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Commonwealth v. Bracey

Supreme Court of Pennsylvania

June 16, 2015


Submitted, October 27, 2014

Appeal from the Order entered on 01/10/2014 in the Court of Common Pleas, Criminal Division of Philadelphia County at No. CP-51-CR-0632821-1991.

For Commonwealth of Pennsylvania, Appellant: Amy Zapp, Esq., PA Office of Attorney General; Hugh J. Burns Jr., Esq.

For Bracey, Edward, Appellee: Billy Horatio Nolas, Esq., Federal Community Defender Office, Eastern District of PA.



Page 271


The Commonwealth appeals from the order of the Philadelphia Court of Common Pleas granting appellee's Post Conviction Relief Act (PCRA)[1] petition; the PCRA court determined appellee suffered from intellectual disability[2] as defined in Commonwealth v. Miller, 585 Pa. 144, 888 A.2d 624 (Pa. 2005), and vacated his death sentence pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which held the Eighth Amendment of the United States Constitution prohibits the execution of individuals with intellectual disability. Id., at 321. We affirm that decision.

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On February 4, 1991, Officer Daniel Boyle attempted to stop a stolen vehicle driven by appellee. When the car crashed, appellee got out, jumped onto the police car roof, and displayed a gun; when he came down from the roof, he aimed the gun at Officer Boyle, fired several shots toward the vehicle, and fled. Officer Boyle was shot and ultimately died. Two days later, appellee entered a home via the skylight and set himself on fire, leading to his arrest. He thereafter confessed to killing Officer Boyle.

On March 3, 1992, a jury convicted appellee of first degree murder, possessing an instrument of crime, criminal trespass, and theft by receiving stolen property. After a penalty-phase hearing, the jury found two aggravating circumstances: the killing of an officer in the line of duty, see 42 Pa.C.S. § 9711(d)(1), and appellee's significant history of felony convictions involving the use or threat of violence, id., § 9711(d)(9). No mitigating circumstances were found, and the jury set the penalty at death; the trial court sentenced appellee to consecutive imprisonment for the remaining convictions. This Court affirmed July 21, 1995. Commonwealth v. Bracey (Bracey I), 541 Pa. 322, 662 A.2d 1062, 1076 (Pa. 1995). Appellee filed a petition for writ of certiorari, which the United States Supreme Court denied April 1, 1996. Bracey v. Pennsylvania, 517 U.S. 1122, 116 S.Ct. 1356, 134 L.Ed.2d 524 (1996).

In May, 1996, appellee filed his first pro se PCRA petition, which was later amended by his PCRA counsel. Appellee argued his trial counsel was ineffective for failing to present evidence of brain damage and mental illness during the penalty phase. The PCRA court denied appellee's petition July 28, 1998, concluding trial counsel's course of action was a strategic decision that did not prejudice appellee. See PCRA Court Opinion, 7/28/98, at 24-25. On December 31, 2001, we affirmed. Commonwealth v. Bracey (Bracey II), 568 Pa. 264, 795 A.2d 935, 938 (Pa. 2001).

Appellee filed his second PCRA petition August 15, 2002, claiming he was intellectually disabled and thus ineligible for the death penalty pursuant to the then-recent Atkins decision. Days before the evidentiary hearing, appellee's attorneys requested the hearing be cancelled, as appellee decided not to present any testimony. Counsel also argued a jury, not the court, was the appropriate fact finder to determine intellectual disability. Because appellee believed presenting evidence of intellectual disability would belie the latter argument, he chose not to do so and relied on evidence concerning brain damage and mental illness already in the record from his first petition.

The PCRA court ordered both parties to appear at the hearing, where appellee declined to present evidence and reasserted his jury claim. Finding the brain-damage and mental-illness evidence did not directly address intellectual disability, the PCRA court held appellee's petition was meritless and thus found the jury issue moot. See PCRA Court Opinion, 8/17/07, at 13-14. On appeal, we held " there is no federal constitutional right to a jury trial for Atkins claims presented in collateral proceedings." Commonwealth v. Bracey (Bracey III), 604 Pa. 459, 986 A.2d 128, 130 (Pa. 2009). However, given the PCRA court's ambiguous stance on whether appellee waived his jury claim, we vacated the denial and remanded for the court to conduct an evidentiary hearing on intellectual disability, see id., at 139-40, colloquially referred to as an Atkins hearing.

Upon the conclusion of the Atkins hearing,

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the PCRA court[3] determined appellee proved, by a preponderance of the evidence, he suffered from intellectual disability and therefore vacated his death sentence. The Commonwealth now appeals, arguing appellee's " internally irreconcilable evidence fail[s] I to support the PCRA court's [intellectual disability] finding[,]" and requesting we alter Miller's standard to prevent " fraud and manipulation" upon our courts. Commonwealth's Brief, at 2.

