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Commonwealth of Pennsylvania v. Manuel Marcus Sepulveda

November 28, 2012

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
MANUEL MARCUS SEPULVEDA, APPELLANT



Appeal From the Order entered on 10/11/2007 denying PCRA relief in the Court of Common Pleas of Monroe County, Criminal Division, at No. CP-45-: CR-0001522-2001

The opinion of the court was delivered by: Chief Justice CASTILLE*fn1

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

SUBMITTED: July 25, 2008

OPINION

This is a capital appeal from the order of the Court of Common Pleas of Monroe County denying appellant Manuel Marcus Sepulveda's petition for relief under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. For the reasons that follow, we remand for further, limited proceedings before the PCRA court.

A. BACKGROUND

The facts underlying appellant's sentences of death are discussed more fully in appellant's direct appeal, Commonwealth v. Sepulveda, 855 A.2d 783, 786-89 (Pa. 2004) (plurality), cert. denied, 546 U.S. 1169 (2006). However, in order to adequately review appellant's claims herein, some background is required.

The evidence adduced at trial and summarized in Sepulveda established that on November 26, 2001, appellant was at the home of Daniel Heleva and Robyn Otto in Polk Township, Monroe County, where he resided with the couple and their two children. At approximately 6:30 p.m., John Mendez and Ricardo Lopez arrived at the house to recover two guns that Mendez claimed belonged to him. Appellant retrieved the guns and gave them to Mendez. Mendez and Lopez then left.

Later that night, Heleva returned to the house with Richard Boyko and discovered that the guns were missing. Another man, Jimmy Frey, was sitting in the living room watching television. Appellant explained to Heleva what happened with the guns and Heleva instructed Boyko to call Mendez. Mendez and Lopez returned to the house, but Heleva did not initially permit Lopez to enter. Heleva and Mendez had words and the two men began fighting in the kitchen. The fight was resolved and Lopez and appellant joined Mendez and Heleva in the kitchen. Boyko left the house to run an errand for Robyn Otto. Robyn Otto was upstairs in the house with her two children.

As the four men were sitting around the kitchen table, another argument erupted, at which point appellant grabbed a .12 gauge shotgun and shot Mendez in the stomach. He then shot Lopez in the side. Lopez collapsed on the floor. Appellant then placed the gun on Lopez's back and fired, killing him. Mendez escaped from the kitchen and ran upstairs. Appellant then chased him upstairs where he shot him a second time. Mendez was able to exit the house and flee to a neighbor's house. Appellant and Heleva followed him, entered the neighbor's property, seized Mendez, and dragged him back to Heleva's house. Meanwhile, Frey, who had been watching the incident, hid the shotgun in a sofa. After the men dragged Mendez back to the house, appellant struck him with a hatchet type of weapon, killing him. There was no evidence that either victim had, or displayed, a firearm when appellant murdered them.

In the interim, police received a 911 call from Heleva's neighbor, reporting a domestic disturbance. When the police arrived at Heleva's home, appellant initially denied knowledge of the incident, but then said he was assaulted by two men. The police placed appellant in the back of a police car, handcuffed him, and asked him where the woman was, since they still believed it was a domestic disturbance. Appellant responded: "There is no she. They are in the basement. I shot them." Police found the dead bodies of Lopez and Mendez in the basement. The police found Lopez beneath slabs of insulation and dry wall material, with his pants pulled to his ankles. They found Mendez beneath a pile of laundry, stripped naked with his thumb in his mouth and with a rubber bungee cord wrapped tightly around his neck. See Sepulveda, 825 A.2d at 787, n.6.

Police brought appellant to the State Police Barracks in Lehighton, at which time appellant gave multiple statements. The statements were inconsistent. Appellant initially accepted responsibility for the killings, but in a written statement he admitted to shooting Lopez only one time, placing blame for the second shot on Heleva. Appellant also admitted to shooting Mendez, but again placed the blame for the blows to Mendez's head on Heleva. These statements will be discussed in more detail infra, as they are relevant to one of appellant's PCRA issues.

At trial, appellant took the stand and testified to a version of events that was mostly consistent with his written police statement, with two notable exceptions.*fn2

Appellant also presented evidence supporting the lesser offense of voluntary manslaughter, suggesting that he was acting in defense of Heleva and Heleva's children at the time of the killings.

