[J-69-2018]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

RUSSELL COX,

Appellant

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No. 498 CAP

Appeal from the Order entered on 

12/06/2005 in the Court of Common 

Pleas, Philadelphia County, Criminal 

Division, dismissing the PCRA petition 

at No. CP-51-CR-0511561-1986. 

Notice of Appeal filed after remand 

from the Order dated 11/10/2016.

SUBMITTED: September 13, 2018

OPINION

JUSTICE MUNDY DECIDED: March 26, 2019

Appellant, Russell Cox, appeals from the order of the Court of Common Pleas of 

Philadelphia County dismissing his second petition filed pursuant to the Post Conviction 

Relief Act (PCRA),

1

in this capital case.

2

 

I. Factual and Procedural Background3

 

1 42 Pa.C.S. §§ 9541-9546.

2 Section 9546(d) of the PCRA designates exclusive jurisdiction to this Court over appeals 

from orders denying relief when the petitioner received the death penalty. 42 Pa.C.S. § 

9545(d); Commonwealth v. Williams, 196 A.3d 1021, 1024 n.1 (Pa. 2018). 

3 We have thoroughly summarized the factual history and early procedural progress of 

this case in two previous opinions. See Commonwealth v. Cox, 686 A.2d 1279 (Pa. 

1996), cert. denied, 522 U.S. 999 (1997); Commonwealth v. Cox, 863 A.2d 536 (Pa. 
[J-69-2018] - 2

On May 20, 1997, Appellant was convicted of first-degree murder, criminal 

conspiracy, rape, and possessing an instrument of crime,

4

in connection with his 

participation, along with co-defendant Percy Lee, in the February 27, 1986 brutal slayings 

of Evelyn Brown and her seventeen-year-old daughter, Tina. Petitioner was 18 years old 

at the time of the crimes and Lee was 17 years old. In the subsequent penalty phase, 

the jury found the following aggravating circumstances: 1) the killings were committed 

during the perpetration of a felony; 2) the killings were committed by means of torture; 

and 3) Appellant was convicted of another offense for which a life sentence could be 

imposed. The jury also found the following mitigating circumstances: 1) Appellant’s lack 

of a criminal record; 2) Appellant’s young age; and 3) other mitigation concerning 

Appellant’s character and the circumstances of the offense. Determining the aggravating 

circumstances outweighed the mitigating circumstances, the jury sentenced Appellant to 

death on each murder count. 

Appellant received new counsel for his direct appeal in which he raised numerous 

issues, including various claims of ineffective assistance of counsel. This Court affirmed 

the judgment of sentence on December 23, 1996. See Cox, 686 A.2d at 1283. We denied 

reargument on February 18, 1997 and the United States Supreme Court denied certiorari 

on December 1, 1997. 

Appellant filed a pro se PCRA petition on December 7, 1997. The PCRA court 

appointed counsel, who filed an amended petition, and two supplemental petitions. The 

Commonwealth filed a motion to dismiss. After hearing argument on the motion to 

dismiss, the PCRA court issued a notice of its intent to dismiss Appellant’s PCRA petition. 

 

2004). For the purpose of providing context for this appeal, we provide an abbreviated 

summary.

4 18 Pa.C.S. §§ 2502(a), 903, 3121, and 907, respectively.
[J-69-2018] - 3

The PCRA court dismissed the petition on June 18, 2002. Appellant appealed, and this 

Court affirmed the order of dismissal on December 22, 2004. See Cox, 863 A.2d at 539. 

Appellant filed a second PCRA petition on February 17, 2005, alleging ineffective 

assistance of counsel claims and challenging his eligibility for a death sentence in light of 

Atkins v. Virginia, 536 U.S. 304 (2002) (holding that execution of mentally retarded

individuals violates the Eighth Amendment’s prohibition of cruel and unusual 

punishment).5 The PCRA court initially determined that Petitioner’s non-Atkins issues 

were facially untimely and that Appellant did not establish any exception to the PCRA’s 

timeliness requirements. Accordingly, the PCRA court concluded it lacked jurisdiction to 

address the merits of those claims. The PCRA court held, however, that Appellant’s 

Atkins claim met the timeliness exception of Section 9545(b)(1)(iii) and (2) in that he 

presented it within 60 days of the date he first could have raised the claim based on a 

newly recognized constitutional right when that right has been held to apply retroactively. 

