[J-13A&B & J-14A&B-2013] 

IN THE SUPREME COURT OF PENNSYLVANIA 

EASTERN DISTRICT 

COMMONWEALTH OF PENNSYLVANIA, 

Appellant 

v. 

HENRY DANIELS, 

Appellee 

COMMONWEALTH OF PENNSYLVANIA, 

Appellee 

v. 

HENRY DANIELS, 

Appellant 

COMMONWEALTH OF PENNSYLVANIA, 

Appellant 

v. 

KEVIN PELZER, 

Appellee 

COMMONWEALTH OF PENNSYLVANIA, 

Appellee 

v. 

KEVIN PELZER, 

Appellant 

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No. 631 CAP 

Appeal from the Order entered on 

8/26/11 in the Court of Common Pleas 

of Philadelphia County at No. CP-51-

CR-1031751-1988 

No. 632 CAP 

Appeal from the Order entered on 

8/26/11 in the Court of Common Pleas 

of Philadelphia County at No. CP-51-

CR-1031751-1988 

No. 633 CAP 

Appeal from the Order entered on 

8/26/11 in the Court of Common Pleas 

of Philadelphia County at No. CP-51-

CR-1031752-1988 

No. 634 CAP 

Appeal from the Order entered on 

8/26/11 in the Court of Common Pleas 

of Philadelphia County at No. CP-51-

CR-1031752-1988 

SUBMITTED: February 12, 2013 
[J-13A&B & 14A&B-2013] [M.O. – Castille, C.J.] - 2 

CONCURRING AND DISSENTING OPINION 

MR. JUSTICE SAYLOR DECIDED: October 30, 2014 

I join Parts I, II, and III of the majority opinion and, thus, in the affirmance of the 

denial of guilt-phase relief in both the Daniels and Pelzer appeals. I also join Part IV(A), 

which concerns the affirmance of penalty relief favorable to Pelzer, as well as Parts 

V(A) and (D). I respectfully dissent with regard to Part IV(B), which concerns the 

reversal of the PCRA court’s award of penalty relief to Daniels. 

As to the Daniels penalty verdict, I agree with the appellee and the PCRA court 

that trial counsel rendered deficient stewardship in: failing to present mental-health 

evidence demonstrating the impact of childhood abandonment, trauma, and loss upon 

the development of his personality and behavior for purposes of mitigation;1 and entirely 

 

1

 In a responsive opinion in a previous case, I appended a ready example of the 

effective use of such evidence, developed upon the cross-examination of a 

Commonwealth mental-health expert. See Commonwealth v. Williams, 577 Pa. 473, 

490-92, 846 A.2d 105, 116-17 (2004) (Saylor, J., concurring and dissenting). For 

instance, the forensic psychiatrist candidly acknowledged the profound psychological 

impact of childhood trauma and deprivation, in terms of fostering poor impulse control 

and lack of judgment, insight, and reasoning. See id. Although it may be observed that 

this sort of explanatory mitigation evidence may be viewed negatively by some jurors, it 

must also be borne in mind that the defense need only gain the support of one of twelve 

jurors to evade a death sentence. See Majority Opinion, slip op. at 53; accord Wiggins 

v. Smith, 539 U.S. 510, 537, 123 S. Ct. 2527, 2543 (2003). It is thus my considered 

judgment that the use of this sort of explanatory mitigation evidence in capital 

sentencing proceedings merits careful consideration, particularly as an alternative to the 

sorts of generic arguments which Daniels’ counsel pursued as components of his 

presentation. See generally Commonwealth v. Sepulveda, 618 Pa. 262, 343, 55 A.3d 

1108, 1156 (2012) (Saylor, J., concurring) (“As of the time of Appellant’s trial . . ., it was 

well understood in the training readily available to capital defense attorneys that 

potential mental-health issues are essentially ubiquitous in capital cases, and that 

childhood abuse and deprivations may substantially impact personality, cognition, and 

behavior.”); Commonwealth v. Washington, 592 Pa. 698, 755 n.4, 927 A.2d 586, 620 

n.4 (2007) (Saylor, J., dissenting) (addressing a “fairly widespread consensus that the 

sort of mental-health and explanatory-type life-history mitigation evidence presently 

(continuedL) 
[J-13A&B & 14A&B-2013] [M.O. – Castille, C.J.] - 3 

ignoring, in his closing remarks to the sentencing jurors, the limited evidence which had 

been presented concerning appellee’s life history, see N.T., Nov. 13, 1989, at 138-148.2 

 I have previously commented: 