In an Atkins determination, our standard of review involves a mixed question of law and fact:

A question involving whether a petitioner fits the definition of [intellectual disability] is fact intensive as it will primarily be based upon the testimony of experts and involve multiple credibility determinations. Accordingly, our standard of review is whether the factual findings are supported by substantial evidence and whether the legal conclusion drawn there from is clearly erroneous. We choose this highly deferential standard because the court that finds the facts will know them better than the reviewing court will, and so its application of the law to the facts is likely to be more accurate.

Commonwealth v. Hackett, 99 A.3d 11, 26 (Pa. 2014) (quoting Commonwealth v. Williams, 619 Pa. 219, 61 A.3d 979, 981 (Pa. 2013)) (internal quotation marks omitted).

Although Atkins held the Eighth Amendment prohibits the execution of persons with intellectual disability, Atkins, at 321, it largely left defining intellectual disability to the states, see id., at 317; Hall, at 1998 (" But Atkins did not give the States unfettered discretion[.]" ). Faced with inaction from our General Assembly, this Court in Miller established a three-pronged standard for determining intellectual disability. Mindful of the hazards of comingling legal and medical concepts, we held an individual seeking Atkins relief must prove, by a preponderance of the evidence, he is intellectually disabled as defined by either (a) the American Psychiatric Association in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) or (b) the American Association of Mental Retardation (AAMR), now named the American Association on Intellectual and Developmental Difficulties (AAIDD). Miller, at 631. Per the DSM-IV, intellectual disability[4] is defined as " significantly subaverage intellectual functioning (an IQ of approximately 70 or below) with onset before age 18 years and concurrent deficits or impairments in adaptive functioning." American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR) at 39 (4th ed. text rev. 2000).[5] Similarly, the AAIDD defines intellectual disability as " significant limitations both in intellectual functioning and in adaptive behavior as expressed in the conceptual, social, and practical

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adaptive skills." AAIDD Manual, at 5. Thus, the three components of intellectual disability proof are: (1) significantly subaverage intellectual functioning, (2) significant adaptive deficits, and (3) age of onset.

As to intellectual functioning, both the DSM-IV and AAIDD Manual define significantly subaverage intellectual functioning as approximately 30 points below a mean of 100. See DSM-IV-TR, at 39; AAIDD Manual at 31. Thus, accounting for two standard errors of measurement (SEM),[6] which is estimated to be approximately plus or minus five points for reputable IQ tests, see id. (citations omitted), we held an IQ score between 70 and 75 or lower satisfies the first prong. See Miller, at 631. Moreover, the relationship between the first and second prongs is fluid; if an IQ score is within the SEM range, i.e., 71-75, the examination of adaptive deficits becomes critical. See DSM-IV-TR, at 41-42 (" It is possible to diagnose [intellectual disability] in individuals with IQs between 70 and 75 who exhibit significant deficits in adaptive behavior." ); AAIDD Manual, at 36, 41; see also Williams, at 983 (" [A]n individual with an IQ score between 71 and 75 must have major deficiencies in adaptive behavior, whereas an individual with an IQ score lower than 70 must also be significantly deficient in adaptive behavior to be found [intellectually disabled]." (citation omitted)).

Adaptive behavior is the " collection of conceptual, social, and practical skills that have been learned and are performed by people in their everyday lives." AAIDD Manual, at 15; see also DSM-IV-TR, at 42. Under the DSM-IV, significant impairments in adaptive functioning are present if a person has significant limitations in at least two of the following skill areas: communication, functional academics, social/interpersonal skills, self-direction, home living, work, leisure, use of community resources, self-care, safety, and health. DSM-IV-TR, at 41. The AAIDD Manual analyzes adaptive behavior under conceptual, social, and practical domains, which largely overlap the DSM-IV areas. See AAIDD Manual, at 15, 44. However, the AAIDD Manual would measure adaptive behavior via a standardized assessment that quantifies adaptive deficits, defining significant limitations as at least two SEM below the mean of either one domain individually or an overall score of all three domains. Id., at 43.

The PCRA court held a four-day Atkins hearing in April, 2013. Appellee called two expert witnesses -- Dr. Daniel Martell and Dr. Barry Crown -- and three lay witnesses -- Janet Whack, appellee's sister; Letitia Fletcher, a close friend of appellee's family; and Alan Grolnic, appellee's fifth-grade teacher. The Commonwealth presented the expert testimony of Dr. Paul Spangler.

Dr. Martell, a board-certified forensic psychologist, opined to a reasonable degree of medical certainty that appellee suffered from intellectual disability. See N.T. Hearing, 4/17/13, at 75. Addressing the first prong, he concluded appellee's intellectual functioning was significantly subaverage, consisting of an IQ score of 74 when averaging full-scale scores of 74, 78, 75, and 69, or a range of 64 to 74 when applying the SEM to the 69 score individually. Id., at 48, 203. Dr. Martell noted

