Appeal from the Order entered on 12/12/00 at No. 969 November Term 1980 denying amended PCRA petition in the Court of Common Pleas, Criminal Division of Philadelphia County.
The opinion of the court was delivered by: Mr. Justice SAYLOR*fn1
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.
This is a capital post-conviction appeal.
In April 1980, Appellant shot and killed the victim, Mr. Keith Singleton. Appellant was tried in 1981 and convicted of first-degree murder and possessing an instrument of crime. At the penalty hearing, the Commonwealth presented evidence in aggravation that Appellant had a significant history of violent felony convictions. See 42 Pa.C.S. §9711(d)(9). Such history included two prior murders, one of which occurred in New Jersey when Appellant was sixteen years of age. The other was a few months after the murder of Mr. Singleton and involved the killing of police officer Ernest Davis, for which Appellant received a separate sentence of death. Of particular relevance here, in the defense presentation at the penalty phase of trial, Appellant's trial counsel offered only testimony from Appellant himself, asking him to explain the circumstances of his New Jersey offenses and to offer anything he wished to say concerning his personality and character. As presently characterized by the Commonwealth, Appellant was not directly responsive to the latter line of inquiry, but rather, he "inform[ed] the jury of his alleged mistreatment by the criminal justice system," yielding an "unsympathetic" presentation. Brief for Appellee at 15. Counsel then made the following brief closing argument:
I am going to say very little to you at this time, because I wouldn't presume to tell you how to decide this question that is coming before you. The reason I asked Mr. Beasley to take the stand was because I felt that you should know him a little bit as I know him, having represented him.
I want to draw your attention to the fact that the case which we heard so much about for the last two weeks is the case that now finally you have heard what really happened. An officer was shot, and Mr. Beasley was convicted of that crime. That incident pervaded this trial. We felt as if we were trying that case over again. The aura of that case pervaded this one.
I am not going to tell you anything about that case, as far as the legal arguments or the positions in the case, because I don't know. I was not his attorney in that case. I just want you to know that, in that case he does have an attorney. Motions have been filed with the Court claiming that certain errors were made. I don't even know what those errors are claiming to be, and that those motions have not been decided by the Court.
Therefore, the Court has not yet given its final judgment on that case.
As far as the Atlantic County case, I asked Mr. Beasley about it, and you heard what he said. And you can draw your own conclusions from that.
Again, I won't presume to tell you how to handle the situation. I will leave it up to you as citizens and human beings.
N.T., July 16, 1981, at 58-60.
Appellant was sentenced to death upon the jurors' finding of the significant-history aggravator and no mitigators. See 42 Pa.C.S. §9711(c)(1)(iv). Trial counsel continued to represent Appellant through the direct appeal, in which this Court affirmed the judgment of sentence. See Commonwealth v. Beasley, 505 Pa. 279, 479 A.2d 460 (1984). Appellant pursued an initial post-conviction petition, which was dismissed in 1988, with that result being affirmed on appeal as well. See Commonwealth v. Beasley, 395 Pa. Super. 649, 570 A.2d 585 (1990), appeal denied, 527 Pa. 584, 588 A.2d 507 (1990).
In 1992, Appellant filed a second post-conviction petition, which is the subject of the present proceedings. In connection with this petition, Appellant submitted an affidavit of his trial counsel indicating, inter alia, as follows:
This trial was my first case involving a penalty-phase hearing on the application of the death penalty.
At the time of the trial, I was not aware that I could have introduced evidence at the penalty phase regarding psychological troubles that, even though not severe enough to merit a diminished capacity defense, the jury would nevertheless have been obligated to consider while making the decision whether or not to sentence Mr. Beasley to death.
At the time of trial, I was not aware that I could have introduced virtually any evidence at the penalty phase that would bear on Mr. Beasley's background, character, or moral culpability.
I spent very little time preparing exclusively for the penalty phase of trial. Virtually all of my penalty phase efforts were devoted to my attempts to exclude evidence of Mr. Beasley's conviction for the murder of a police officer, which conviction was not yet final, from being introduced as an aggravating circumstance. I performed no additional investigation for the penalty phase.
I never asked Mr. Beasley whether he had experienced, or been treated, evaluated or examined for, psychological troubles or illness in the past, and Mr. Beasley never volunteered any such information. I never asked Mr. Beasley whether he had any alcohol or drug abuse problems, and Mr. Beasley never volunteered any such information.
