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Commonwealth of Pennsylvania v. Jose Dejesus

December 14, 2012

COMMONWEALTH OF PENNSYLVANIA, APPELLANT JOSE DEJESUS, APPELLEE COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
JOSE DEJESUS, APPELLANT



Appeal from the Order of the Court of Common Pleas of Philadelphia County, dated August 10, 2007, at CP-51-CR-1103501-1997.

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

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

SUBMITTED: June 30, 2010

OPINION

These are cross-appeals in a capital matter from the Order of the Court of Common Pleas of Philadelphia County granting partial relief under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546.*fn1 The Commonwealth appeals the PCRA court's order insofar as it grants relief on Jose DeJesus's claim that he is ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002), because he is mentally retarded. DeJesus cross-appeals the PCRA court's concurrent denial of his various other PCRA claims.*fn2 For the following reasons, we find that the PCRA court erred in denying the Commonwealth's motion to reopen, and accordingly, we vacate the PCRA court's decision and accompanying order of August 10, 2007, which found appellee mentally retarded and vacated his death sentences, but otherwise denied relief. This matter is remanded for further Atkins proceedings consistent with this Opinion.

I. FACTS & PROCEDURAL BACKGROUND

The convictions underlying this appeal arose from appellee's active role as coconspirator and shooter in the May 30, 1997 murders of Felix Vargas and Elizabeth Carrasquilla,*fn3 who was pregnant at the time, as well as the shooting of two other bystanders who survived. The assaults occurred at about 11:00 p.m. at the intersection of Franklin and Indiana Streets in North Philadelphia and were carried out by means of AK-47 assault rifles. Vargas, a drug dealer, was pronounced dead at the scene from multiple gunshot wounds to the head, neck, and chest that he suffered while sitting in his car. Carrasquilla, who was speaking with Vargas through Vargas's car window at the time she was shot, died a short time later from at least one gunshot wound to her back.

The Commonwealth established at trial that appellee participated in a meeting earlier that day with several co-defendants, all of whom were involved in a drug dealing organization led by co-defendant Elias Pagan, a rival of Vargas. The meeting entailed a discussion of killing Vargas, who had recently shot one of Pagan's dealers, Carlos Robelos. Robelos vowed to kill Vargas in revenge, and Pagan told Robelos that he would pay Robelos for killing Vargas. Robelos then enlisted appellee to help him kill Vargas. Shortly thereafter, when reports came that Vargas was in the area, Pagan provided appellee and Robelos with AK-47 rifles, pistols, and ski masks to wear during the attack. After the murders, appellee and Robelos each received $2,500 from Pagan.

Appellee was not apprehended until nearly four months later on September 23, 1997; during the intervening months, he committed two additional murders, for which he later received death sentences. *fn4 He also evaded police officers who tried to apprehend him by car and on foot after spotting him in a car stopped at an intersection in Philadelphia on September 2, 1997.

Pertinent to this appeal, in July 1998, prior to appellee's trial for the murders in this case, the trial court ordered a pre-sentencing mental health evaluation of appellee in connection with one of his other murder convictions (the June 1997 killing described in footnote 4). This evaluation was conducted by psychologist Albert Levitt. Dr. Levitt's original handwritten notes include the phrase "mental retard mild." Dr. Levitt, Handwritten Notes, 7/10/98, at 1. Dr. Levitt's final report did not indicate retardation. Instead, the report summarized appellee's youth and background, including appellee's recollections that he began smoking marijuana daily when he was 14 years old and using cocaine and PCP regularly at 16 years old. Appellee recalled being in juvenile facilities during his teenage years, which Dr. Levitt supplemented with information that appellee's first experience with the juvenile system occurred in 1991, when appellee, who was born in April 1979, would have been approximately 12 years old; he was placed on probation for simple and aggravated assault. Appellee also committed simple and aggravated assault in 1994 and was adjudicated delinquent in 1996 for carrying a firearm. Appellee was then placed in the "Vision Quest" program (which will be further discussed infra). Dr. Levitt's report stated that appellee had poor judgment, auditory hallucinations, "paranoid and morbid thought processes," and "inappropriate assumptions." Dr. Levitt's psychological assessment was of poly-substance abuse, with a secondary diagnosis of "schizotypal personality with aggressive anti-social tendencies." Dr. Levitt concluded that appellee did not suffer from major mental illness and that despite appellee's "poor emotional condition and background," he was "capable of understanding a sentencing procedure." Dr. Levitt Report, 7/30/98, at 1-3.