Atkins was decided while Appellant’s first PCRA petition was pending on appeal, and 

Appellant filed his second PCRA petition within 60 days of our decision in that appeal. 

Addressing Appellant’s Atkins issue, the PCRA court held that Appellant merely 

presented a bald claim that he was intellectually disabled, failing to include any 

certification or offer of proof in support of the claim. The PCRA court therefore dismissed 

the entire PCRA petition without a hearing. In its written opinion, however, the PCRA 

court acknowledged this Court’s intervening decision in Commonwealth v. Miller, 888 

A.2d 624, (Pa. 2005) and welcomed a remand from this Court to afford the parties an 

 

5 Since Atkins, the term “mentally retarded” has been supplanted by the term 

“intellectually disabled.” See Commonwealth v. Bracey, 117 A.3d 270, 271 n.2 (Pa. 

2015), abrogated on other grounds by Moore v. Texas, 137 S. Ct. 1039 (2017). Herein 

we employ the newer terminology.
[J-69-2018] - 4

opportunity to create an evidentiary record in support of their positions. PCRA Ct. Op., 

1/26/06, at 5. 

Appellant appealed to this Court, and thereupon filed an application requesting we 

remand the case to the PCRA court for a full hearing on Appellant’s Atkins claims. On 

July 7, 2006, we issued a per curiam order remanding the matter to the PCRA court for 

further proceedings. Between November 2008 and December 2013, the PCRA court held 

a series of evidentiary hearings. Multiple witnesses testified, including three experts on 

behalf of Appellant, and two experts on behalf of the Commonwealth. 

Upon consideration of the evidence, the PCRA court concluded Appellant failed to 

establish by a preponderance of the evidence that he suffered intellectual disability

sufficient to disqualify him from imposition of the death penalty. On December 9, 2016, 

Appellant filed a notice of appeal, and the matter returned to this Court. Appellant filed

ancillary motions noting the absence of a written order or written opinion from the PCRA 

court. We again remanded the matter to the PCRA court, directing it to issue a written 

order and clarify whether it intended to file a written opinion. The PCRA court issued its 

written opinion on October 31, 2017, and the matter is ripe for decision.

II. Atkins issue - standard of review and legal principles

Our standard of review of a lower court’s determination of an Atkins claim is as 

follows:

A question involving whether a petitioner fits the definition of 

mental retardation 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 therefrom 

is clearly erroneous. We choose this highly deferential 
[J-69-2018] - 5

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, 61 A.3d 979, 981 (Pa. 2013)). Additionally, the scope of our review is limited to

the findings of the PCRA court and the evidence of record viewed in the light most 

favorable to the prevailing party. Commonwealth v. Duffey, 889 A.2d 56, 61 (Pa. 2005).

Before proceeding to the specific evidence and the PCRA court’s decision, a 

review of the case law following the United States Supreme Court’s seminal decision in 

Atkins is useful for an understanding of the development of the principles applicable to a 

determination of whether a person is intellectually disabled.