After the close of the guilt phase of appellant's capital trial, a jury sitting before the Honorable Ronald E. Vican convicted appellant of two counts of first-degree murder for the shooting deaths of Ricardo Lopez and John Mendez.*fn3 Following a penalty hearing, the jury found one aggravating circumstance at each count, which it determined outweighed the two mitigating circumstances it found at each count, and returned two sentences of death.*fn4 See 42 Pa.C.S. § 9711(c)(1)(iv) ("[T]he verdict must be a sentence of death ... if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances."). This Court affirmed on direct appeal. Sepulveda, 855 A.2d at 794.

Appellant filed a pro se PCRA petition on August 9, 2006, and President Judge Vican appointed new counsel. This appointment was rescinded after the Philadelphia-based Federal Community Defender Office ("FCDO"), Capital Habeas Unit unilaterally entered its appearance.*fn5 Federal counsel then filed a lengthy amended petition, alleging numerous claims of trial court error and ineffective assistance of counsel. The PCRA court conducted an evidentiary hearing over four separate days. Following the hearing, the court denied relief. Appellant appealed to this Court.*fn6

We summarize appellant's prolix issues as follows: (1) whether counsel was ineffective in failing to investigate and present mental health evidence to support claims of diminished mental capacity, imperfect belief of defense of others, and mitigating evidence; (2) whether counsel was ineffective in failing to challenge the Commonwealth's peremptory challenges of potential jurors; (3) whether counsel was ineffective in failing to properly question potential jurors who were excused because they expressed doubts about imposing the death penalty; (4) whether counsel was ineffective in challenging appellant's inculpatory statements; (5) whether the jury was presented with materially false evidence by the Commonwealth and whether trial counsel was ineffective for failing to present an expert to dispute this evidence; (6) whether counsel was ineffective in failing to object to victim impact evidence; (7) whether error in the guilt phase jury instructions violated appellant's due process rights; (8) whether counsel had a conflict of interest; (9) whether appellant's rights were violated because no transcript exists of portions of his trial; and (10) whether the cumulative effect of the alleged errors warrants relief.*fn7

In reviewing the denial of PCRA relief, 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). To be entitled to PCRA relief, appellant must establish, by a preponderance of the evidence, that his conviction or sentence resulted from one or more of the enumerated errors in 42 Pa.C.S. § 9543(a)(2), his claims have not been previously litigated or waived, and "the failure to litigate the issue prior to or during trial . or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel." 42 Pa.C.S. § 9543(a)(3), (a)(4). An issue is previously litigated if "the highest appellate court in which [appellant] could have had review as a matter of right has ruled on the merits of the issue." 42 Pa.C.S. § 9544(a)(2). An issue is waived if appellant "could have raised it but failed to do so before trial, at trial, ... on appeal or in a prior state post conviction proceeding." 42 Pa.C.S. § 9544(b).

In order to obtain relief on a claim of ineffectiveness, a PCRA petitioner must satisfy the performance and prejudice test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). In Pennsylvania, we have applied the Strickland test by looking to three elements: the petitioner must establish that: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or failure to act; and (3) the petitioner suffered prejudice as a result of counsel's error such that there is a reasonable probability that the result of the proceeding would have been different absent such error. Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).

Additionally, we note, the Sixth Amendment right to counsel is recognized "not for its own sake," but because of the effect it has on the accused's right to a fair trial. See Lockhart v. Fretwell, 506 U.S. 364, 369 (1993); see also Strickland, 466 U.S. at 689. For these reasons, counsel is presumed to have rendered effective assistance. Finally, both the U.S. Supreme Court and this Court have made clear that a court is not required to analyze the elements of an ineffectiveness claim in any particular order of priority; instead, if a claim fails under any necessary element of the Strickland test, the court may proceed to that element first. Strickland, supra; Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998). Counsel cannot be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Jones, 912 A.2d 268, 278 (Pa. 2006).

We now address appellant's claims.

B. APPELLANT'S CLAIMS

1. INEFFECTIVE INVESTIGATION AND PRESENTATION OF MENTAL HEALTH EVIDENCE

Appellant first claims that he suffered from severe mental and emotional disorders, and that counsel was ineffective in failing to investigate and present evidence concerning his mental health issues at both phases of his trial. Appellant alleges that counsel should have spoken with people familiar with his childhood and obtained his background records. Appellant faults counsel for waiting until two weeks before trial to consult a mental health expert, and for not having any mental health expert personally examine him. Appellant further contends that counsel should have reviewed appellant's pre-trial prison records, as they would have indicated that he had mental health issues. Specifically, appellant contends that records from the Monroe County Correctional Facility of his pre-trial detention indicate that he requested mental health treatment and complained of trouble sleeping and hallucinations.*fn8

At the PCRA hearing, federal counsel produced numerous witnesses who testified concerning appellant's mental health, and concerning counsel's performance in developing mental health-related claims. The Commonwealth did not present any witnesses, but cross-examined appellant's witnesses.