On August 5, 1999, a jury sitting in the Court of Common Pleas of Philadelphia County convicted appellee of two counts of first-degree murder for the killings of Vargas and Carrasquilla, along with various lesser charges. After the penalty phase, the same jury found four aggravating circumstances and no mitigating circumstances, and imposed death sentences on both murder charges. The aggravators were that appellee was paid by another person for killing Vargas, knowingly created a grave risk of death to another person in addition to the victim, had a significant history of violent felony convictions, and had been convicted of another murder.*fn5 The trial court formally imposed the death sentence on August 17, 1999.

On direct appeal, this Court unanimously affirmed appellee's convictions and death sentence. Commonwealth v. DeJesus, 787 A.2d 394 (Pa. 2001), cert. denied, DeJesus v. Pennsylvania, 537 U.S. 1028 (2002). In March 2003, appellee filed a pro se PCRA petition and counsel was subsequently appointed. But, on January 27, 2004, the Federal Community Defender Office for the Eastern District of Pennsylvania ("FCDO"), entered an appearance for appellee as "pro bono counsel."*fn6 The FCDO filed a lengthy amended PCRA petition on June 9, 2004, alleging numerous instances of ineffective assistance of counsel, trial court error, and challenges to the constitutionality of appellee's death sentence. These challenges were both general (for instance, a claim that Pennsylvania's methods and procedures in conducting executions violate the U.S. and Pennsylvania Constitutions) and specific, particularly the claim that, under Atkins, appellee is mentally retarded and therefore is retroactively ineligible for the death penalty.

Hearings on appellee's Atkins claim were held over 12 days from October 2006 through January 2007 before the Honorable Jane Cutler Greenspan. Appellee presented a multitude of witnesses: mental health experts, family members, childhood acquaintances, and school teachers and counselors. The mental health experts testified to various aspects of mental retardation and their opinions that appellee fit the clinical criteria for the condition. Dr. Antonio Puente, a psychologist, opined that appellee fell "smack in the middle of the mild mental retardation range" within both the AAMR*fn7 and DSM-IV*fn8 standards, and that it would be "difficult to fake" his performance on IQ tests. Dr. Puente also believed that appellee's mental deficits most likely manifested before he turned eighteen. On cross-examination, the prosecutor contrasted the potential effects of appellee's teenage drug use when compared with his earlier school records, which indicated intelligence and natural leadership; the prosecutor also noted the absence of any suggestion of mental retardation in appellee's post-incarceration pre-Atkins records and evaluation reports, such as the pre-sentence report from 1999 in this case. Dr. Puente conceded that drug use may have "played a role" in appellee's academic decline and that it was difficult to reconcile appellee's positive early school achievements, particularly in math, where he tested in the ninetieth percentile three times, with a diagnosis of mental retardation. N.T., Atkins Hearing, 10/23/06, at 49, 51, 77, 79, 131, 149-56, 171, 176, 189-98, & 205-14.