In 2002, the United States Supreme Court determined in Atkins that the Eighth 

Amendment prohibition against cruel and unusual punishment precluded imposition of 

the death penalty on individuals with an intellectual disability. Significantly, Atkins left the 

task of defining intellectual disability for Eighth Amendment purposes to the various 

States in the first instance. In the absence of legislative action, this Court, in Miller,

established a three-pronged definition. We held an individual who seeks relief under 

Atkins bears the burden to show by a preponderance of evidence that he or she is 

intellectually disabled as defined by either the American Psychiatric Association in its 

Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1992) (DSM-IV), or the 

American Association of Mental Retardation (AAMR), since renamed the American 

Association on Intellectual and Developmental Difficulties (AAIDD), in MENTAL 

RETARDATION: DEFINITION, CLASSIFICATION, AND SYSTEMS OF SUPPORTS 1 

(10th ed. 2002). From those definitions, we identified three components of proof: 1) 

significant below average intellectual functioning, 2) significant adaptive deficits, and 3) 

onset by age 18. Id. at 153. 
[J-69-2018] - 6

In further clarifying these components based upon the medical consensus 

reflected in the DSM-IV and AAIDD, we noted that a limitation in intellectual capability 

amounting to disability is reflected by IQ scores of at least two standard deviations (30 

points) below the mean (100), taking into consideration any standard error of 

measurement [SEM]6for the assessment instrument employed. Id. at 154. We explained

that, under the AAIDD or DSM-IV, these results are not sufficient in and of themselves 

but must be considered in conjunction with limitations in the subject’s adaptive behavior 

in areas such as conceptual, social, and practical skills. Id. 

In subsequent cases, we have applied these standards. In Williams, we affirmed 

a PCRA court’s finding that Williams was intellectually disabled based on non-diagnostic 

childhood testing, and notwithstanding Williams had strong skills in certain distinct 

categories. Williams, 61 A.3d at 240-42. In Hackett, we reversed the PCRA court’s 

determination that Hackett was intellectually disabled because the court equated 

borderline intellectual functioning with intellectual disability and because the record failed 

to show significant deficits in adaptive functioning. Hackett, 99 A.3d at 35. In Bracey, we 

affirmed the PCRA court’s finding of intellectual disability. Bracey, 117 A.3d at 76. 

Therein we found support for the court’s finding that proration of partial test scores is 

 

6 We have previously explained the definition of SEM as follows:

The SEM is ‘a unit of measurement: 1 SEM equates to a 

confidence of 68% that the measured score falls within a given 

score range, while 2 SEM provides a 95% confidence level[.]’

Hall, at 1995 (citation omitted). The ‘given range’ for 1 SEM 

is thus 5 points, within 2 1⁄2 above or below the articulated IQ 

score; the range for 2 SEM is 10 points, within 5 points above 

or below the IQ score. ‘The larger range logically engenders 

more confidence that it encompasses the relevant IQ.

Bracey, 117 A.3d at 274.
[J-69-2018] - 7

generally inappropriate for diagnostic purposes. Id. at 284. Also in Bracey, we cited with 

limited approval the case of Ex Parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004).7 Id.

at 286, See also Hackett, 99 A.3d at 44 (Castille, C.J. concurring), Commonwealth v. 

DeJesus, 58 A.3d 62 (Pa. 2012). We held that consideration of the factors enumerated 

in Briseno was discretionary with a PCRA court in addressing claims of malingering by a 

defendant asserting an Atkins claim. Id. at 287. Ultimately, we concluded the issue was 

not central to the PCRA court’s findings. Id. 

 

7 The Briseno court deemed that an inquiry into adaptive behavior criteria was highly 

subjective and advanced a series of factors for courts to consider in evaluating evidence. 

Those factors consist of the following:

Did those who knew the person best during the 

developmental stage—his family, friends, teachers, 

employers, authorities—think he was mentally retarded at that 

time, and, if so, act in accordance with that determination?

Has the person formulated plans and carried them through or 

is his conduct impulsive?

Does his conduct show leadership or does it show that he is 

led around by others?

Is his conduct in response to external stimuli rational and 

appropriate, regardless of whether it is socially acceptable?

Does he respond coherently, rationally, and on point to oral or 

written questions or do his responses wander from subject to 

subject?

Can the person hide facts or lie effectively in his own or others’ 

interests?

Putting aside any heinousness or gruesomeness surrounding 

the capital offense, did the commission of that offense require 

forethought, planning, and complex execution of purpose?