The federal constitutional standard pertaining to claims of 

ineffective assistance of counsel places appellate courts in a 

difficult position where a trial attorney did not do his job. We 

are to essentially speculate whether each one (and every 

one) of twelve individuals, having twelve unique mindsets 

which we cannot know, would have supported a death 

sentence, had an appropriate presentation been made. See 

Wiggins v. Smith, 539 U.S. 510, 537, 123 S. Ct. 2527, 2543 

(2003) (explaining that prejudice is assessed according to 

whether a single juror might have struck a different balance); 

accord 42 Pa.C.S. §9711(c)(1)(iv). An appellate noprejudice finding can mean that a capital defendant will 

never receive a single trial in which he is represented by 

competent counsel. Indeed, such a finding is tantamount to 

a determination that adequate representation is merely 

beside the point, since the defendant never stood a 

 

(Lcontinued) 

proffered by Appellant [at the post-conviction stage] can serve as effective mitigation”); 

Commonwealth v. Brown, 582 Pa. 461, 521-22, 872 A.2d 1139, 1174 (2005) (Saylor, J., 

dissenting) (discussing the difference between mitigating evidence which is explanatory 

versus that which only attempts to humanize the defendant with jurors). 

2

 As the appellee develops, counsel’s failures in the above respects facilitated the 

prosecutor’s argument, as follows: 

Now, the last mitigating factor that the defense is going to 

argue to you is any other evidence of mitigation concerning 

the character and record of the Defendant and the 

circumstances of his offense. . . . What is there about 

Henry Daniel’s record that is in mitigation? Nothing. He’s 

got a robbery conviction. What other evidence is there? 

The only other evidence you know anything about is the 

possibility that he may have gotten religion. 

N.T., Nov. 13, 1989, at 122. 
[J-13A&B & 14A&B-2013] [M.O. – Castille, C.J.] - 4 

reasonable chance of avoiding a death verdict in any event. 

The decision is further complicated by the fact that juries do 

not return such verdicts in every capital case in which the 

defendant has committed a heinous murder, or even multiple 

killings. 

I am most troubled by the speculativeness inherent in noprejudice determinations, in view of the volume of cases in 

which we are being required to undertake them (due to a 

lack of preparedness on the part of members of the capital 

defense bar). . . . [Until the preparedness and other issues 

are addressed], I believe we should err on the side of 

providing defendants with one trial at which the defense is 

guided by a competent, prepared lawyer. 

Commonwealth v. Koehler, 614 Pa. 159, 227-28, 36 A.3d 121, 162 (2012) (Saylor, J., 

concurring). I find that these remarks pertain equally here. Cf. Porter v. McCollum, 558 

U.S. 30, 44, 130 S. Ct. 447, 455-56 (2009) (per curiam) (“We do not require a defendant 

to show ‘that counsel’s deficient conduct more likely than not altered the outcome’ of his 

penalty proceeding, but rather that he establish ‘a probability sufficient to undermine 

confidence in [that] outcome.’” (citation omitted; alteration in original)). 

 Next, relative to Part V(B) of the majority opinion, while acknowledging that the 

Court has previously settled on an extension of the Section 9711(d)(5) aggravator to 

“potential” prosecution witnesses, I have continuing reservations about construing 

aggravating circumstances more broadly than the plain language of the death-penalty 

statute will support. In this instance, the statute says “[t]he victim was a prosecution 

witness,” 42 Pa.C.S. §9711(d)(5) (emphasis added), but the Court has extended these 

terms to “potential” witnesses via an allusion to what was believed to be the underlying 

legislative intent. See Commonwealth v. Appel, 517 Pa. 529, 537 n.2, 539 A.2d 780, 

784 n.2 (1988). This manner of analysis presents an example in which the Court simply 

has not applied the strict construction appropriate to penal statutes, see 1 Pa.C.S. 

§1928(b)(1), or the narrowing construction to be implemented in relation to death-
[J-13A&B & 14A&B-2013] [M.O. – Castille, C.J.] - 5 

penalty statutes, see Commonwealth v. Stallworth, 566 Pa. 349, 373, 781 A.2d 110, 

124 (2001) (“[I]n the context of a statute defining a category of persons against whom it 

is permissible to impose a sentence of death, such strict construction should militate in 

favor of the least inclusive interpretation.”) (citing Zant v. Stephens, 462 U.S. 862, 877, 

103 S. Ct. 2733, 2742 (1983)). See generally Commonwealth v. Travaglia, 611 Pa. 

481, 527, 28 A.3d 868, 896 (2011) (Saylor, J., concurring) (commenting on other 

instances in which a narrowing construction has not been maintained); Commonwealth 

v. Houser, 610 Pa. 264, 281-82, 18 A.3d 1128, 1138-39 (2011) (Saylor, J., concurring 

and dissenting) (same); Commonwealth v. Mitchell, 588 Pa. 19, 83-84, 902 A.2d 430, 

469 (2006) (Saylor, J., concurring) (same); Commonwealth v. Robinson, 583 Pa. 358, 