Gerald Cooke, Ph.D., also a psychologist, opined that appellee was mentally retarded, with an overall IQ of 61 and intellectual and adaptive deficits that would have manifested before he turned 18. Although Dr. Cooke understood that someone could "fake an IQ test," he believed that appellee "was exerting effort, that he was trying to do well" and that the distribution of appellee's responses (he did relatively well on easier questions and worse on more difficult questions) suggested that appellee was not "faking mental retardation." Dr. Cooke added that the Slosson Intelligence test, which appellee took in 1991, 1994, and 1996 (coinciding with his experiences in the juvenile system), and on which he received scores of 84, 109, and 99, above the range of mental retardation, was no longer viewed as a valid IQ indicator. Dr. Cooke stated that from his experience in the juvenile and criminal justice systems, he believed that less intelligent individuals were often recruited for menial positions within organized drug groups, such as "mules," "enforcers," or low-level sellers. Dr. Cooke opined that appellee's level of intelligence, competence, and lack of self-direction was consistent with that type of activity. N.T., Atkins Hearing, 10/25/06, at 13, 20, 32-41, 47-55, & 104-05.

Dr. Cooke appeared surprised to learn that in another criminal matter, appellee purportedly testified falsely to crimes in an effort to "take the rap" for a friend, German Cruz. According to Dr. Cooke, appellee's low level of mental "sophistication" seemed inconsistent with the sort of purposeful deception and strategy required to fabricate testimony of a crime committed by another person. Nevertheless, Dr. Cooke felt that appellee's current testing results indicated that "basically, [appellee] is now a 27-year-old adult reading and doing arithmetic at the level of a third to fourth grader" and that he was not "malingering" when tested. Dr. Cooke did not assign much value to appellee's positive evaluations from "Vision Quest," an alternative juvenile residential program.*fn9

Dr. Cooke related that he had often heard that Vision Quest inflated reports and results and even provided answers to make the program appear more effective than it was. On cross-examination, Dr. Cooke conceded that appellee knew why he was being evaluated and that the results could affect his efforts to overturn his death sentence: "Well, on the face of it, you would think somebody would want to do badly under those circumstances, but that is not what I saw." Dr. Cooke acknowledged that nothing in the pre-incarceration evidence on appellee suggested an IQ below 70 and also that prior to Atkins, only one notation had been made that appellee might suffer from mental retardation (Dr. Levitt's 1998 handwritten note mentioned above). Dr. Cooke expressed skepticism that appellee's purportedly false testimony in the German Cruz case revealed significant intelligence; he was similarly ambivalent with regard to statements appellee evidently made about being able to independently acquire plane tickets and travel to and from Puerto Rico. N.T., Atkins Hearing, 10/25/06, at 113-15, 118, 138-39, 157-58, 168, 237-38, 250-51, 296-99, & 310.

Dr. John Gregory Olley, another psychologist, testified next, opining that appellee was mentally retarded and had been manifestly so prior to the age of 18. Dr. Olley focused on appellee's adaptive behavior, which refers to judgment, self-control, communications with others, and problem-solving. Dr. Olley testified that a background of poverty may be a factor leading to mental retardation or other developmental delays, due in part to poor nutrition, medical care, and educational screening and opportunities. On cross-examination, Dr. Olley opined that the simpler aspects of appellee's allegedly false testimony in the Cruz case could be managed by a mentally retarded person, but that other aspects of the testimony, such as recall and retelling of the details of drug trading and the actual crimes, might not be consistent with mental retardation. Dr. Olley also conceded that appellee's early teenage drug use could have been a factor leading to his increased criminal activity and his decline at school. Dr. Olley believed that appellee was "trying his best to answer my questions within his ability," but admitted that appellee had an incentive to do poorly on an Atkins evaluation. N.T., Atkins Hearing, 10/26/06, at 7-8, 10, 77-83, 172-96, 200-01, & 250-57.

Dr. William Russell, another psychologist, testified that the Slosson tests, which appellee took three times between 1991 and 1996 with scores well above the range for mental retardation, were no longer viewed as credible by the mental health profession. Dr. Russell added that a spread of over 20 points, like appellee's, suggested that some problem occurred with either the administration of the prior tests or the calculation of the results. Dr. Russell added that in his general experience with the juvenile system, where appellee may have taken those tests, counselors were often overwhelmed by the volume of evaluations, which could have affected accuracy. Moreover, Dr. Russell stated that to the extent Slosson results may still be viewed as effective, they are seen as likely to overstate a subject's IQ. N.T., Atkins Hearing, 10/30/06, at 129-40, & 173.