Briseno, 135 S.W.3d at 8-9.
[J-69-2018] - 8

In 2014, the United States Supreme Court decided Hall v. Florida, 572 U.S. 701

(2014). Therein the Court determined that while Atkins afforded the States leeway in 

applying the decision in Atkins, the States did not have unfettered discretion and must be 

guided by the medical community’s diagnostic framework. Id. at 721. Further, the Court 

in Hall held that IQ scores must be viewed accounting for the SEM applicable to the 

testing used. Id. at 722-23. In Brumfield v. Cain, 135 S. Ct. 2269 (2015), the Court 

reaffirmed the holding in Hall that an IQ score of 75 alone, cannot foreclose further inquiry 

into other prongs. Brumfield, 135 S. Ct. at 2277-78. The Court also found the record 

demonstrated Brumfield raised a question of adaptive function sufficient to require a 

hearing on his Atkins claim. Id. at 2283.

Most recently, the United States Supreme Court decided Moore on March 28, 

2017. In the State proceedings, the trial court determined Moore to be intellectually 

disabled and ineligible for the death penalty. The State appealed, and the Texas Court 

of Criminal Appeals reversed, criticizing the habeas judge’s reliance on the most current 

AAIDD diagnostic test rather than on the Briseno factors. Moore appealed to the United 

States Supreme Court. The United States Supreme Court reversed and remanded,

rejecting the Texas Court of Criminal Appeals’ analysis as flawed in a number of ways. 

The Court again re-affirmed its holding in Hall. “Hall indicated that being informed by the 

medical community does not demand adherence to everything stated in the latest medical

guide. But neither does our precedent license disregard of current medical standards.” 

Moore, 137 S. Ct. at 1049. The Court also explained that Hall and Brumfield established 

that IQ test scores must be considered while accounting for any SEM. Id. at 1043. It 

further explained that “the presence of other sources of imprecision in administering the 

test to a particular individual . . . cannot narrow the test-specific standard error range.” Id.

at 1049. The Court also faulted the Texas court’s focus on Moore’s adaptive strengths. 
[J-69-2018] - 9

It noted, “[c]linicians . . . caution against reliance on adaptive strengths developed in a 

‘controlled setting’ as a prison surely is.” Id. at 1050. The Court disapproved of the Texas

court’s conclusion that Moore’s traumatic childhood contraindicated a finding of disability 

when, again, clinicians identify traumatic experiences as a risk factor for intellectual 

disability. Id. at 1051. Finally, the Court held that the Briseno factors impermissibly 

substitute a political consensus on who should be exempt from the death penalty for

objective medical standards. Id. The Court noted that the Briseno factors represent an 

outlying position among the states, citing this Court’s Bracey decision as another such 

outlier in authorizing consideration of the factors. Id. at 1052. The Court reaffirmed its 

central tenet that “[t]he medical community’s current standards supply one constraint on 

States’ leeway [in enforcing Atkins]. Reflecting improved understanding over time . . . 

current manuals offer ‘the best available description of how mental disorders are 

expressed and can be recognized by trained clinicians.’” Id. at 1053 (citations omitted). 8

With this background in mind, we proceed to summarize the evidence presented

in the instant matter. 

III. The Atkins hearing testimony

 

8 Following the United States Supreme Court’s remand in Moore, the Texas Court of 

Criminal Appeals again determined that Moore was not intellectually disabled, and was 

therefore eligible for the death penalty. Moore appealed. On February 19, 2019, the 