Yolanda Maisonet, appellant's mother, Alex Sepulveda, appellant's cousin, and Juan Ramon Rivera, appellant's maternal uncle, testified that appellant grew up in a poorly maintained apartment building in a drug-infested and violent neighborhood in New York City. Maisonet and Rivera recounted that appellant's father was an alcoholic, who frequently gambled and physically abused both appellant's mother and appellant. When appellant was eight or nine years old, Maisonet moved with her children to Puerto Rico, to a neighborhood scarred by violence and illicit drugs. Maisonet testified that appellant had trouble concentrating on his school work, falling one class short of graduating from high school. On cross-examination, Maisonet stated that appellant corresponded with her prior to trial, but did not inform her that he was facing a potential death sentence. Nor did appellant ask for her assistance in his defense. On cross-examination, Rivera also testified that appellant never asked him to assist in his defense. Alex Sepulveda testified that mental illness and addiction ran in his family. Sepulveda testified that appellant never contacted him before trial, although Sepulveda was an attorney, and family members often sought his legal assistance. See N.T., 6/11/07, at 122-143; id. at 144-58; N.T., 6/12/07, at 6-22.

Robyn Otto was with appellant prior to and during the murders. At the PCRA hearing, Otto testified to appellant's habitual cocaine use, including on the night of the murders. See N.T., 6/11/07, at 12-15.

Heather Mirel testified at the PCRA hearing that appellant used crack cocaine on a daily basis. She said that appellant became agitated and paranoid when he used crack cocaine, and that his drug use cost him his job. However, Mirel related that appellant never became violent while using drugs. See N.T., 6/12/07, at 85-92.

Juan Pena, appellant's friend, testified that after living in Puerto Rico, appellant returned to New York and lived with his father, during which time appellant regularly smoked marijuana. After moving to Pennsylvania, appellant continued using marijuana and began to abuse crack cocaine. Pena said that appellant became paranoid while using crack cocaine. On cross-examination, Pena admitted that he never attempted to contact appellant or his counsel after the murders. See id. at 93-106.

Deanna Flowers testified that appellant became paranoid and delusional while on crack cocaine, but also stated that he was never violent. See id. at 112-20.

Federal counsel also produced testimony from a number of mental health experts at the PCRA hearing. Dr. Antonio Puente, a neuropsychologist, interviewed and performed neuropsychological testing on appellant. Dr. Puente also talked with Alex Sepulveda and reviewed records from appellant's childhood. Dr. Puente described how, in his opinion, appellant's upbringing impaired his brain development and academic and intellectual capacity. He concluded that appellant suffered neuropsychological deficits which impaired his ability to reason, solve problems, make judgments, premeditate, and deliberate. Looking back in time, Dr. Puente also opined that appellant suffered from extreme mental or emotional disturbance at the time of the murders, and that his ability to conform his conduct to the requirements of the law was substantially impaired. Dr. Puente testified that information regarding the domestic violence that appellant experienced, including that appellant's father hit the children, indicated that further psychiatric evaluation was appropriate. Likewise, he testified that appellant's school records, prison records, and information regarding the domestic violence appellant experienced were indicators of a need for further psychiatric evaluation. See id. at 29-65. However, on cross-examination, Dr. Puente also acknowledged that the information that trial counsel actually possessed regarding appellant's upbringing "would not have been enough to raise red flags." Id. at 75.

