[J-56A-2014 and J-56B-2014] [MO: Eakin, J.] IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

**COMMONWEALTH OF PENNSYLVANIA, Appellant** 

**v.**

**RAYMOND SOLANO, Appellee**  **: :**  **: :**  **: :**  **: :**  **: :**  **: No. 686 CAP**  **Appeal from the Order entered on 09/13/2013 in the Court of Common**  **Pleas, Criminal Division of Lehigh County at No. CP-39-CR-0001114-2002**  **SUBMITTED: May 29, 2014**

**COMMONWEALTH OF PENNSYLVANIA, Appellee** 

**v.**

**RAYMOND SOLANO, Appellant**  **: :**  **: :**  **: :**  **: :**  **: :**  **: No. 687 CAP**  **Appeal from from the Order entered on 09/13/2013 in the Court of Common**  **Pleas, Criminal Division of Lehigh County at No. CP-39-CR-0001114-2002**  **SUBMITTED: May 29, 2014**

DISSENTING OPINION

MR. JUSTICE STEVENS DECIDED: December 21, 201 5 **I respectfully dissent from the Majority’s decision to aff irm the PCRA court**  **decision awarding Raymond Solano (“Solano”) a new pen alty phase based on penalty**  **counsel’s (“counsel”) alleged ineffectiveness in presenting mitigating evidence regarding**  **his traumatic childhood and its impact on his mental hea lth.**  **The Majority acknowledged that counsel’s strategy to hum anize Solano by**  **portraying him as a likeable young man with a troubl ed childhood was plausible;** **[J-56A-2014 and J-56B-2014] [MO: Eakin, J.] - 2**

**however, the Majority then determined that counsel “de spite her good intentions of**  **garnering the jury’s compassion for Solano, did not e mploy the means necessary to**  **achieve this end.” Majority Opinion at 67. I respect fully disagree.**  **While counsel may not have been experienced in trying capital cases, “[t]his**  **Court has consistently stated that inexperience alone is not equivalent to**  **ineffectiveness.” Commonwealth v. Blystone, 555 Pa. 5 65, 725 A.2d 1197, 1205 (1999)**  **(citation omitted). As the Majority outlined supra, each of Solano’s four p**  **enalty-phase witnesses testified as to his mother’s neglect, severe drug abuse, a**  **nd arrest that predicated his time in foster care. Moreover, each witness identified**  **Solano as a “funny, kind, cooperative” child. These four witnesses conveyed to the**  **jury all of the points in support of counsel’s “humanizing” strategy. Specifically**  **, the testimony outlined “[Solano’s] traumatic upbringing, his mother’s extensive**  **drug history, his time in foster care, as well as the fact that he was generally a likeabl**  **e, funny child who performed well in a structure[d] environment.” Commonwealth’s Brief**  **at 21. This testimony clearly had an impact on the jury, as the panel found that the ca**  **tch-all mitigator had been**

**established. At the PCRA hearing, Solano presented potential mit**  **igating evidence through testimony from several witnesses including additional fam**  **ily members and teachers, as outlined by the Majority. While each witness provide**  **d an in-depth analysis of both Solano’s and his mother’s disturbing childhoods, such evid**  **ence was cumulative of the evidence already presented by counsel at the penalty p**  **hase. It is my belief that the PCRA court and the Majority**  **relied too heavily on counsel’s testimony wherein she “f[ell] on her proverbi**  **al sword and assert[ed] that she [J-56A-2014 and J-56B-2014] [MO: Eakin, J.] - 3** 

**did not have a reasonable basis for not doing what [So lano] now claims she should** 

**have done.” Commonwealth’s Brief at 23. The Majority opinion may open the door for some defe**  **nse attorneys to purposely deliver a sub-par penalty phase performance, claim thei**  **r own ineffectiveness during PCRA proceedings in order for their client to be award**  **ed a new penalty phase trial. 1**  **While it is imperative public defenders and criminal d efense firms assign capital**  **cases to experienced attorneys, in this case the fact that co unsel maintains that she**  **was inexperienced does not negate the fact that the def endant received a full and fair**  **trial. I respectfully dissent and would reverse the ord er granting Defendant a new**  **penalty phase trial.**

**1 See, e.g., Commonwealth v. Spotz, 610 Pa. 17, 176,**  **18 A.3d 244, 339 (2011) (Castille, CJ., concurring) (where Chief Justice Castille**  **admonished the tactics employed by the Federal Defenders to “exhaust[ ] the**  **time and resources of the Commonwealth and the state judiciary”).**