Appellee next called Dr. Najma Davis, a clinical therapist and social worker who had worked for the FCDO and its affiliates for twenty years between 1978 and 1998, to contest appellee's success in Vision Quest. Dr. Davis testified that Vision Quest was viewed as a positive program in an outdoor rural setting that focused on discipline, life skills, cooperation with others, and behavior modification. In Dr. Davis's opinion, one of Vision Quest's weaknesses was the failure to provide consistent therapy and education along with its activities and programs. Dr. Davis believed that participants' improvements "on paper" at Vision Quest were often exaggerated and did not comport with what she observed when participants returned to the juvenile or school systems. In Dr. Davis's view, "it appeared that the [Vision Quest] reports had been inflated" because the returning youths "typically . . . were functioning under grade level." N.T., Atkins Hearing, 10/31/06, at 6-10, & 12.

Dr. Paul Delfin, a clinical psychologist, testified that tests seeking to determine whether a subject is malingering have not yet been reliably developed, but, in his view, because appellee succeeded at easier questions and struggled on harder questions, malingering was not evident, and the results indicating mental retardation more likely represented "either mild mental retardation or a cognitive disorder." Dr. Delfin echoed Dr. Russell's view that the Slosson test is unreliable and tends to return inflated IQ scores. Dr. Delfin did not necessarily believe that appellee's false testimony in the German Cruz matter was inconsistent with mild mental retardation and speculated that it could have been the result of good "coaching." On cross-examination, Dr. Delfin testified that while appellee's early positive school results may have been consistent, they were not necessarily accurate or reliable and that appellee's subsequent academic decline was likely because he had reached the upper level of his intellectual capacity. N.T., Atkins Hearing, 10/31/06, at 43-45, 67, 99, 114, & 117-20.

Appellee also called various lay witnesses from his past schools. His first-grade teacher at the Laura W. Waring School ("Waring"), Grace Bullock, said that she had thought appellee was mentally retarded. She recalled him to be low-functioning, unable to control himself or make friends, unable to communicate, follow instructions, play simple group games, or to stay focused on tasks. She speculated that appellee's positive standardized test scores may have been the result of cheating. N.T., Atkins Hearing, 10/24/06, at 35-36. Betty Cam, a counselor at Ludlow Elementary School ("Ludlow"), testified that although appellee's early grades may have been acceptable, he was in remedial programs where grades were largely individualized and not based on comparison with other students. Ms. Cam opined that appellee "appeared slow" to her. On cross-examination, Ms. Cam confirmed that at no time did any teacher express concerns to her that appellee might be mentally retarded. Ms. Cam opined that, in retrospect, appellee should have been screened for retardation, but he "fell through the cracks." N.T., Atkins Hearing, 10/24/06, at 62-65, 79, & 113-16.

Michael Lugo, who coached appellee in baseball when appellee was 12 or 13 years old, testified that appellee had some difficulty with aspects of baseball that required judgment; that other children called appellee "slow, stupid and dumb"; that appellee was not able to manage money; and that appellee was often reckless, like diving off the top level of a fountain. Mr. Lugo was aware that appellee used drugs when he coached him in baseball, but stated that he had told appellee not to arrive high to practice or games, and he believed appellee had obeyed that instruction. N.T., Atkins Hearing, 10/24/06, at 185-92, 199-200, & 202-04.

