Submitted May 30, 2013.
Appeal From the Order entered on 6/21/2012 denying
PCRA relief in the Court of Common Pleas of Lehigh County, Criminal
Division, at No. CP-39-CR-0000058-1994. Trial Court Judge: Edwrd D. Reibman,
[Copyrighted Material Omitted]
Eric John Montroy, Esq., Ayanna Williams, Esq., Federal Community Defender Office, Eastern District of PA, James H. Moreno, Esq., Defender Association of Philadelphia, for Harvey Miguel Robinson.
Heather F. Gallagher, Esq., Havertown, Stephen Michael VanNatten, Esq., Allentown, Lehigh County District Attorney's Office, Amy Zapp, Esq., Harrisburg, PA Ofice of Attorney General, for Commonwealth of Pennsylvania.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, and STEVENS, JJ.
This is a capital appeal from the order of the Court of Common Pleas of Lehigh County denying appellant Harvey Miguel Robinson's first petition for relief under the Post Conviction Relief Act (" PCRA" ), 42 Pa.C.S. §§ 9541-9546. For the reasons that follow, we affirm the order of the PCRA court.
The facts underlying appellant's conviction and sentence of death are discussed more fully in appellant's direct appeal, Commonwealth v. Robinson, 581 Pa. 154, 864 A.2d 460, 471-78 (2004), cert. denied, 546 U.S. 983, 126 S.Ct. 559, 163 L.Ed.2d 470 (2005)( Robinson I ). In order to place appellant's current claims in context, some background is required.
The evidence adduced at trial and summarized more fully in Robinson I established that appellant raped and brutally murdered three women in separate incidents over a one-year span. The first rape and murder occurred in early August of 1992, with the dead and battered body
of victim Joan Burghardt, who had been dead for some time, found in her apartment in Allentown on August 9. Appellant was seventeen at the time he raped and bludgeoned Ms. Burghardt to death. The second rape and murder occurred in Allentown on June 9, 1993, the victim being fifteen-year old Charlotte Schmoyer, who apparently was abducted while delivering newspapers. Appellant had viciously stabbed the young girl twenty-two times, including at least two wounds up to the hilt of the four-inch knife he used; he then dumped the child's body in a heavily wooded area. A month later, on July 14, 1993, the dead body of Jessica Jean Fortney was found in the bedroom of her home in Allentown. Appellant had raped Ms. Fortney and then beat and strangled her to death.
The three murders were consolidated and tried together before a jury beginning on October 10, 1994. A primary witness for the Commonwealth at trial was Denise Sam-Cali, who had survived a similar rape and murderous assault by appellant in her Allentown home on June 28, 1993. The rape and assault on Ms. Sam-Cali thus took place less than three weeks after the murder of Ms. Schmoyer, and two weeks before the murder of Ms. Fortney. The attack followed a similar trajectory as the other rapes and murders.
Prior to the capital murder trial, appellant pled guilty to three counts of burglary, two counts of attempted criminal homicide, and two counts of firearms not to be carried without a license, relating to the multiple attacks on Ms. Sam-Cali. In November 1994, following the guilt phase portion of the serial murder trial, the jury returned a guilty verdict of first-degree murder for each murder as well as guilty verdicts on all remaining charges. Appellant was represented by Carmen Marinelli, Esquire, at the guilt phase.
The trial then proceeded to the penalty phase and appellant presented testimony from family and friends and the expert testimony of Dr. Robert Sadoff, a forensic psychiatrist. Dr. Sadoff testified that, inter alia, appellant had an " anti-social personality disorder." Appellant did not take the stand and testify on his own behalf. Following the presentation of evidence at the penalty phase, the jury found the following aggravating circumstances as to each murder: (1) the killing was committed during the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6); (2) appellant had a significant felony history involving the use or threat of violence, id. § 9711(d)(9); and (3) appellant was convicted of another murder before or at the time of the present murder, id. § 9711(d)(11). The jury also found the torture aggravator, id. § 9711(d)(8), respecting the murders of Ms. Schmoyer and Ms. Burghardt. The jury further concluded that the multiple aggravating circumstances outweighed a single mitigating circumstance it found respecting each case, i.e., the catch-all mitigator under Section 9711(e)(8). The mitigating factors enumerated by the jury to support the catchall circumstance included " family background and environment," " use of alcohol and drugs," and " school history." The jury thus returned verdicts of death for all three murders. The trial court formally imposed the sentences of death on November 29, 1994, and imposed lesser sentences for the non-murder convictions.
Appellant was represented by James Burke, Esquire, at the penalty phase.