United States Supreme Court decided Commonwealth v. Moore, 586 U.S. ___, 2019 WL 

659798, (2019) (per curiam). The Court reiterated the key holdings from its 2017 

decision, and noted the Texas Court of Criminal Appeals’ new determination was 

inconsistent with that decision. The Court found the Texas Court of Criminal Appeals

repeated the same errors of analysis that had been previously rejected. Excising the 

faulty analysis, the Court found there “leaves too little that might warrant reaching a 

different conclusion than did the trial court.” Id. at *5. Accordingly, it reversed the order 

of the Texas Court of Criminal Appeals.
[J-69-2018] - 10

Appellant presented the testimony of various lay witnesses9 about their 

recollections of Appellant’s chaotic upbringing, his abilities in performing tasks, following 

directions, interacting with peers, and other anecdotal information about Appellant 

throughout the years. Dolores Jones, Appellant’s mother, testified that Appellant was the 

oldest of her 10 children, and that she was 17 years old at the time of his birth. N.T., 

Atkins Hearing 11/12/08, at 28-29. Jones drank regularly during her pregnancy. Id. at 

29-30. The year after Appellant’s birth, Jones married William Jones, with whom she had 

three more children in as many years. Id. at 46-47. In 1972, Jones stabbed and killed 

William Jones. The children were in the home at the time. Id. at 51. Jones was convicted 

of voluntary manslaughter and was sentenced to 12 years’ probation. Id. By 1980, Jones 

had six more children with two different men. Id. at 52-53. At some point, Appellant went 

to live primarily with his paternal grandmother.

In general, the family witnesses described Appellant as slow relative to children of 

his age. Id.,11/12/08, at 32-33; id.,11/13/08, at 155; id.,1/9/09, at 6. Peers picked on and 

bullied him for being slow. Id., 11/12/08, at 35-36, 147, 162-63; id.,1/9/09, at 8, 33, 47. 

Appellant did not comprehend his schoolwork and had his homework done for him. Id. at 

34-35, 165. Appellant could only tell time from a digital display. Id., 11/12/08, at 37. 

Appellant was largely a follower, particularly in his relationship with the co-defendant. Id., 

11/12/08, at 145, 192; id.,11/13/08, at 165; id.,1/9/09, at 46. He generally associated with 

younger children. Id.,1/9/09, at 30-31. Appellant needed prompting to maintain personal 

hygiene. Id., 11/12/08, at 167-68, 189; id.,11/13/08, at 189; id.,1/9/09, at 9. Appellant 

could not read well. Id., 11/12/08, at 165, 190; id.,11/13/08, at 168; id.,1/9/09, at 32, 47-

 

9 These witnesses included, Dolores Jones, Appellant’s mother; Leslie Murphy, the 

mother of Appellant’s three children; Kevin Moore, Appellant’s cousin; Linston Cox, 

Appellant’s Uncle; Julius Moore, Appellant’s Uncle; Tameka Stevens, Appellant’s 

childhood friend; and Lawrence, Tanya, and James Jones, Appellant’s half-siblings.
[J-69-2018] - 11

48. Adults avoided sending him on errands that required reading or making change, 

which he was unable to perform. Id., 11/12/08, at 36-37, 169, 189; id.,11/13/08, at 193; 

id.,1/9/09, at 10. 

Otis Peterkin, a fellow inmate at State Correctional Institutes at Huntington, 

Pittsburgh, and Greene, testified about Appellant’s limited ability to read or write, and 

about his assistance to Appellant in drafting and reading legal correspondence and 

grievances. Id., 11/12/08, at 222-234. He testified about his efforts to teach Appellant to 

copy and write the alphabet and then copy sentences, so some of the documents could 

appear in Appellant’s handwriting. Id. Peterkin also connected Appellant with another 

inmate, who had just passed his GED exam, to help him with his educational aspirations. 

Id. at 238-240. 