Luis Pagan, currently serving a life sentence at the State Correctional Institution ("SCI") at Greene for murder and other offenses, testified that he had known appellee since childhood. Pagan testified that appellee did not understand the rules of basketball or how to handle money. Pagan added that he and appellee had abused drugs, including PCP, together on several occasions, but he thought appellee was retarded even without having done drugs. On cross-examination, Pagan answered in the affirmative when asked whether he wished appellee could "get off of death row and do life like the regular guys." N.T., Atkins Hearing, 10/26/06, at 111, 119, & 152. Elias Pagan, currently incarcerated at SCI-Fayette serving four life sentences for murder (including those of Vargas and Carrasquilla, the subject of this appeal, for which Pagan and appellee were convicted as co-conspirators), testified that he knew appellee as a child in Puerto Rico and that the two met again in Philadelphia when appellee was 17 and Pagan was 23. Pagan testified that he ran drug operations and employed appellee as a bodyguard, protector, and enforcer. Pagan testified that appellee never sold drugs and was unable to handle money: "His intelligence wasn't that good. He was a slow man, like retarded." Pagan added that he had to teach appellee how to load an AK-47, that it took a lot of repetitive instruction to do so, and it did not come easily to appellee. According to Pagan, appellee remained his enforcer because appellee would do anything Pagan told him to do and the two were friendly enough to spend most of each day together. N.T., Atkins Hearing, 10/30/06, at 47, 50, & 67-69.

Appellee also called family members. His younger half-brother, Luis Andino, who was serving a sentence at SCI-Graterford for aggravated assault, testified that he believed appellee was "kind of slow" and recalled that appellee had trouble learning to tie his shoelaces even though he was three years older than Andino. Andino believed that in Elias Pagan's drug operation, appellee was a "flunky." When questioned how appellee eluded the police for so long (nearly four months), Andino indicated that appellee would have been protected by the drug dealer (or dealers) who employed him because he would do whatever he was told. N.T., Atkins Hearing, 10/27/06, at 43-44, 49, & 68-69. Minerva Rivera, appellee's cousin and his elder by 12 years, testified that she had a younger sister roughly the same age as appellee but that appellee was much less capable than that sister in personal hygiene and eating habits. Rivera testified that once appellee began using illegal drugs regularly, his temperament changed negatively and he became angry, agitated, nervous, and out of control. N.T., Atkins Hearing, 10/27/06, at 88-92, & 104-08. Antonia Colon, appellee's older sister, stated that she lived with and nearby appellant from the time he was nine or ten until he turned 18. Colon testified that appellee had a key to her residence and often stayed there, but did not understand how to take baths or that chicken should not be eaten until it is fully cooked. Colon stated that she would do appellee's homework for him because he could not do it himself; she believed appellee was "slow" compared to other children his age. N.T., Atkins Hearing, 10/30/06, at 9-10, 12, & 15.

The Commonwealth rebutted appellee's evidence by first calling Carl Rone, a former police officer from Delaware who was a ballistics and firearms expert. Rone testified that while the murder weapon in this case was never recovered, there was no dispute that it was an AK-47 assault rifle. On cross-examination, Rone testified that an AK-47 is one of the easier firearms to load and shoot and that there is only one way to load and shoot it correctly or the weapon will not function. N.T., Atkins Hearing, 11/29/06, at 21, 32-34, & 37.

The Commonwealth then called several experts to refute appellee's evidence of mental retardation. Dr. George Carl Denkowski, a clinical psychologist, did not credit appellee's IQ score of 52 from the Stanford-Binet test, indicating mental retardation, because he observed that appellee was both anxious and depressed, which would have negatively affected performance; appellee also performed poorly on tests designed to measure a subject's efforts. In another test, the Rey 15-Item Performance evaluation, Dr. Denkowski remarked that appellee received varying scores when he gave appellee the test and when Dr. Puente had conducted it roughly eight months earlier. According to Dr. Denkowski, appellee's test efforts and results varied so much that all of his results could be questionable. N.T., Atkins Hearing, 11/29/06, at 48-54, 59, 62-66, & 78-79.

