested and incarcerated for the instant murder.
The PCRA court concluded that the prosecutor was “within reasonable bounds,”
as it is was within the scope of a prosecutor’s closing argument to question the
applicability of mitigating circumstances. Similarly, the court concluded that the
prosecutor’s mercy comment was merely oratorical flair and did not entitle Daniels to
relief. See PCRA court Slip Op., at 16 (citing Commonwealth v. Freeman, 827 A.2d
385, 415 (Pa. 2003)).
The PCRA court’s reasoning was sound; counsel cannot be deemed ineffective
for failing to forward the objections Daniels now identifies. It is well-settled that a
prosecutor in closing argument is afforded reasonable latitude and is permitted to
employ oratorical flair in arguing in favor of death. It is also not improper for the
prosecutor to urge the jury to view a defendant’s mitigation evidence with disfavor. See
Commonwealth v. Elliott, 80 A.3d 415, 443 (Pa. 2013); Commonwealth v. Chmiel, 30
A.3d 1111, 1181 (Pa. 2011). In order to constitute a deprivation of due process, the
alleged “misconduct” by the prosecutor must be of sufficient significance to deprive the
defendant of a fair trial. Chmiel, 30 A.3d at 1181. Fair commentary on the defense
case hardly meets that standard. Finally, with regard to mercy, in Freeman, this Court
noted that we had “consistently found permissible similar statements asking the jury to
show the defendant the same mercy that he showed his victim.” Freeman, 827 A.2d at
415 (collecting cases); Chmiel, 30 A.3d at 1182.11
The Court has reviewed the prosecutor’s closing argument in its entirety, and
then focused on the select portions of the argument that Daniels specifically complains
11
We recognize that Mr. Justice Saylor has expressed a contrary view on this point.
See Freeman, 827 A.2d at 418 (Saylor, J., concurring and dissenting).
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about. The argument directed the jury’s attention to the aggravating circumstances and
argued why the mitigating circumstances should be rejected. The prosecutor urged the
jury to view Daniels’s mitigation evidence with disfavor. This line of argument was
entirely within the range of argument we have previously permitted.
The prosecutor then argued that the jury should not show appellees mercy, by
stating that “this [was] not a case in which mercy should be shownO. Why don’t you
show them the same mercy that they showed Alexander Porter.” N.T., 11/13/89, at 123.
The prosecutor continued by noting that appellees had taken everything important from
the victim, “then when they are done with him they take him to the park, either there or
another place and shot him and left him lying there like a piece of trash.” Id. at 124.
Again, the Court has held on multiple occasions that it is permissible for the
Commonwealth to ask the jury to show the defendant the same mercy he showed the
victim.
In any event, Pelzer’s counsel objected and Daniels’s counsel later joined the
objection. The trial court overruled the objection, stating that counsel would have the
opportunity to respond. Daniels’s counsel in fact did respond to the prosecutor’s
argument, urging the jury to exercise mercy because Daniels would be incarcerated for
the remainder of his life, and Daniels’s religious conversion was of value to society. Id.
at 141-14. On this record, Daniels’s claim of trial counsel ineffectiveness plainly fails
and his derivative claim of appellate counsel necessarily fails.
VI. CUMULATION CLAIM
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Finally, Daniels argues that the cumulative nature of the ineffectiveness claims
he has raised prejudiced him, warranting a new trial.12 This Court has rejected three of
Daniels’s ineffectiveness claims solely on the basis of a lack of prejudice: the Brady
claim related to the forensic report, the layered Strickland claim arising from the trial
court’s use of the court crier to inform the jury that it would be re-instructed the next day,
and the layered Strickland claim involving mitigation evidence at the penalty phase.
This Court has recognized that if multiple instances of deficient performance are
found, the assessment of Strickland prejudice may be properly premised upon
cumulation. See Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We have
rejected two guilt phase claims on grounds of “no prejudice.” Notably, the Brady claim
thus rejected was a small part of a much greater claim faulting counsel for failing to
challenge the cause of death -- an argument forwarded, thoroughly discussed, and
rejected during the first collateral appeal, as we have explained at length above. The
layered Strickland claim respecting the court crier, meanwhile, did not implicate
substantive matters, and the potential for prejudice was minimal, if not non-existent.
The only issue of any consequence resolved on “no prejudice” grounds was the layered
Strickland penalty phase issue related to mitigation evidence. This Court has
thoroughly discussed the issue above. Because the other claim resolved on prejudice
grounds did not implicate the merits of the penalty proceeding, there is nothing material
to cumulate. Thus, this claim fails.
12
Pelzer raises a similar claim of cumulation, which would be relevant to assessing only
guilt phase prejudice since we have affirmed the award of a new penalty phase.
However, only Pelzer’s Brady claim related to the forensic report was resolved solely on
grounds of an absence of prejudice, and thus, there are no claims to cumulate related to
Pelzer.
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VII. MANDATE
For the foregoing reasons, the PCRA court’s order awarding Kevin Pelzer a new
penalty phase hearing, but denying him guilt phase relief, is affirmed. The PCRA
court’s order awarding Henry Daniels a new penalty phase hearing is reversed and his
PCRA petition is hereby dismissed.13
Jurisdiction in all four appeals is relinquished.
Messrs. Justice Eakin and Baer, Madame Justice Todd and Mr. Justice Stevens
join the opinion.
Mr. Justice Saylor files a concurring and dissenting opinion.
13
The Prothonotary of the Supreme Court is directed to transmit the complete record of
Henry Daniels’ case to the Governor pursuant to 42 Pa.C.S. § 9711(i).
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