The Honorable William Meehan, Jr., who was Appellant’s trial counsel before his 

eventual ascension to the bench of the Court of Common Pleas, testified. He related that 

after he represented Appellant for a time and his contact with Appellant was more frequent 

and prolonged, he discerned that Appellant’s passive, mild, and cooperative manner 

masked a lack of comprehension of the proceedings and various aspects of the trial and 

defense. Id., 11/13/08, at 5. Attorney Meehan was also concerned given the academic 

records he reviewed. Id. at 18-19. Appellant repeated the first grade, and twice failed 

the seventh grade before dropping out of school. Id. Accordingly, Attorney Meehan, with 

leave of court, arranged for an evaluation of Appellant’s intellectual functioning, the results 

of which formed the basis for a midtrial suppression motion, and for mitigation during the 

penalty phase of the trial. Id. at 22-23. Attorney Meehan engaged the services of Mark 
[J-69-2018] - 12

Molyneaux10, who administered a Weschler Adult Intelligence Scale Revised [WAIS-R] 

test, which yielded an overall score of 69. 

Appellant offered the testimony of two expert witnesses in his initial presentation. 

Dr. Jethro Toomer, a clinical and forensic psychologist, explained that he was asked to 

offer an opinion regarding Appellant’s adaptive functioning and the relation of any deficits 

to a diagnosis of intellectual disability. To do so, he reviewed prior evaluations, court 

records, school records, Department of Correction (DOC) records, and family affidavits. 

Dr. Toomer also evaluated Appellant using the Scales of Independent Behavior Revised 

(SIB-R). He performed the SIB-R with Appellant, Appellant’s mother, and Appellant’s 

grandmother. Dr. Toomer explained the SIB-R is an accepted tool to evaluate adaptive 

functioning. Id. at. 63-64. Its categories correspond to the social, conceptual, and 

practical skill areas identified in the AAMR and similar designations in the DSM-IV. Id. at

64-68. The SIB-R provides a global assessment appropriate for diagnostic purposes, 

where other tools may have a different focus, such as treatment, or programming. The 

assessment was administered in long form individually with Appellant’s mother and 

grandmother because they were in a position to observe Appellant at the respective ages 

he was while he resided with each of them. The measure of adaptive functioning is made 

relative to the overall community, not an isolated controlled environment, such as prison. 

The short form test administered to Appellant reflected a broad age equivalent 

independent functioning of nine years and two months. Id. at 78. To meet the definition 

of intellectual disability, deficits in at least two areas identified in the DSM-IV are required. 

Dr. Toomer testified his evaluation revealed deficits in 14 areas. Id. at 64- 65. Dr. Toomer 

noted that school records, which showed problems with attentiveness, focus, 

 

10 Dr. Molyneaux, a psychologist, had a master’s degree at the time he was retained, 

earning his doctorate sometime thereafter.
[J-69-2018] - 13

achievement, and personal relationships, confirmed his findings. Id. at 116-122. Dr.

Toomer also found the records of the DOC to be corroborative, including an entry by Dr. 

Dorothy Gold, a DOC managing psychologist, that Appellant was “known to be mentally 

retarded.” Id. at 125. From his assessment and the information reviewed, Dr. Toomer 

concluded, with a reasonable degree of professional certainty, that Appellant had a 

lifelong history of impairment of adaptive functioning. 

Dr. George McCloskey, psychologist and Director of Psychological Research at 

the Philadelphia College of Osteopathic Medicine, reviewed the various tests

administered to Appellant and the available records in order to form an opinion as to 

whether Appellant met the definition for intellectual disability. Id., 11/9/09, at 19-20. He 

explained the WAIS-R test performed by Mr. Molyneaux resulted in a verbal sub-score of 

72 and a performance sub-score of 68 for a composite score of 69. Id. at 21. He noted

Mr. Molyneaux described the testing conditions in detail, expressing confidence in the 

validity of the test’s administration. Id. at 35. The WAIS-R testing administered in Prison 

the following year consisted only of the verbal component and yielded a sub-score of 72, 

consistent with the earlier sub-score result. Id. at 22. Dr. McCloskey also reviewed the 

result reached by a WAIS-III test administered by Dr. Stephen Berk in 2005. Id. at 24. 

These tests have a SEM of plus or minus five points. 