Dr. Pablo Stewart, a psychiatric consultant, conducted a forensic psychiatric examination of appellant, reviewed appellant's prison records, and met with appellant. Dr. Stewart also reviewed affidavits from, and met with, Maisonet, Rivera, and Rivera's wife. Dr. Stewart opined that appellant suffered from post-traumatic stress disorder (PTSD) caused by his troubled upbringing. Dr. Stewart noted that hypervigilance is a PTSD symptom; in his view, such a symptom would cause a PTSD sufferer to be more likely to react against perceived threats. Dr. Stewart also noted that PTSD includes "avoidance," a symptom he believed was reflected in appellant's case by his refusal to discuss the traumatic events in his life. Furthermore, Dr. Stewart opined that PTSD limited appellant's social and occupational development. Dr. Stewart admitted that appellant was not forthcoming, and that it was his training and experience in psychiatry that enabled him to notice appellant's indicia of PTSD. Dr. Stewart opined that the fact that a criminal defendant experienced a history of abuse, but did not want his family involved in his defense, was an indicator for PTSD. Dr. Stewart further diagnosed appellant with polysubstance dependence and substance-induced psychotic disorder, which manifests as auditory hallucinations, visual hallucinations, and paranoia. Dr. Stewart also opined that appellant suffered cognitive disorder not otherwise specified ("NOS"), also known as organic brain damage. Ultimately, Dr. Stewart opined that appellant suffered from extreme mental or emotional disturbance, and, looking backward, that "the combination of these conditions did, in fact, cloud his mind to the extent he was unable to deliberate and premeditate" and impaired his ability to form a specific intent to kill. See N.T., 6/11/07, at 85-86; see also id. at 36-97.

A third FCDO-secured mental health expert, Dr. Richard Dudley, a psychiatrist, met with appellant for a cumulative period of twenty hours, and reviewed records and affidavits from appellant's family. Dr. Dudley diagnosed appellant with chronic PTSD, cognitive disorder NOS, polysubstance abuse, and cocaine-induced psychotic disorder. Dr. Dudley opined that appellant suffered from avoidance and hypervigilance, as well as extreme mental or emotional disturbance. Looking backward, Dr. Dudley concluded that appellant lacked the ability to deliberate or premeditate on the night of the murder. See N.T., 6/13/07, at 5-43, 54.

Dr. Eric Fine, a psychiatrist, testified that trial counsel had consulted him immediately prior to appellant's trial to render an opinion regarding appellant's state of mind at the time of the offense. Dr. Fine saw counsel's request as "being a very specific request for information regarding the effect of cocaine. It was not requested that I evaluate [appellant] in terms of his past medical and psychiatric history and everything else that would have gone into a comprehensive psychiatric evaluation." N.T., 6/11/07, at 109. Dr. Fine testified that he believed that an in-person evaluation was unnecessary. He concluded that, "while [appellant] might have had impairment of judgment, and possibly some degree of confusion, the material reviewed does not support a conclusion, within a reasonable degree of medical certainty, that he would have been unable to form the specific intent to kill the victims." Dr. Fine noted that it would have been helpful for him to review additional materials, and appellant's pre-trial prison records could have indicated whether appellant was then displaying psychotic symptoms. See id. at 115-19.

Trial counsel's paralegal testified that she interviewed appellant before trial and asked him for information regarding his upbringing. The paralegal drafted a memorandum for counsel dated November 4, 2002, recounting her October 30, 2002 meeting with appellant. At that time, appellant provided the paralegal with general background information related to when and where he was born, where he resided, and his schooling.*fn9 The paralegal recalled that appellant was forthcoming with the information, but she also noted that appellant was "adamant" that counsel not contact his mother. See N.T., 6/12/07, at 132-36.

Finally, appellant's trial counsel testified, noting that he was appointed to represent appellant eight months before trial. Appellant informed counsel that his father was abusive, but counsel did not consider this fact to be mitigating evidence because appellant never indicated that he (appellant) had been abused. Counsel further testified that he would have contacted appellant's family, but appellant instructed him not to do so. See N.T., 3/7/07, at 18-21. Indeed, counsel observed that appellant had specifically asked him not to contact his family and refused to facilitate such contact:

[H]e wanted to keep his family out of court, out of the situation. He would not provide me with any information as to where I could locate his family or otherwise obtain background records. I asked [him] on more than one occasion to provide me with . names and addresses of family. I wanted family here. He didn't want them involved.

Id. at 18.

a. Guilt Phase Mental Health Evidence

Appellant claims that counsel's alleged deficient investigation and presentation of mental health evidence damaged his guilt-phase case in two distinct respects. First, appellant contends that counsel was ineffective in failing to present evidence of his cocaine-induced psychosis,*fn10 as well as his mental health and emotional impairments, including PTSD and hypervigilance, arguing that these factors impaired his judgment and would have provided further support for the imperfect belief of defense of others theory that counsel argued to the jury.*fn11 In the alternative, appellant argues that counsel was ineffective for failing to present a diminished capacity defense to the jury.

