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decided: October 19, 1989.


Appeal from Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Trial Division at Nos. 3203 and 3205 September Term 1982, and No. 3827 August Term, 1982.


Marilyn J. Gelb, Philadelphia, for appellant.

Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., Hugh J. Burns, Jr., Asst. Dist. Atty., Robert A. Graci, Chief, Deputy Atty. Gen., for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott,*fn* Zappala, Papadakos and Stout, JJ. Stout, Former Justice, did not participate in the decision of this case. Nix, C.j., files a concurring and dissenting opinion. Zappala, J., files a concurring and dissenting opinion.

Author: Mcdermott

[ 523 Pa. Page 54]


Pursuant to 42 Pa.C.S. ยง 9711(h) we review the judgment of sentence of death imposed on Herbert Watson by the Court of Common Pleas of Philadelphia County. On November 10, 1983, a jury found Watson guilty of first degree murder, aggravated assault, and possession of an instrument of crime. Following a sentencing hearing, the jury determined that the Commonwealth established one aggravating circumstance, which outweighed the two mitigating circumstances offered by Watson. A sentence of death was imposed and the court sentenced appellant to consecutive terms of five to ten years imprisonment and two and one half to five years imprisonment respectively for the other crimes. In April of 1986, at the request of both parties, Watson's appeal to this Court was remanded for evidentiary hearings on all claims of ineffective assistance of counsel. The court rejected those claims and the matter was returned to this Court for argument and disposition.

[ 523 Pa. Page 55]

The record established the following. On June 15, 1982, Herbert Watson went to the residence of Sheryl Harding. Both had lived together for approximately five years until they separated two weeks before the above date. Shortly before Watson arrived, Roslyne Johnson, Harding's sister, and Maxilyn Vann, Johnson's boyfriend, responding to Harding's telephone call, drove to the house to get Harding and her two children. While they waited outside in Vann's car, Watson approached and fired three shots into the car, two of which struck Vann. Johnson, seeing Watson approach, locked Harding's front door. Watson, however, shot the lock off and proceeded upstairs. There, he grabbed Harding from the closet where she was hiding with her two children, and shot her twice. After reloading his gun and leaving the room, he returned, shot Harding one more time, and then shot himself.

It is the policy of this Court to ascertain in all capital cases whether the evidence presented was sufficient to to support a finding of first degree murder. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982) cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). There can be no doubt that the evidence presented here, when viewed in the light most favorable to the Commonwealth as verdict winner, was sufficient to sustain a finding of first degree murder. That evidence showed that Watson purchased the weapon and ammunition two days before the shooting, that he stated his intention to kill Harding upon entering the house, and that he shot Harding twice in the chest and once in the leg, thereby causing her death. Although appellant now argues that counsel rendered ineffective assistance by failing to call witnesses whose testimony might have persuaded the jury that he lacked the capacity to form the specific intent to kill necessary for first degree murder, this argument for a new trial must be considered separately. The evidence would still suffice to support a finding of first degree murder regardless of the presence of any additional contrary evidence on the matter of intent. Watson's ineffectiveness claim, in this regard,

[ 523 Pa. Page 56]

    does not contest the sufficiency of the evidence, but argues that the jury ought to have heard other evidence that might have persuaded it to reach a different conclusion.

The "other evidence" that Watson argues his attorney should have investigated and presented to the jury consists of the results of psychological and psychiatric testing. About eight months after his arrest, at the request of his court-appointed attorney, Watson was examined by Dr. K. William Hylbert, a fourth-year resident in psychiatry at Temple University Medical School. Hylbert submitted a written report to counsel following a forty-five minute evaluation of Watson. At the end of the report, he wrote, "It does seem that Mr. Watson was psychotic after the incident, but I cannot be certain as to his mental status at the time of the shootings. I do believe that he had a diminished capacity to understand what he was doing. He is not psychotic now."

Watson's court-appointed attorney then requested and was granted funds for further testing, which was performed by Dr. Gerald Cooke, a clinical and forensic psychologist, in June of 1983. Cooke did not prepare a full report for counsel, having been advised that private representation had been retained on Watson's behalf. He did, however, provide a summary of his findings, which were as follows:

His aggravated assault on the man in the car, Maxilyn Vann, was in my opinion, precipitated by delusions and hallucinations resulting in Mr. Watson perceiving that he was in danger and needed to shoot Mr. Vann, before Mr. Vann shot him. He believed Mr. Vann to be his commonlaw wife's boyfriend and actually perceived Mr. Vann's face as Bernard's. Thus, this shooting appears to meet the voluntary manslaughter criteria. However, his shooting of his girlfriend, Sheryl Harding, though committed while psychotic, agitated and depressed, was in my opinion, deliberate and intentional and I see no basis for insanity or diminished capacity in this shooting.

Cooke also contacted Watson's newly retained attorney, Lewis Small, to advise that he had conducted an evaluation.