I never asked Mr. Beasley whether he had been subject to harsh physical punishment as a child, and Mr. Beasley never volunteered any such information.
I never asked Mr. Beasley to describe for me contributions that he had made to his community or his family through the course of his life, and Mr. Beasley never volunteered any such information.
I was not aware that Mr. Beasley had been hospitalized for mental illness at the age of 17, and never asked Mr. Beasley or his family any questions that would have elicited that information.
I met once with Mr. Beasley's family before the trial, and did not meet with them during the trial. I did not ask them any questions that would have elicited, or did elicit, any of the information referred to in the preceding five paragraphs.
I never asked Mr. Beasley or his family whether they knew of any other potential witnesses who would testify to either Mr. Beasley's character or to any other circumstances bearing on his moral culpability for the Singleton homicide.
I never undertook to obtain, assemble or present any evidence of Mr. Beasley's past psychological troubles because I believed that Mr. Beasley was competent to stand trial, and because he clearly did not suffer from a mental defect severe enough to warrant any diminished capacity defense during the guilt phase.
Before allowing Mr. Beasley to take the stand during the penalty phase of the hearing, I was not aware that Mr.
Beasley had been diagnosed as suffering from severe verbal deficiencies, and was also not aware that a psychiatrist had concluded that because of his mental illness he tended to lose thought control and become panicked and vague whenever emotionally stimulated.
Subsequently, Appellant requested funds to secure an evaluation by a mental-health expert, which the PCRA court (per Judge Papalini) denied via an order containing no explanation. Apparently, former PCRA counsel attempted to secure a mental health examination on a pro bono basis, but the expert whom he initially consulted indicated that he was unable to form an opinion as to Appellant's mental status due to the passage of fifteen years of time. See N.T., April 7, 1995, at 9, 12-13. The PCRA court proceeded to schedule an evidentiary hearing, limited to the issue:
Was trial counsel ineffective in failing to present evidence at the penalty phase of trial concerning Petitioner's good behavior while in prison; his positive behavior as a father to his several children; and the alcoholism and neglect by his father?
Multiple substitutions of PCRA counsel ensued, and in 1998, the case was reassigned to Judge Savitt, followed by additional counsel substitutions.
At the evidentiary hearing, Appellant moved to expand the scope of the hearing and submitted affidavits from two forensic psychiatrists opining, inter alia, that, at the time of his offenses, Appellant suffered from severe mental-health impairments including schizoaffective disorder, which, had such impairments been developed before the jury, would have implicated two statutory mitigators. See 42 Pa.C.S. §9711(e)(2) ("The defendant was under the influence of extreme mental or emotional disturbance."), (e)(3) ("The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired."). In response, the PCRA court inquired extensively into whether Judge Papalini had dismissed all claims other than the one subject to the evidentiary hearing, ultimately concluding that dismissal had not been effectuated. See N.T., June 5, 2000, at 32-48. Thus, the court recognized that, although it was proceeding on the basis of Judge Papalini's order limiting the scope of the hearing, it had the obligation to address all of Appellant's claims.*fn2 The court also indicated that it would address the ruling with regard to the defense mental-health experts in connection with its opinion. See N.T., June 6, 2000, at 353.
Appellant proceeded to introduce records of a previous psychiatric hospitalization which had occurred prior to trial (when Appellant was seventeen), as well as various pre-sentence reports relating to other of Appellant's crimes, which contained indicia of mental illness.*fn3 See, e.g., N.T., June 5, 2000, at 93, 106; N.T., June 6, 2000, at 375-76, 385.*fn4 Further, Appellant presented testimony from friends and family members concerning the hospitalization; Appellant's excessive drug and alcohol use; and irregular behavior on Appellant's part, such as climbing through windows for no apparent reason and attributing actions and events to an imaginary person. See, e.g., N.T., June 6, 2000, at 260, 286-88, 332.
Appellant's PCRA counsel also questioned trial counsel, who indicated that he had much difficulty remembering the case; that his recollection was better at the time he executed his affidavit (1992); and that he did not have any reason to dispute the contents. See, e.g., N.T., June 5, 2000, at 65-67. Various of counsel's responses to questioning concerning the failure to assemble mental-health records were as follows:
[The Court]: Did you get his hospital records?
A: I -- as far as I know, Your Honor, I did not.
[The Court]: Okay. Do you know why you didn't?
A: I can't say at this point. I have to assume -- now, this is ...