The Commonwealth argues that appellant admitted guilt, and at trial did not display signs of suffering from any mental health problems. The Commonwealth further contends that counsel's strategic decision to argue imperfect belief of defense of others, instead of a diminished capacity defense, was reasonable.

The PCRA court rejected appellant's guilt phase, mental health-based claims of counsel ineffectiveness. The court found that appellant had not presented sufficient evidence to establish that he was so overwhelmed by the effects of cocaine that he was incapable of forming the specific intent to kill. Moreover, the court reasoned that counsel had a reasonable basis for not developing and presenting evidence related to appellant's drug use, as such evidence "could easily have prejudiced the jury against [appellant], portraying him as a drug dealer and addict who was living and conducting business in a known crack house." PCRA Court Opinion, 10/11/07, at 25. The court also found that counsel had a reasonable basis for asserting imperfect belief of defense of others instead of diminished capacity. The court noted that appellant did not inform counsel about his mental health problems, nor did he demonstrate outward signs of diminished capacity or mental defects. In addition, appellant's initial prison classification form recorded no signs of hallucinations, depression, suicidal tendencies, or any other mental health condition. Thus, the PCRA court determined that counsel had no reason to believe appellant suffered from mental health problems.

Regarding appellant's pre-trial prison records, the court determined that the records contained no "red flags," and suggested that appellant's reported symptoms could be attributed to his guilt. The PCRA court also opined that, "the symptoms reported by [appellant] are the type of symptoms . consistent with long-term confinement, especially for [someone] facing the death penalty." Id. at 27. Thus, the court concluded that, even if counsel had obtained these records pre-trial, they would not have given counsel cause to further investigate appellant's mental health to either support the diminished capacity defense not pursued, or to bolster the imperfect belief of defense of others theory that was pursued.

As in many capital cases, the task facing trial counsel here was daunting. The case involved the murder of two unarmed men. Each victim, moreover, suffered multiple wounds: appellant shot Lopez twice; he shot Mendez twice and then hatcheted him to death. Furthermore, the killing of Mendez involved time, coordination, and complexity: after killing Lopez, appellant and his co-defendant chased Mendez down to a neighbor's house and brought him back to finish him off, in a particularly gruesome manner. In addition, the victim's bodies were quickly moved to and hidden in Heleva's basement, and time was taken to pose their corpses in positions of humiliation. Appellant had the awareness and presence of mind to confess to the murders immediately after police arrived; although appellant did not act entirely alone, there was no question of identity. These facts made the prospect of any successful defense against first-degree murder extremely challenging. Strategic choices made by trial counsel must be viewed in light of these limiting facts. As in all matters where counsel's ineffectiveness is being raised, this Court must be careful to assess trial counsel's performance without the distortion of hindsight, and must instead review the circumstances under which counsel's decisions were made. Commonwealth v. Birdsong, 24 A.3d 319, 333 (Pa. 2011).

With the above in mind, we first address appellant's claim that counsel was ineffective for not presenting a diminished capacity defense. A diminished capacity defense "does not exculpate the defendant from criminal liability entirely, but negates the element of specific intent." Commonwealth v. Hutchinson, 25 A.3d 277, 312 (Pa. 2011). Thus, if the jury accepts a diminished capacity defense, a charge of first-degree murder is mitigated to third-degree murder. To establish diminished capacity, a defendant must prove that his cognitive abilities of deliberation and premeditation were so compromised, by mental defect or voluntary intoxication, that he was unable to formulate the specific intent to kill. The mere fact of intoxication does not give rise to a diminished capacity defense. Likewise, evidence that the defendant lacked the ability to control his actions or acted impulsively is irrelevant to specific intent to kill, and thus is not admissible to support a diminished capacity defense. Id.

Here, the PCRA court determined that counsel was not ineffective in presenting an imperfect belief of defense of others claim; had counsel succeeded, the PCRA court reasoned, appellant would have been convicted of no more than voluntary manslaughter, which is a more positive outcome than a finding of guilt of third-degree murder via diminished capacity. This point is true enough, but it is not entirely responsive. The PCRA court's analysis fails to account for the fact that counsel did not consider the possibility of presenting a diminished capacity defense because he was not aware that there may have been relevant mental health evidence to support such a theory; if he had, a strategic choice might then have been made which would factor in, not only the fact that a manslaughter verdict is better than a third-degree murder verdict, but also, the relative strengths of the two defenses, if both were viable. Thus, we cannot simply conclude that counsel's decision to pursue an imperfect belief of defense of others theory alone operates as a reasonable explanation for not considering and pursuing a diminished capacity defense.*fn12

Instead, we find that the claim fails for different reasons. As we will address at further length in deciding the penalty phase aspect of this claim, we do not doubt that trial counsel could have uncovered some mental health evidence if he had conducted a more thorough pre-trial investigation. Nevertheless, even assuming that counsel could have discovered and developed some degree of opinion testimony along the lines of that offered by the multiple and overlapping experts hired by federal counsel, appellant has not proven that counsel was ineffective.

