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Commonwealth v. Bracey

December 29, 2009


Appeal from the Order of the Court of Common Pleas of Philadelphia County dated June 12, 2007 at CP-51-CR-0632821-1991.

The opinion of the court was delivered by: Mr. Chief Justice Castille


SUBMITTED: May 15, 2009


In this appeal, this Court is asked to consider the constitutional necessity for a jury trial for purposes of an Atkins*fn1 claim that is raised during collateral proceedings under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541-9546. In Atkins, broadly speaking, the U.S. Supreme Court held that the execution of mentally retarded persons convicted of capital crimes violated the Eighth and Fourteenth Amendments to the United States Constitution. Divining that there now appeared to be a consistent national consensus opposed to the execution of the mentally retarded, the Supreme Court believed that it was time to revisit its prior decision in Penry v. Lynaugh, 492 U.S. 302 (1989), which had held that the Eighth Amendment did not prohibit the execution of the mentally retarded. Id. at 314-16. The Court, however, left the determination of how to apply the ban on the execution of mentally retarded defendants to the individual states. Atkins, 536 U.S. at 317. In the absence of any Pennsylvania legislative pronouncement following Atkins, this Court was called upon to define mental retardation for purposes of Pennsylvania law and we answered this call in Commonwealth v. Miller, 888 A.2d 624 (Pa. 2005). In the case sub judice, this Court is asked to consider both an Atkins claim and an Atkins-related question. The derivative claim is strictly procedural: whether appellant Edward Bracey is entitled to have a jury entertain his post-conviction Atkins claim, raised under the Sixth and Fourteenth Amendments to the United States Constitution. See Ring v. Arizona, 536 U.S. 584 (2002). The PCRA court concluded that appellant's Atkins claim, which was impeded by counsel's inexplicable refusal to present evidence of mental retardation to the PCRA judge, was meritless, and that rendered his request for a jury trial moot. The court dismissed appellant's serial PCRA petition. For the reasons stated herein, we hold that the jury trial claim should have been reached but, on the merits, there is no federal constitutional right to a jury trial for Atkins claims presented in collateral proceedings. As will be explained, we vacate the PCRA court's order and remand for an evidentiary hearing and bench determination of appellant's Atkins claim.

On March 3, 1992, a jury found appellant guilty of the first-degree murder of Philadelphia police officer Daniel Boyle.*fn2 Following a penalty hearing, the jury found two aggravating circumstances -- that the victim was a police officer killed in the performance of his duties, 42 Pa.C.S. § 9711(d)(1), and that appellant had a significant history of felony convictions involving the use or threat of violence, 42 Pa.C.S. § 9711(d)(9). The jury found no mitigating circumstances, and, accordingly, set the penalty at death. See 42 Pa.C.S. § 9711(c)(1)(iv). This Court affirmed the judgment of sentence on July 21, 1995. Bracey, supra n.2.

On May 10, 1996, appellant filed a pro se PCRA petition and the PCRA court appointed the Center for Legal Education, Advocacy, and Defense Assistance ("CLEADA") to represent him. The PCRA court held a seven-day evidentiary hearing on appellant's claim that counsel was ineffective during the penalty phase of his trial for failing to adequately investigate and present evidence of his supposed organic brain damage or his mental illness. Following the hearing, the PCRA court denied relief. This Court affirmed the PCRA court's determination on appeal. Commonwealth v. Bracey, 795 A.2d 935 (Pa. 2001).

On August 15, 2002, appellant, through the Philadelphia Federal Community Defender, filed a second PCRA petition (also styled as a Petition for Habeas Corpus Relief under Article 1, Section 14 of the Pennsylvania Constitution), raising a claim that he was a mentally retarded individual who was ineligible for the death penalty under the then-recent Atkins decision. In his brief in support of the PCRA petition, appellant asserted that there was sufficient evidence of mental retardation presented at the 1998 PCRA hearing and in the supporting affidavits entered at the prior proceeding that would justify an evidentiary hearing on his Atkins claim. Appellant also asserted the right to a jury determination on his Atkins claim.

The Commonwealth disagreed, arguing, in relevant part,*fn3 that all three of appellant's experts agreed at the prior PCRA hearing that appellant was not mentally retarded and that his current claims were supported by nothing other than bald assertions. For this reason, the Commonwealth requested that the PCRA court dismiss the petition without an evidentiary hearing.

The PCRA court scheduled a three-day hearing on the Atkins claim for September 13-15, 2006. Appellant made no further mention of the jury issue until shortly before the scheduled Atkins hearing. On September 5, 2006, James Moreno, Esq., of the Federal Community Defender submitted a letter to the PCRA court, requesting that the hearing be cancelled in light of appellant's decision not to present any testimony. This letter was followed with a second letter, dated September 8, 2006, by Billy Nolas, Esq., also of the Federal Community Defender, explaining that defense counsel believed that under Ring, the appropriate factfinder for a collateral Atkins claim was a jury. The letter further stated that "proceeding to a final disposition by the court without a jury will be prejudicial to the [appellant]'s jury trial argument." See Letter, 9/8/2006, at 2. The letter declared that "in order not to prejudice Mr. Bracey's jury trial argument, we will not be presenting further evidence for the court itself. Instead, we will rely on the evidence of record." Id. The letter also asked that the court certify the jury trial issue immediately for appeal.

