[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 favorab le to Pelzer, as well as Parts

V(A) and (D). I respectfully dissent with regard to P art 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 ap pellee and the PCRA court

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

evidence demonstrating the impact of childhood abando nment, 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 appende d a ready example of the effective use of such evidence, developed upon the cross-e xamination of a Commonwealth mental-health expert. See Commonwealt h v. Williams, 577 Pa. 473, 490-92, 846 A.2d 105, 116-17 (2004) (Saylor, J., concu rring and dissenting). For instance, the forensic psychiatrist candidly acknowledged the profound psychological impact of childhood trauma and deprivation, in terms o f 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 vi ewed 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 miti gation evidence in capital sentencing proceedings merits careful consideration, particu larly as an alternative to the sorts of generic arguments which Daniels’ counsel pursued as components of his presentation. See generally Commonwealth v. Sepulve da, 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 ca pital defense attorneys that potential mental-health issues are essentially ubiquito us 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 “fairl y widespread consensus that the sort of mental-health and explanatory-type life-histo ry 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 claim s 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 ever y one) of twelve individuals, having twelve unique min dsets 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 ba lance);accord 42 Pa.C.S. §9711(c)(1)(iv). An appellate noprejudice finding can mean that a capital defendant w ill 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 merel y beside the point, since the defendant never stood a

(Lcontinued) proffered by Appellant [at the post-conviction stage] c an serve as effective mitigation”); Commonwealth v. Brown, 582 Pa. 461, 521-22, 872 A.2 d 1139, 1174 (2005) (Saylor, J., dissenting) (discussing the difference between mitigating evidence which is explanatory versus that which only attempts to humanize the defend ant with jurors).

2 As the appellee develops, counsel’s failures in the abo ve respects facilitated the prosecutor’s argument, as follows:

Now, the last mitigating factor that the defense is goi ng to argue to you is any other evidence of mitigation conce rning 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 t he 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 juri es do not return such verdicts in every capital case in which th e defendant has committed a heinous murder, or even mult iple killings.

I am most troubled by the speculativeness inherent in n oprejudice determinations, in view of the volume of ca ses in which we are being required to undertake them (due to a lack of preparedness on the part of members of the capita l defense bar). . . . [Until the preparedness and othe r issues are addressed], I believe we should err on the side of providing defendants with one trial at which the defe nse 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 equall y here. Cf. Porter v. McCollum, 558

U.S. 30, 44, 130 S. Ct. 447, 455-56 (2009) (per curi am) (“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 pr obability sufficient to undermine

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

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

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

“potential” prosecution witnesses, I have continuing reser vations about construing

aggravating circumstances more broadly than the plain la nguage 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 w as 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 exa mple in which the Court simply

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

§1928(b)(1), or the narrowing construction to be imple mented 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 con struction 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 Commo nwealth v. Travaglia, 611 Pa.

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

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

v. Houser, 610 Pa. 264, 281-82, 18 A.3d 1128, 1138-3 9 (2011) (Saylor, J., concurring

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

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

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

3 I do not make these points to be obstreperous. My conce rn is that each accretion away from the plain language of a penal statute, osten sibly narrowly construed, creates another layer of uncertainty as to the actual paramet ers of the interpretive judicial review, in the death-penalty arena and otherwise. B y way of another example, this Court has determined that prior juvenile adjudication s are “convictions” for purposes of aggravation under the death-penalty statute, see Comm onwealth v. Baker, 531 Pa. 541, 565, 614 A.2d 663, 675 (1992), irrespective of the fa ct 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 f or 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 t reatment of such adjudications for purposes of aggravation in capital punishment.

The same is true for aggravation when “[t]he victim wa s a prosecution witness.” 42 Pa.C.S. §9711(d)(5). A strict or narrow interpretati on of such terms obviously would require a relevant prosecution to have preceded the killing.

Under the sort of analysis employed in Baker and in App el, 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, forbi d 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, 5 54 Pa. 586, 722 A.2d 657

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

concern, however, similar to that raised in connection wi th 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, t he Court maintains that Lassiter’s

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

any previous decision interpreting the statute to the co ntrary upon a developed

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

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

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

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

A.2d 1191, 1256-57 (2006) (Saylor, J., concurring) (el aborating 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 poten tial impact of antagonistic

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

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

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

light of my conclusion that new penalty hearings are wa rranted 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 retren chment 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 sente ncing 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 statu tory scheme, which is designed

to permit the punishment of death only upon the rend ering 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, 61 6 Pa. 164, 276, 47 A.3d 63,

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

protracted controversies more readily contained, if pros ecutors would limit themselves

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

omitted).