Although federal counsel secured experts to offer opinions on the matter to the contrary, as a practical matter, the notion that a diminished capacity defense might succeed with a jury, in the face of the circumstances of the murders here -- including chasing the second victim down and bringing him back to the crime scene to finish him off, hiding and humiliating the corpses, speaking to police -- relatively far-fetched. Moreover, the expert opinions below primarily focused on PTSD and hypervigilance, with the experts claiming that appellant lacked the ability to control his actions or that he acted impulsively. See, e.g., Testimony of Dr. Stewart discussed supra (indicating that a PTSD sufferer would be more likely to react against perceived threats). It is not clear whether such mental health opinion evidence would have been admissible to support a diminished capacity defense or, if admissible, would have been particularly strong or helpful. We have stressed the limited nature of a diminished capacity defense; at best, appellant's proffer strains the outer bounds of evidence that would be admissible to support the defense.

Second, even accepting that appellant's expert mental health evidence could tend to demonstrate more than mere lack of control or impulsivity, a diminished capacity defense would have been inconsistent with appellant's sworn trial testimony. As explained previously, in his final statement to police and at trial, appellant attempted to shift the blame for the fatal blows onto Daniel Heleva. In order to forward a successful diminished capacity defense, appellant would have had to concede his guilt to third-degree murder. Forwarding a diminished capacity defense would have been inconsistent with appellant's written statement to the police, as well as his trial testimony.

In this case, given appellant's existing accounts of his actions, the physical evidence, and the weakness of the now-proffered evidence as support for diminished capacity, we conclude that appellant has failed to prove that counsel was ineffective for not pursuing a diminished capacity defense.

Next, we consider appellant's claim that counsel should have presented expert testimony related to appellant's supposed cocaine-induced psychosis, PTSD and impaired judgment in support of the imperfect belief of defense of others theory that counsel actually pursued. Given the factual circumstances facing counsel, we are not under the illusion that the theory of defense chosen by counsel, however presented --i.e., as counsel presented it, or as appellant now says it should have been supplemented -- was particularly strong; but those overriding circumstances were a function of appellant's conduct and the proof against him. Only those who are naive concerning the realities of criminal trials succumb to the notion that all crimes present colorable or promising defenses. Trial counsel's pursuit of an imperfect belief of defense of others claim was understandable given the facts and circumstances surrounding the crimes, and the obvious unavailability of more plausible defenses. Weak as it may have been, counsel pursued the defense, appellant testified consistently with it, and the trial court was ultimately persuaded that jury instructions were warranted on mistaken belief voluntary manslaughter. It is well-settled that the mere fact that a strategy proved unsuccessful does not render it unreasonable. Commonwealth v. Spotz, 896 A.2d 1191, 1235 (Pa. 2006).

To prevail on a justification defense, there must be evidence that the defendant "(a) . reasonably believed that he was in imminent danger of death or serious bodily injury and that it was necessary to use deadly force against the victim to prevent such harm; (b) that the defendant was free from fault in provoking the difficulty which culminated in the slaying; and (c) that the [defendant] did not violate any duty to retreat." Commonwealth v. Samuel, 590 A.2d 1245, 1247-48 (Pa. 1991); see 18 Pa.C.S. § 505; see also Commonwealth v. Harris, 703 A.2d 441, 449 (Pa. 1997). "The Commonwealth sustains its burden [of disproving self-defense] if it proves any of the following: that the slayer was not free from fault in provoking or continuing the difficulty which resulted in the slaying; that the slayer did not reasonably believe that [he] was in imminent danger of death or great bodily harm, and that it was necessary to kill in order to save [him]self therefrom; or that the slayer violated a duty to retreat or avoid the danger." Commonwealth v. Burns, 416 A.2d 506, 507 (Pa. 1980).*fn13

The derivative and lesser defense of imperfect belief self-defense "'is imperfect in only one respect - an unreasonable rather than a reasonable belief that deadly force was required to save the actor's life. All other principles of justification under 18 Pa.C.S. § 505 must [be satisfied to prove] unreasonable belief voluntary manslaughter.'" Bracey, 795 A.2d at 947 (quoting Commonwealth v. Tilley, 595 A.2d 575, 582 (Pa. 1991)). Thus, for example, if the defendant was not free from fault, neither self-defense nor imperfect self-defense is a viable defense.