Dr. Denkowski also critiqued Dr. Puente's opinion of mental retardation as warranting little weight in light of appellee's suspect performance effort. In Dr. Denkowski's opinion, the only "constant" in appellee's test scores was his inconsistent, even poor, performance and effort. Moving to appellee's adaptive abilities, Dr. Denkowski critiqued the results of the test given by Dr. Olley on grounds that appellee's score of 27 was so low that if it were accurate, appellee would be so severely retarded that it would be "glaringly obvious even to laypeople." Dr. Denkowski explained that testers must distinguish whether a subject is capable of performing well, but chooses not to, and whether the subject simply does not have the mental capacity to perform well; in Dr. Denkowski's view, this reality introduces subjectivity into what is thought of as "objective" testing. In terms of adaptive functioning, Dr. Denkowski placed less weight on anecdotal evidence of appellee's inability to tie his shoes and more weight on appellee's pre-incarceration ability to navigate his neighborhood, purchase things, conduct drug business by renting corners, have girlfriends, give presents, leave tips, and similar social skills. N.T., Atkins Hearing, 11/29/06, at 80-90, 103, 107-08, & 117-19.

Drawing on witness testimony from appellee's trial for Carlos Martinez's murder, Dr. Denkowski noted that appellee had refused to surrender himself when a girlfriend suggested he do so. Dr. Denkowski deduced that appellee was far from being a follower and felt that appellee was, in fact, "extremely self-directed. He is highly independent. No one is going to tell him what to do." Dr. Denkowski opined that appellee's testimony in the Cruz proceedings was too interactive, detail-oriented, and intelligible to be that of a mentally retarded person. Dr. Denkowski also questioned Dr. Olley's results from testing appellee's "receptive language" skills, such as understanding what one is being told, and "expressive language" skills, such as being able to speak and communicate with others. Dr. Olley had scored appellee more than twice as high on expressive skills (at the level of a ten-year-old child) as on receptive skills (at the level of a four-year-old child). In Dr. Denkowski's view, such incompatibility is nearly impossible because expressive skills are more difficult and it would be rare for them to so greatly outstrip receptive skills, indicating, at the least, something askew with the intake information. Further noting that Dr. Olley's results were based largely on appellee's cousin Minerva Rivera's reporting, Dr. Denkowski opined: "What it indicates to me is that there was an active effort to portray [appellee] as being impaired and she just didn't know how to do it, so she came up with these unusual score patterns . . . ." Dr. Denkowski also indicated that he did not believe that appellee's voluntary drug use would have resulted in the sort of enduring brain change or damage that would lead to mental retardation. N.T., Atkins Hearing, 11/29/06, at 124, 130, 136, & 147.

Unlike appellee's experts, Dr. Denkowski expressed no discomfort with the Slosson test. He acknowledged that it was a fairly minimal screening tool, but also believed that a score on a full IQ test would generally correspond "very closely" to a Slosson score. Dr. Denkowski attributed the disparity in appellee's Slosson test scores from the 1990s (84, 109, and 99) to the likelihood that appellee's effort varied, which affected his results. Dr. Denkowski's review of appellee's school records indicated average or normal performance through fifth grade and "adequate mental ability" prior to the age of 18. Dr. Denkowski's ultimate opinion was that appellee is not mentally retarded. N.T., Atkins Hearing, 11/29/06, at 152-58, & 169-75.

On cross-examination, Dr. Denkowski was questioned on how it could be judged whether appellee had the "capability to manipulate" the various tests given for Atkins purposes. Dr. Denkowski stated: "I believe it is quite simple to withhold effort" and that appellee "was not putting forth consistent effort." Regarding the drop-off in appellee's school performance, Dr. Denkowski posited that although appellee did reasonably well when he began in Spanish-speaking classes, he got "derailed" once he was switched to English-speaking classes, "which I think really undercut him. I don't think he ever recovered from that completely." Dr. Denkowski opined that by the time appellee reached fifth or sixth grade, he had already become "disengaged from the educational process." N.T., Atkins Hearing, 11/29/06, at 179-84, 215-17, 271, & 280.