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appellee has undergone IQ testing six times, scoring a 74 in 1976, a 78 in 1977, a 75 in 1992, a 75 in 1996, an 81 in 1997, and a 69 in 2011. In particular, he observed the 1976 test type was unknown since the score's only reference appeared in a Psychological Summary by Dr. Carol Andrews, who administered the 1977 test, a Wechsler Intelligence Scale for Children - Revised (WISC-R). In her summary, she noted appellee's score was a four-point improvement over a test administered 11 months earlier. Id., at 40-41; Psychological Summary, 2/24/77. Given the increase over a short time-span and commonality of school-administered IQ tests, Dr. Martell surmised it was highly probable the 1976 test was also a WISC-R. See N.T. Hearing, 4/17/13, at 40-41, 69. He further averred the increase was likely the result of " practice effects," improvement where one takes the same test twice within a year.  ., at 38, 41. The 1996 test, a Wechsler Adult Intelligence Scale - Revised (WAIS-R), was administered by Dr. Harry Krop, id., at 43, while the 2011 test, a Wechsler Adult Intelligence Scale - IV (WAIS-IV) was administered by Dr. Crown. Dr. Martell revealed he applied the SEM to the 2011 test score individually since the WAIS-IV is the " most psychometrically sophisticated" test available. Id., at 60. Because the 2011 test was the only post-Atkins exam and appellee had an incentive to put forth minimal effort, Dr. Martell also addressed concerns about the score's legitimacy, specifically referencing a subtest used to measure effort level. N.T. Hearing, 4/17/13, at 83. Remarking that " fakers" generally score a four or lower, Dr. Martell indicated appellee scored a six, a sign of ample effort. Id., at 84. Similarly, he scored a five when the subtest was administered on the 1996 test. Id.

Notably, Dr. Martell omitted the 1992 and 1997 test scores from his calculation because the scores were calculated by proration, a practice he deemed unreliable and inappropriate for diagnostic purposes under both the DSM-IV and AAIDD Manual. Id., at 49, 62. Specifically, the scores each arose from three WAIS-R verbal subtests, which were then prorated into the 75 and 81 scores. Id., at 61-62. The 1992 test, conducted by the Department of Corrections (DOC), consisted of digit span, vocabulary, and similarities subtests, WAIS-R Record Form, 4/9/92; the 1997 test, administered by Dr. Carol Armstrong, contained information, similarities, and comprehension subtests. N.T. Hearing, 4/17/13, at 61. Unlike full-scale scores, which result from the administration of several subtests covering multiple components or factors, Dr. Martell characterized the scores as simply " prorated [v]erbal IQ" scores. Id., at 62.

On cross-examination, Dr. Martell admitted he was making an informed assumption the 1976 test was a full-scale WISC-R and it was possible the score could have been prorated. Id., at 186-88. The Commonwealth further underscored a statement within Dr. Andrews' 1977 summary that she thought appellee's true potential was even higher. See id., at 189. While disclosing he did not include the statement in his report, Dr. Martell disagreed the statement related to appellee's effort. See id. Moreover, he acknowledged the location of the 1977 test, a juvenile detention center, was not ideal, conceded the " practice effect" would be irrelevant if the 1976 and 1977 tests were not both WISC-Rs, and agreed the score, a 78, fell outside the range of intellectual disability. See id., at 190-94, 199. Similarly, Dr. Martell admitted he failed to reference the 1992 test in his report, id., at 216, and indicated the 1996 test was administered in prison, id., at 204. As for the 1997 test, Dr. Martell revealed he did

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not verify Dr. Spangler's calculations, which produced a prorated score of 81, id., at 223, 226, but reiterated his issue was with prorating scores for Atkins cases in general, see id., at 240. Although agreeing a Wechsler exam type, the Wechsler Abbreviated Scales of Intelligence (WASI), allows for proration, he stated four subtests are required and would not prorate scores for such a " high-stakes situation." Id. The Commonwealth further suggested appellee's depression and Attention Deficit Disorder (ADD) negatively affected the 2011 test score, alluding to references within the 1977 and 1997 test notes, as well as testimony at the 1998 PCRA hearing. Id., at 253-59. The Commonwealth also underscored specific questions appellee answered correctly on pre-Atkins tests but incorrectly on the 2011 test. See id., at 265, 268-70. Dr. Martell did not think such an observation revealed a lack of effort, characterizing the Commonwealth's use of a few questions as " cherry picking." Id., at 270. Instead, he again referenced appellee's digit-span score and noted there were subtle differences between the phrasing of questions within the exams. Id., at 270-71.

As for the second prong, adaptive deficits, Dr. Martell determined appellee was significantly limited in eight areas under the DSM-IV, id., at 97, 100, and all three AAIDD domains, id., at 99. In order of severity, he stated appellee was significantly limited in: (1) functional academics, (2) communication, (3) self-direction, (4) social/interpersonal skills, (5) self-care, (6) home-living, (7) work, and (8) leisure. Id., at 101-02. In his assessment, Dr. Martell reviewed appellee's school, medical, and prison records, and interviewed appellee, his family members, one of his teachers, and Reverend Bruce Garver, a former principal of New Life Boys' Ranch, a reform school appellee attended from 1977 to 1978. See Report of Dr. Daniel A. Martell, 1/30/13, at 5. Further, ...

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