Briefly addressing the cocaine-induced psychosis aspect of appellant's claim, we note that counsel contacted Dr. Fine at the time of trial, asking whether he could provide testimony related to the effects of cocaine. At the PCRA proceedings, Dr. Fine testified that based upon the material he reviewed at the time of trial, he did not believe that appellant would have been unable to form the specific intent to kill the victims. Thus, trial counsel in fact pursued this line of investigation at the time of trial, but ultimately found it unfruitful. There was nothing unreasonable in this decision; hence, this aspect of appellant's current ineffectiveness claim fails.

Appellant's proffer is premised upon counsel's failure to investigate and uncover mental health evidence to support appellant's imperfect belief of defense of others theory. The main thrust of appellant's current argument is that such evidence would have bolstered his position at trial that he honestly, but unreasonably, believed that deadly force was necessary to protect Heleva and Heleva's children. According to appellant, information in prison records not secured by trial counsel, if reviewed, would have led counsel to seek further information regarding appellant's mental health, and that information in turn would have led to testimony similar to that presented at the PCRA proceedings. Appellant then posits that this mental health information would have corroborated the defense theory that appellant genuinely, but unreasonably, believed that deadly force was necessary to protect others when he shot Lopez twice; then shot Mendez, chased him through the house and shot him a second time, tracked him down at a neighbor's house, brought him back, and hacked him to death; then hid the bodies after displaying them in humiliating poses.

Decisional law supports that expert testimony may be admissible to establish the defendant's subjective state of mind -- whether the defendant had an "honest, bona fide belief that he was in imminent danger" -- for purposes of presenting a theory of self-defense. See, e.g., Commonwealth v. Light, 326 A.2d 288, 292 (Pa. 1974). However, a defendant's subjective state of mind does not establish the objective factor of the reasonableness of his belief, i.e., the belief of the need to defend oneself (or others) that he genuinely held must be reasonable in light of the facts as they appeared. Id.

The Superior Court explained the interplay between expert testimony and mistaken belief voluntary manslaughter in Commonwealth v. Sheppard, 648 A.2d 563 (Pa. Super. 1994), appeal denied, 655 A.2d 987 (Pa. 1995). In Sheppard, the appellant argued that trial counsel was ineffective for failing to object to the trial court's exclusion of psychiatric testimony as to his impaired mental functioning, based on paranoid ideation and his heavy use of alcohol, in order to establish, among other defenses, imperfect belief self-defense. In essence, the appellant's theory was that a diagnosis of paranoid personality in conjunction with his heavy use of alcohol made him not guilty of any charge of homicide greater than voluntary manslaughter based on the manner in which the mental defect affected his perception of the events surrounding the crime.

The panel first explained that an imperfect self-defense voluntary manslaughter theory has two components: the defendant's subjectively-held belief of danger posed by the victim, as to which expert testimony was admissible, and the objective measurement of that belief, i.e., the reasonableness of that held belief, as to which expert testimony was inadmissible. Id. at 568; see also Light, 326 A.2d at 292; Commonwealth v. Pitts, 740 A.2d 726, 733-34 (Pa. Super. 1999) (evidence of PTSD is relevant and probative to appellee's state of mind on issue of self-defense).

The Sheppard Court stressed that a viable claim of imperfect self-defense voluntary manslaughter cannot be based solely on the subjective state of mind of the defendant. "It is not the appellant who determines what is a reasonable belief. There must be some standard by which it is measured." Id. at 569. The Sheppard panel further explained that Section 2503(b) did not contemplate diagnosed mental disorders as a shield for a defendant when an imperfect self-defense theory is pursued, "but rather speaks to a misperception of the factual circumstances surrounding the event." Id. at 569. The panel indicated that the appellant's theory sought to extend imperfect self-defense beyond its intended purpose and "would open the flood gates to imperfect self-defense claims based entirely on a subjective state of mind when the objective component is not present." Id.