Philip Lauer, Esquire, and Mary Ennis, Esquire, (hereafter " appellate counsel" ) were appointed to represent appellant for purposes of post-sentence motions and direct appeal. The death sentences related to the murders of victims Burghardt and Schmoyer were vacated on post-sentence motions, and new penalty hearings were granted as to those murders. The trial court determined that the jury had impermissibly considered the murders of Ms. Schmoyer and Ms. Fortney when finding the (d)(11) aggravating circumstance for the murder of Ms. Burghardt and had impermissibly considered the murder of Ms. Fortney in passing upon the penalty for the murder of Ms. Schmoyer. The Commonwealth did not appeal the grant of sentencing relief as to these two murders. Appellant filed a direct appeal from his sentence of death for the murder of Ms. Fortney, and our Court consolidated that appeal as of right with the discretionary, interlocutory appeals appellant lodged respecting the murders of Ms. Burghardt and Ms. Schmoyer, with those appeals limited to the guilt phase. Robinson, 864 A.2d at 478 n. 25.
On direct appeal, the Court reviewed a number of claims of trial counsel ineffectiveness related to both the guilt and penalty phases of trial, thus affording appellant unitary review. The Court explained that the collateral claims fell within the " narrow exception" to the Grant rule (which requires deferral of ineffectiveness claims to PCRA review), which was articulated in Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003), because both guilt phase and penalty phase counsel testified on post-sentence motions. Ultimately, the Court affirmed the three first-degree murder convictions and affirmed the judgment of sentence of death related to the murder of Ms. Fortney.
On July 24, 2006, James Moreno, Esquire, of the Philadelphia-based Federal Community Defender Office (" FCDO" ) filed an " Ex Parte Motion," seeking an order permitting the transport of appellant for an MRI and PET scan. On August 3, 2006, appellant filed a pro se petition for PCRA relief. His pro se petition stated that he was being represented by Moreno and Rebecca Blaskey, Esquire, also with the FCDO, for purposes of a federal habeas corpus petition. A full four years later,
on August 2, 2010, the FCDO finally filed a counseled PCRA petition, raising two claims of counsel ineffectiveness related to the penalty phase and a claim that the sentence of death in this case violated the Eighth Amendment. The PCRA court conducted four days of evidentiary hearings during which expert witnesses from both sides testified. Appellant also presented the testimony of his trial counsel, his appellate counsel, Dr. Sadoff, and the brief testimony of John Lesko, another convicted capital murderer who resided on death row in the same prison as appellant for a time. Following the hearing, the PCRA court denied appellant PCRA relief by order dated June 21, 2012. Appellant filed this appeal pursuant to 42 Pa.C.S. § 9546(d).
In the opinion accompanying its order, the PCRA court first addressed appellant's claim that trial counsel were ineffective for failing to adequately investigate and present mitigating evidence at the penalty phase of the trial and his derivative, layered claim that appellate counsel were ineffective for failing to raise the issue of trial counsel's ineffectiveness on appellant's hybrid direct appeal. The primary information that was allegedly not obtained by trial counsel (or obtained but not provided to Dr. Sadoff) related to school records. Appellant's theory of collateral attack was that the school records would have demonstrated that in 1981, when appellant was 6, he tested to a full scale IQ of 126, which was in the superior range, but in 1989, when he was 14 and a resident at Harbor Creek (a juvenile placement facility), he tested to a full scale IQ of 100, which is in the average range. Appellant's PCRA experts opined that the difference in the two test results was significant and would have warranted further neuropsychological testing because it suggested possible frontal lobe brain damage. According to appellant's experts, the theory of possible frontal lobe brain damage was further supported by the PET scan and MRI of appellant's brain secured by the FCDO's ex parte motion.
The PCRA court reasoned that the issue was without merit because appellant did not credibly prove its necessary factual predicate, i.e., that trial counsel failed to obtain and provide appellant's school records to Dr. Sadoff. The PCRA court explained that resolution of the issue ultimately came down to a credibility determination between trial counsel's testimony that he had obtained the school records and provided them to Dr. Sadoff and Dr. Sadoff's testimony that it was his practice to record every document he reviewed in preparing his report. Dr. Sadoff further
testified that he was " confident" that he did not receive the records because the school records were not listed in his report. As will be addressed more fully below, the PCRA court credited the testimony of trial counsel over that of Dr. Sadoff, thereby determining that appellant did not establish that trial counsel failed to provide the school records to Dr. Sadoff.