When questioned about his own testing of appellee, Dr. Denkowski indicated that he believed the bulk of appellee's responses, such as that appellee could not perform certain basic tasks like cutting food into bite-size pieces, buckling a seatbelt, and arriving on time to places, reflected "lifestyle" choices and lack of motivation, not mental retardation. Dr. Denkowski explained that the adaptive ability test he used is meant to measure individuals within a "mainstream social lifestyle" and not within "the criminal socio-culture," where motivation and lifestyle have different effects. Dr. Denkowski believed that because of the likelihood that "inadequate effort was exerted," all of appellee's recent post-Atkins test scores were of questionable reliability. N.T., Atkins Hearing, 11/30/06, at 25-40, 43, & 78.

The Commonwealth also called Dr. Beth Ann Rosica, vice president of service delivery at Vision Quest, the program appellee attended as a teen in 1994 through 1996, at which time Dr. Rosica was the program's national director of education. Dr. Rosica described Vision Quest as a program that accepts juvenile delinquents and other at-risk young people via judicial assignment. Dr. Rosica described the Pennsylvania program as primarily therapeutic and behavioral, but also educational, using the "Wagon Train" format, which involved actual mules and carriages and trips up and down the East Coast and was intended to engage youths and create positive social ethics and patterns. N.T., Atkins Hearing, 12/1/06, at 28-36.

Dr. Rosica stated that Vision Quest was not designed for mentally retarded individuals and that a youth screened and found to be mentally retarded would be transferred to "a more appropriate environment." Dr. Rosica had never met appellee, but indicated that his recorded scores were not low enough to warrant referral for special education. Dr. Rosica added that when youths arrived at Vision Quest, they were still generally quite angry and unhappy and their scores could be "a bit of an under-representation of where the kids really were, grade equivalency-wise." Dr. Rosica stated that appellee's exit records from Vision Quest demonstrated significant improvement, which supported the view that entry scores can be an under-representation and showed the positive impact the program could have on youths like appellee. Dr. Rosica denied that Vision Quest inflated or manipulated participants' scores and evaluations. N.T., Atkins Hearing, 12/1/06, at 37-45, 56, 64-65, & 80.

Under cross-examination, Dr. Rosica acknowledged that Vision Quest is a for-profit entity whose funding depends, at least in part, on successful outcomes. When questioned whether positive exit reports were undermined by academic and behavioral problems when students left the program and returned to public schools, Dr. Rosica replied that the transition from a secluded, structured, and well-funded environment like Vision Quest back to urban living and public schools could be problematic. Dr. Rosica added, however, that the program's success rate with Philadelphia youths was viable enough that placement was continuous. She stated: "our numbers were always high . . . with Philadelphia kids." Dr. Rosica noted that after appellee left Vision Quest, his attendance at the program's affiliated high school in Philadelphia was sporadic, his performance declined, and he ultimately was returned to the program. N.T., Atkins Hearing, 12/1/06, at 96, 104-06, 137-38, & 148-50.

Dr. Paul Spangler, a psychologist and the Director of Clinical Services for Philadelphia's Office of Mental Retardation Services, testified that he was aware of the Atkins decision and had reviewed appellee's available documentation. In Dr. Spangler's view, appellee's test results, while divergent, were all within the "average" range. Dr. Spangler opined that while all tests have flaws, the Slosson test, on which appellee thrice scored above the recognized median ranges for mental retardation, was consistent enough with other testing methods that it was still recognized and used. Dr. Spangler, who focused on appellee's intellectual status prior to 18 years old, testified that he "saw nothing there to indicate mental retardation." On cross-examination, Dr. Spangler maintained that any testing or information obtained with regard to Atkins after a subject turns 18 is suspect because it is retrospective and could also be the result of bias or manipulation. For that reason, Dr. Spangler had limited his own evaluation to the available documentation prior to age 18, which revealed no indication or suggestion of mental retardation. Dr. Spangler added that drug use, even in early teenage years, would not lead to mental retardation even though a subject's scores could be negatively affected by slowed reaction time or decreased motivation. N.T., Atkins Hearing, 1/4/07, at 18, 22, 47, 71-72, 142-43, 168-71, & 174-76.