[ 523 Pa. Page 57]

The attorney, however, did not pursue substantive discussions with Cooke about his opinion of Watson's mental condition.

Dr. Kenneth Kool, a forensic psychiatrist, also examined Watson, on August 18, 1983, at Small's request. He made no final diagnosis or written report of his evaluation and was not called to testify at trial.

At the evidentiary hearing, trial counsel, Kenneth Mirsky, who had been assigned the case by Lewis Small, testified as to his reasons for not offering these witnesses. The doctors testified as to the opinions they would have offered if called.

According to Mirsky, he spoke with Hylbert prior to trial and determined that his testimony was not helpful, and indeed might lend support to the Commonwealth's case for proving premeditation. Although Mirsky was unable to recall specifically what Hylbert said that led him to this conclusion, Hylbert's testimony at the evidentiary hearing substantiates Mirsky's assessment. Hylbert testified that he found no evidence that at the time of the killing Watson was "unable to appreciate the difference between right and wrong or to appreciate the nature and consequences of his acts." He also stated his belief that Watson had "the cognitive abilities and premeditative plan to carry out his acts." The statement in his written report of his belief that Watson "had a diminished capacity to understand what he was doing," Hylbert explained, was not intended to be a reference to any legal concept of diminished capacity, but merely reflected his judgment as a psychiatrist that anyone who turns a gun on himself and shoots "is in need of some form of improved insight and judgment function."

We must agree with the conclusion of the trial judge, who also presided at the evidentiary hearing, that the appellant has utterly failed to meet his burden of proving that counsel was ineffective in not producing Hylbert as an expert at trial. Not only has he failed to overcome the presumption that counsel acted properly, the Commonwealth, by having

[ 523 Pa. Page 58]

Hylbert testify at the hearing, produced evidence demonstrating the reasonableness of counsel's decision.

He next asserts that counsel was ineffective for failing to contact Cooke, after receiving the copy of the summary evaluation prepared for prior counsel. He argues that the results of this examination would have supported a claim that the killing was done "in the heat of passion," which in turn would have reduced the degree of homicide to voluntary manslaughter.

Although it is not precisely stated, analysis of this ineffectiveness claim must of necessity involve two components, because the evidence indicates that trial counsel, Mirsky, and his colleague, Small, each had different roles in the events. Mirsky testified that he did not recall being advised, either by Watson or by Small, that Watson had been evaluated by Cooke. Cooke's correspondence was with Small, and there is no indication that Mirsky was aware of the summary evaluation letter prior to trial. As to Mirsky, then, the claim of failure to investigate and to present available psychological testimony unravels for lack of evidence that Mirsky knew of its availability. However, because it was Small who was retained to represent Watson and who prepared the case, at least initially, Watson's assertion that his counsel was ineffective in not at least interviewing Cooke encompasses Small's course of action as well. In conducting this review we are not unmindful of the fact that present counsel attempted to demonstrate the unreasonableness of Small's decision without calling Small to testify, choosing instead to present only the testimony of the doctors and Mirsky. These witnesses provided no insight into the reason Small acted as he did.

In assessing the decision not to follow-up the initial contact by Cooke, we must be careful not to apply a hindsight analysis. The question is whether an attorney, knowing the circumstances of the crimes his client had been charged with, upon receiving Cooke's letter could reasonably have decided that it would not be worthwhile to consult with him further. From Cooke's testimony, and from the

[ 523 Pa. Page 59]

    letter itself, it is apparent that some time before the letter was written on August 18, 1983, Cooke talked on the phone with Small about having done an evaluation of Watson. Small, however, had written to Kool on August 9, requesting that he evaluate Watson. From the informal salutation of Small's letter, it may be inferred that Small was well acquainted with Kool. Thus, at the time he received Cooke's summary evaluation, Small was apparently anticipating a report from a more familiar source.

Cooke's letter expressed the opinion that the shooting of Sheryl Harding, "though committed while psychotic, agitated and depressed, was . . . deliberate and intentional and [there was] no basis for insanity or diminished capacity." Earlier in the letter, Cooke indicated a familiarity with the concept of voluntary manslaughter, and his assessment of the shooting of Maxilyn Vann stood in marked contrast to his assessment of the shooting of Sheryl Harding. This alone suggests good reason for counsel not to have pursued Cooke's testimony as an expert.

Mirsky also did not recall being advised, either by Watson or Small, that Watson had been examined by Kool. The lower court found as fact, however, based on the other evidence presented at the hearing, that Mirsky at some point must have become aware of Kool's involvement in the case, since he repeatedly advised Watson's family that Kool's fee had to be paid before he would be available to testify. The court also found from the record that the reason Kool was not used as an expert witness was that Watson and his family were unable to pay for his services. Present counsel derisively characterizes counsel's failure to present Kool as "pocketbook decision making" and suggests that the absence of expert testimony demonstrates that Watson had inadequate opportunity to present a defense. It cannot be ignored that Watson knowingly discontinued ...

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