The court, obviously surprised by the defense request and assertions, ordered all parties to be present for the September 13th hearing. At the hearing, appellant continued to demand recognition of a constitutional right to a jury determination on the Atkins question on collateral review. Appellant's counsel acknowledged that no such right had been declared in Pennsylvania, and cited no controlling federal authority, but expressed the belief that appellant had to "st[an]d on that jury trial 6th Amendment right like other people," in order for the jury request to be preserved for future proceedings. N.T., 9/13/2006, at 14. Counsel also alleged a "fear" that "if we proceed to a court hearing in a case such as this, it would be either held against us in terms of the assertion of the 6th Amendment jury trial right, or it would be something that would be detrimental to the jury trial right." Id. at 5.

The Commonwealth argued that the issue was waived and that it was "too late" for appellant to change his position and request an Atkins jury at the last minute. Alternatively, the Commonwealth renewed its position that there was no prima facie case warranting an evidentiary hearing, stating "that the defense was actually given a gift even to get, with all due respect, but it was lucky for them to even be granted a hearing because there was no basis for it." For similar reasons, the Commonwealth asserted that it was inappropriate for the Atkins claim to go to a jury. Id. at 17-20.

In response to counsel's arguments, the court did not rule on the Commonwealth's assertion that the right to a jury issue was waived due to its last minute presentation; nor did it directly rule on the merits of the asserted "right" to a jury determination of an Atkins claim posed on collateral attack. Such a ruling clearly was implied, however, where the court stated:

This Court is in the field, in the trenches, if you will, like every other trial judge in the Commonwealth and to the extent precedent has already been established, this Court follows that precedent. At this point in time what I have before me, frankly, is not different from many other situations and that you ask for a trial by jury or that you ask for anything in here, whether it's that the defendant not be shackled in the courtroom, you ask it and I say no, your request is denied. You have not waived the issue because you actually preserved it by requesting it, same thing for a jury trial.

The issue here today is whether or not Mr. Bracey agrees with by knowingly, intelligently, and committedly . agrees with the decision to, quote, unquote, rest on the papers and forego an Atkins hearing, whereby there will be testimony presented for this Court without a jury to decide whether or not there is sufficient evidence to believe that it warrants this Court either using all the standards announced in Miller that he is mentally retarded, even that he's competent or not competent but mentally retarded such that it qualifies for him to be taken out of the realm of the imposition of the death penalty, nothing more.

Id. at 25-26 (emphasis added). Thereafter, the court conducted a colloquy with appellant in order to ensure that he was in agreement with his counsel's strategy to refuse to present mental retardation evidence at a non-jury Atkins hearing. See id. at 30-33. After further argument from both sides, the court then stated, "[t]he court will allow counsel to, quote, unquote, rest on the papers. I will consider everything that's been filed and issue a ruling in this matter." Id. at 33. Appellant did not renew his request that the trial court certify the jury trial question for immediate interlocutory review in this Court, nor did he seek interlocutory review directly in this Court, but instead awaited the determination of the Atkins question on the materials presented. On June 12, 2007, the court dismissed the PCRA petition and later filed an opinion in support of that order.

In the opinion, the court noted that it needed to determine whether it could properly consider the existing record evidence in support of the Atkins claim. The court pointed out that on October 17, 2006, appellant had filed a "Notice of New Supplement," referring to an unrelated Atkins case that was pending before a different Common Pleas Court Judge, wherein the Commonwealth allegedly sought a jury trial on the issue of mental retardation on collateral review. Appellant asserted that the Commonwealth's position in that case subjected it to a potential jury trial for every collateral Atkins claim the Philadelphia District Attorney's Office was subsequently involved in. The court disagreed.

Turning to the issue of appellant's reliance on evidence developed in the 1998 PCRA proceedings on mental health mitigation, the court considered this Court's decision in Miller, wherein we explained that a PCRA court could not simply rely on existing record evidence, offered for the distinct purpose of establishing organic brain damage, in ruling on an Atkins claim. Instead, in retroactive Atkins cases, the PCRA court must hold an evidentiary hearing on colorable Atkins claims, since evidence offered to establish organic brain damage, for a purpose other than to prove Atkins mental retardation, was of limited value in assessing an Atkins claim. Miller, 888 A.2d at 632-33; see also Commonwealth v. Mitchell, 839 A.2d 202, 210 (Pa. 2003) ("The issue of mental retardation was touched upon in passing, but it was not the focal point of the testimony of the witness, nor was it a central focus of either direct or cross-examination. It would be injudicious to reach a legal conclusion on the question of mental retardation based on the current record.").*fn4

Applying these cases to the matter at hand, the court correctly pointed out that Atkins did not exist at the time of appellant's first PCRA hearing, and the proffer at that hearing was inadequate for Atkins purposes: "The issue of any potential mental retardation was only briefly mentioned in the context of determining whether or not said brain damage or mental illness existed; it was not the specific issue being explored. As such, there was no adequate direct-examination, cross-examination or argument on the issue of mental retardation in the context of Atkins." PCRA Court Slip Op. at 12. Therefore, the court concluded that appellant's refusal to present any new and relevant evidence in support of his Atkins claim rendered it meritless and that fact, in turn, rendered the request for a jury trial moot. The court further noted that this Court's decision in Commonwealth v. Crawley, 924 A.2d 612 (Pa. 2007), suggested that the PCRA judge was the proper factfinder and decision-maker for Atkins determinations raised on collateral review.

We now review the PCRA court's Atkins determination as well as appellant's core assertion that he is entitled to a jury trial on the question of Atkins mental retardation on collateral attack, as well as his (or his counsel's) belief that he was entitled to dictate the nature and scope of the Atkins proceedings below, while he pursued his jury ...

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