392-99, 877 A.2d 433, 453-57 (2005) (Saylor, J., concurring and dissenting).3

 

3

 I do not make these points to be obstreperous. My concern is that each accretion 

away from the plain language of a penal statute, ostensibly narrowly construed, creates 

another layer of uncertainty as to the actual parameters of the interpretive judicial 

review, in the death-penalty arena and otherwise. By way of another example, this 

Court has determined that prior juvenile adjudications are “convictions” for purposes of 

aggravation under the death-penalty statute, see Commonwealth v. Baker, 531 Pa. 541, 

565, 614 A.2d 663, 675 (1992), irrespective of the fact that the Legislature has 

specifically indicated that “[a]n order of disposition or other adjudication in a proceeding 

under [the Juvenile Act] is not a conviction of a crime.” 42 Pa.C.S. §6354. To my mind, 

given that juvenile adjudications are not convictions for nearly every other purpose, it is 

simply impossible to say that the Court is engaging in narrow construction, while it is 

simultaneously disregarding the statutorily-prescribed treatment of such adjudications 

for purposes of aggravation in capital punishment. 

The same is true for aggravation when “[t]he victim was a prosecution witness.” 42 

Pa.C.S. §9711(d)(5). A strict or narrow interpretation of such terms obviously would 

require a relevant prosecution to have preceded the killing. 

Under the sort of analysis employed in Baker and in Appel, the field appears to be wide 

open for judicial, policy-based extensions of the reach of the death-penalty statute. 

However, the governing federal constitutional overlay and rules of construction clearly 

delineated by the Legislature, as discussed above, forbid such extensions. 

(continuedL) 
[J-13A&B & 14A&B-2013] [M.O. – Castille, C.J.] - 6 

 With regard to Part V(C) of the Majority Opinion, I support the majority’s holding 

that there is no issue under Commonwealth v. Lassiter, 554 Pa. 586, 722 A.2d 657 

(1998) (plurality), in the first instance. See Majority Opinion, slip op. at 75-76. I have a 

concern, however, similar to that raised in connection with the issue above, with the 

manner of analysis by which the Lassiter holding is being deemed to apply 

prospectively only. See id. at 74. Per such analysis, the Court maintains that Lassiter’s 

plain-meaning interpretation of a clearly-worded statute – rendered in the absence of 

any previous decision interpreting the statute to the contrary upon a developed 

controversy -- represented a “change in the law.” Id. To my mind, the non-retroactive 

application of Lassiter, or, more appropriately, the failure to apply Section 9711(d)(6), 

upon its own, straightforward terms to capital trials conducted prior to Lassiter, is not 

based on any firm reasoning. Accord Commonwealth v. Spotz, 587 Pa. 1, 109-11, 896 

A.2d 1191, 1256-57 (2006) (Saylor, J., concurring) (elaborating on this perspective). 

Again, my main concern in reiterating this point is to stress the importance of 

strengthening the reasoning process. Accord supra note 3. 

Concerning Part V(E) of the majority opinion, I have reservations about the 

conduct of joint penalty proceedings because of the potential impact of antagonistic 

defenses and spillover prejudice to aggravators and mitigation. See, e.g., State v. Carr, 

331 P.3d 544, 717-20 (Kan. 2014) (disapproving the conduct of a joint penalty 

proceeding based on such concerns and awarding new, separate penalty hearings). In 

light of my conclusion that new penalty hearings are warranted for both appellees, I do 

not consider this question further here; however, as a supervisory matter, I would simply 

 

(Lcontinued) 

Accordingly, it is my considered perspective that retrenchment is needed, defining the 

reach of the death-penalty statute according to its own terms, narrowly construed. 
[J-13A&B & 14A&B-2013] [M.O. – Castille, C.J.] - 7 

have required the conduct of separate, individualized proceedings on remand (had my 

position prevailed as to Daniels). 

 Finally, as to Part V(F), I appreciate the majority’s denotation of my continuing 

disapproval of the prosecutorial practice of urging sentencing jurors to show the same 

mercy to a capital defendant as was shown to the victim. See Majority Opinion, slip op. 

at 82 n.12. My reasoning is based on the concern that such practice is fundamentally 

inconsistent with the plain terms of the governing statutory scheme, which is designed 

to permit the punishment of death only upon the rendering of reasoned moral 

judgments, not decisions made on the same lawless terms by which murders are 

committed. Accord Commonwealth v. Sneed, 616 Pa. 1, 38, 45 A.3d 1096, 1118 (2012) 

(Saylor, J., dissenting); cf. Commonwealth v. Spotz, 616 Pa. 164, 276, 47 A.3d 63, 

131 (2012) (Saylor, J., concurring) (“In my view, justice would be better served, and 

protracted controversies more readily contained, if prosecutors would limit themselves 

more closely to the facts of the case in the context of the governing law.”) (citations 

omitted).