The Commonwealth also called appellee's trial counsel, Joseph Canuso, Esq. Attorney Canuso testified that he was retained by appellee's family and did not recall them telling him that appellee might have mental or communicative difficulties; Attorney Canuso also did not recall "anything unusual about our communications" or believe that appellee did not understand what was transpiring before and during his trial. Attorney Canuso stated, however, that other than the court-ordered examination performed by Dr. Levitt in association with appellee's other death penalty proceedings, he did no further independent investigation into appellee's mental capacity as a possible sentencing mitigator. He explained that decision by noting that he agreed with Dr. Levitt that although appellee exhibited some "deficiencies," there was nothing dramatic enough to pursue further. Attorney Canuso stated that while Atkins had not yet been handed down at the time of appellee's trial, if he had suspected that appellee was mentally retarded, he would have "done something about it." N.T., Atkins Hearing, 11/30/06, at 136-39, 142-44, & 152.

On rebuttal, appellee called Dr. Daniel Martell, a clinical psychologist from California. Dr. Martell did not personally evaluate appellee, but reviewed the documents and watched a DVD of Dr. Denkowski's evaluation of appellee. Dr. Martell remarked that the testing appellee underwent while incarcerated consistently demonstrated an IQ of approximately 61, which was consistent with appellee's documentation and anecdotal evidence. According to Dr. Martell, this "convergent validity" was significant; he discounted the possibility that appellee malingered or manipulated the results. In Dr. Martell's view, even if appellee intended to perform poorly, the consistency of his various results would be "very difficult" to achieve deliberately. N.T., Atkins Hearing, 1/4/07, at 206-09, 222-54.

Dr. Martell also testified that although appellee had others write letters for him from prison, which could indicate illiteracy or trouble with English, it was just as likely to be a deficit in adaptive functioning. Dr. Martell acknowledged appellee's background and drug use as viable considerations for the sharp decline in his childhood academic performance, but added, "I think it is a mistake to rule out a lack of intellectual horsepower" as a contributing factor. Dr. Martell did not view Slosson tests as valid reflections of IQ. Dr. Martell opined that Dr. Denkowski's methods were likely to "lead" appellee to correct answers and inflate his scores away from the range of mental retardation. Dr. Martell's ultimate opinion was that appellee "has mental retardation and he meets the diagnostic criteria." N.T., Atkins Hearing, 1/4/07, at 256, 264, 267, 296-97, 302, & 321.

On cross-examination, Dr. Martell acknowledged that appellee's heavy daily drug use and difficult home and community life situation likely contributed to his academic drop-off, but opined that these other factors did not discount the probability of mental retardation. Dr. Martell further conceded that even though he viewed the Slosson IQ test as unreliable, he had not previously seen an instance where a mildly mentally retarded individual, tested three times over five years, attained scores consistently within the average range of intelligence and above the range indicating mental retardation, even though the scores themselves diverged from each other. N.T., Atkins Hearing, 1/5/07, at 14-16, 33-36, 41, & 65.

On May 21, 2007, before the court issued a decision on appellee's Atkins claim, the Commonwealth filed a motion to reopen the record, asserting that it had recently received information from prison officials at SCI-Greene that shed substantial doubt on appellee's claims of mental retardation. The Commonwealth posited that "even within the confines of death row," appellee had conspired with other inmates and outsiders to have cell phones smuggled to him in late September 2006, prior to his Atkins hearings, and to keep the phones for over two weeks until October 17, 2006, the day before he was transported to Philadelphia for his Atkins hearings. The Commonwealth alleged that appellee made approximately 134 calls to friends and family and managed to also send text messages and photographs. Records and information indicated at least 15 calls to the residence of appellee's cousin Minerva Rivera, who subsequently testified on his behalf. The Commonwealth alleged that appellee's ...


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