Appellant's argument in this case is similar to the argument rejected by the Superior Court in Sheppard. Appellant appears to believe that his alleged mental defects can justify his actions in killing two people regardless of an objective assessment of the facts and circumstances surrounding the murders. Notably, current counsel entirely ignore the facts and circumstances surrounding the murders, concentrating solely on trial counsel's failure to present mental health evidence to bolster appellant's alleged "honest" belief that Heleva and Heleva's children were in danger unless he killed Lopez and Mendez.

We have no doubt that expert mental health testimony would have been admissible and relevant to the imperfect defense of others defense that the trial court determined was adequately supported by the facts so as to allow counsel to pursue the defense. However, appellant has not shown that the addition of such testimony, concerning one of the two central aspects of a claim of imperfect belief of defense of others, creates a reasonable probability that the jury would have returned verdicts of involuntary manslaughter. As we noted at the outset, this defense was not particularly strong or plausible, for reasons having to do with circumstances other than appellant's supposed mental state. Appellant shot two unarmed men, who were doing no more than throwing punches at Heleva. By appellant's own testimony, the victims were "beating up" Heleva and he "just got scared and grabbed the shotgun" and fired two shots. N.T., 11/21/2002, at 634. Furthermore, the facts also demonstrated that Heleva's children were upstairs at the time of the incident, while the initial altercation -- into which appellant introduced the firearm -- was occurring downstairs. Most damning is the fact that appellant and Heleva chased down and dragged the wounded Mendez back to the house before killing him with a hatchet; any self-defense-related claim as to Mendez was clearly doomed by this fact. Certainly, at the time appellant and Heleva chased down Mendez, any belief that others were in imminent danger was objectively unreasonable. Moreover, appellant's entire course of conduct suggested that he was not free from fault in continuing, and indeed escalating, the difficulty. Under such circumstances, we conclude that appellant has not demonstrated a reasonable probability that, if only counsel would have introduced supporting expert testimony on the subjective half of his imperfect defense of others claim, the jury would have credited that his perceptions, if genuinely held, were objectively reasonable. See Light, supra.*fn14

Accordingly, appellant has failed to establish that trial counsel was ineffective for failing to proffer mental health evidence in support of his imperfect belief of defense of others claim.

b. Penalty Phase Mental Health Mitigation Evidence

The next argument is similar to the one advanced for purposes of guilt phase proceedings, but pertains to the investigation and presentation of mitigation evidence during the penalty phase of appellant's trial.*fn15 Appellant alleges that the mental health evidence he produced on collateral attack could have established the catch-all mitigator,*fn16 the extreme mental or emotional disturbance mitigator,*fn17 and the defendant's inability to conform his conduct to the law mitigator.*fn18 Appellant claims that, at the very least, counsel should have had Dr. Fine testify as a mitigation witness.

The Commonwealth fails to develop a helpful responsive argument on this issue. In explaining its denial of the claim, the PCRA court noted that counsel provided Dr. Fine with all relevant information available to him. Dr. Fine then informed counsel that appellant's use of cocaine could not be shown to have caused cocaine delirium or cocaine-induced psychotic disorder at the time of the murders. The court found that the only records counsel failed to review were the pre-trial prison records, but counsel was not ineffective in failing to review these records as they did not contain any "red flags" indicative of mental illness. The PCRA court further found that counsel could not be faulted for not investigating appellant's background, as appellant indicated that he did not want his family to be contacted and refused to provide contact information. Further, the court determined that counsel had no reason to investigate appellant's mental health because appellant did not display any symptoms of mental illness before or during trial. Accordingly, the court determined that counsel had a reasonable basis for not conducting additional investigation into appellant's mental health status and background.

In challenging these findings, appellant relies on Williams v. Taylor, 529 U.S. 362 (2000), and Wiggins v. Smith, 539 U.S. 510 (2003), wherein the U.S. Supreme Court generally recognized that capital counsel has an obligation to thoroughly investigate and prepare mental health and other mitigating evidence, Williams, 529 U.S. at 396; counsel cannot meet this requirement by relying on "only rudimentary knowledge of [the defendant's] history from a narrow set of sources." Wiggins, 539 U.S. at 524. This Court has noted:

Under prevailing constitutional norms as explicated by the United States Supreme Court, capital counsel has an obligation to pursue all reasonable avenues for developing mitigating evidence. Counsel must conduct a thorough pre-trial investigation, or make reasonable decisions rendering particular investigations unnecessary. Strategic choices made following a less than complete investigation are reasonable precisely to the extent that reasonable professional judgment supports the limitation of the investigation. In undertaking the necessary assessment, courts are to make all ...


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