Alternatively, the PCRA court reasoned that even if trial counsel had failed to provide the records to Dr. Sadoff, appellant could not establish prejudice. The court based its finding on the competing testimony of the experts, who testified as to when neuropsychological testing became available and generally accepted for diagnosing brain damage. Much of the relevant testimony centered on the use of PET scans and MRIs for diagnosing brain damage. The PCRA court concluded that, at the time of appellant's trial in 1994, the issues of who should be tested for brain damage, what that testing would actually entail, and understanding the consequences of such results were only in the incipient stage. Furthermore, the PCRA court explained there was some dispute among the proffered experts as to whether the drop in IQ reflected in the two test scores was indicative of possible brain damage, or whether the decrease was attributable to external factors other than brain damage. In any event, the PCRA court was ultimately persuaded that appellant could not establish that the outcome of the penalty proceeding would have been altered given the magnitude of his crimes. The PCRA court summarized its rejection of this ineffectiveness issue as follows:
In sum, [appellant]'s claim for relief hinges on the drop in his IQ scores between 1981, when he was six years old, and 1989, when he was fourteen years old. Although all experts agree to some extent that this diminution is " significant," the " low" score of 100 may have been caused by external factors, such as a poor education, during the intervening period as opposed to some cognitive impairment of [appellant]'s brain. In any event, even the score of 100 indicates a " normal" brain. Under those circumstances, it cannot be said that Dr. Sadoff, an experienced clinical psychiatrist, should have referred [appellant] for additional testing, much less that trial counsel was somehow ineffective for relying on Dr. Sadoff. Nor has it been established that the brain imaging studies subsequently used by [appellant's expert] in his evaluation of [appellant], would have been available to test and diagnose [appellant] in 1994 even if a consensus regarding a diagnosis does exist under present day standards. More to the point, in view of the overwhelming weight of the aggravating circumstances in this case, in the form of brutal serial rape and murder, and in light of the credible expert witness testimony presented by the Commonwealth regarding [appellant]'s manifest ability to utilize executive brain function to carefully plan and execute these crimes, there is no probability that the calculus of any reasonable juror would have been altered by the claims of front lobe impairment upon which [appellant] now bottoms his argument.
PCRA court opinion, 6/21/12, at 17-18.
The PCRA court did not separately address appellant's second claim that trial counsel was ineffective for presenting evidence of antisocial personality disorder to the jury via Dr. Sadoff. Rather, in discussing the first issue, the court noted that trial counsel had testified that he was aware that the diagnosis would come out on cross-examination, and so he determined to deal with it " proactively in the full context of Dr. Sadoff's professional
medical explanation." Furthermore, according to the court, it was the only potentially mitigating factor " from a diagnosis perspective" that trial counsel possessed. Id. at 7-8.
The PCRA court then addressed appellant's claim that the Eighth Amendment prohibits the imposition of a death sentence on a brain-damaged individual, by footnote. The court concluded that appellant waived the issue because it was not advanced in his brief. Alternatively, the court dismissed the claim " out of hand" because appellant's mental condition did not place him in the category of persons for whom capital punishment was constitutionally prohibited. Id. at 18 n. 3 (and citing Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002)).
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, 593 Pa. 67, 928 A.2d 215, 223 (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." Id. § 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." Id. § 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 postconviction proceeding." Id. § 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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, with prejudice measured by whether there is a reasonable probability that the result of the proceeding would have been different. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (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, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993); see also Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Furthermore, counsel is presumed to have rendered effective assistance. 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; 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, 554 Pa. 31, 720 A.2d 693, 701 (1998). Additionally, counsel obviously cannot be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Jones, 590 Pa. 202, 912 A.2d 268, 278 (2006).
Finally, as appellant was permitted to litigate claims of trial counsel ineffectiveness on post-verdict motions and on direct appeal, to secure relief on his new, underlying claims of trial counsel ineffectiveness, he must demonstrate not only that trial counsel was ineffective, but that appellate counsel were ineffective for failing to raise
the claims on post-verdict motions and on his hybrid direct appeal. In short, appellant's ineffectiveness claims deriving from trial counsel's performance are cognizable only as " layered" claims. To secure relief as to these claims, appellant must plead and prove Strickland / Pierce ineffectiveness as to each relevant layer of representation as explained by Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, 1023 (2003). See also Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 292 (2010).
We now address appellant's claims.
II. Ineffective Investigation and Presentation of Mental Health Evidence
A. Parties' Arguments
Appellant first alleges that trial counsel was ineffective nearly twenty years ago for failing to investigate and present what he claims was " readily available" evidence of frontal lobe and parietal brain damage. Appellant argues that penalty phase counsel was inexperienced and had not tried a capital case, or any murder case, before. This inexperience, he says, was highlighted by the fact that Dr. Sadoff was not contacted until fourteen days before trial. Furthermore, appellant argues that more experienced trial counsel in 1994 would have known that Dr. Sadoff's diagnosis of antisocial personality disorder was not a mitigating factor.
Notwithstanding the PCRA court's credibility findings, appellant also alleges that trial counsel failed to provide relevant school records to Dr. Sadoff. The records, he says, would have shown a significant drop in appellant's performance on IQ tests between the ages of six and fourteen (a twenty-six point testing decrease overall and a forty-two point decrease in verbal performance), as measured by IQ tests administered at those ages. Appellant notes that Dr. Sadoff ...