Dr. McCloskey explained that the tests are periodically revised and re-normed to 

reflect currency with the knowledge and circumstances of the general public. Id. at 37-

38. The 1987 and 1988 tests used a version re-normed in 1978 and the 2005 test 

employed a version re-normed in 1995.11 Id. at 40-41. Dr. McCloskey cited studies 

discussing the “Flynn Effect” which measures the overall drift of test scores in the 

 

11 The 1978 re-norming resulted in version II of the test later revised as WAIS-R and the 

1995 re-norming resulted in version III. 
[J-69-2018] - 14

population between each re-norming of the measuring tests. Id. at 38-39. The WAIS-IV 

manual contains data for this effect between the -III and the current -IV versions reflecting 

an increase of about .3 point per year. Id. at 57-58. Although acknowledging that it is not 

always applied, Dr. McCloskey opined that best practice would be to account for this 

effect with a downward adjustment of the scores, which in the three subject tests would 

mean a three point downward adjustment. Id. at 65-67. 

Dr. McCloskey also testified that the fact Appellant achieved his GED in prison did 

not disprove the diagnosis of intellectual disability. Id. at 72. He explained that Appellant 

only passed on his second try after 14 years of preparation in a structured supportive 

setting. He opined that his review of the essay portion of Appellant’s GED exam reflects

a 4th to 5th grade level. Id. at 72-73. He also noted that the areas of improvement in the 

2005 IQ test coincided with areas relevant to his GED study. Id. at 84-85. There was 

little or no improvement in conceptual relations, comprehension, social reasoning, or 

understanding communication. Id. Dr. McCloskey opined that the failure of Appellant’s 

schools to designate him as in need of special education did not negate a diagnosis of 

intellectual disability, hypothesizing a number of possible reasons. Id. at 99-101. Dr. 

McCloskey also relied on the findings of Dr. Toomer and the DOC records to confirm his 

conclusions that Appellant meets the definition for a diagnosis of intellectual disability. 

Id. at 106. 

The Commonwealth offered the testimony of Dr. Paul Spangler, a psychologist 

employed with the Philadelphia Department of Mental Retardation. Dr. Spangler disputed 

that IQ tests closer to the age of 18 had greater significance than did ones performed 

more recently. Id., 11/16/09, at 16-17. He questioned whether the conditions present 

during Mr. Molyneaux’s testing might call into question the result. Id. at 19-20. He noted 

the test was performed at night in the midst of Appellant’s trial. Id. He further noted that 
[J-69-2018] - 15

Appellant did not have his eyeglasses at the time so that he was described as having to 

squint. Id. at 21-22. Dr. Spangler opined that this might have depressed the result. Id. 

He also noted that the 1987 test omitted, without explanation, a “block design” segment. 

The comparable segment in the 2005 test showed a score in the normal range. He opined 

that the omission might also have skewed the final score. Id. at 23-24. Dr. Spangler also 

stated that he would not adjust a test score based on the Flynn Effect, but would address 

it in the comments if relevant to the age of the test used. Id. at 31. Dr. Spangler also 

questioned Dr. Toomer’s result of the SIB-R. He explained that the computer tabulation 

assesses for current age, while Dr. Toomer geared the questioning to earlier ages. Id. at 

43. He stated the SIB-R is not a developmental scale but a present assessment. Id. Dr. 

Spangler also questioned the relevance of the school records in this case, which reflected 

Appellant’s extensive absences and his unstable home life that could account for his

failure to achieve. Id. at 61-62, 68-69. Dr. Spangler also noted portions of the DOC 

records that reflected Appellant with normal intelligence and adaptations, such as 

maintaining a job involving an 18-step protocol, and passing a GED exam. Id. at 76-77. 

Dr. Spangler expressed an opinion that Appellant is not intellectually disabled.

The Commonwealth also offered the testimony of Dr. Leigh Hagan, a clinical and

forensic psychologist, to offer an opinion relative to methods and ethics. Dr. Hagan

testified that it was not accepted practice to apply any correction for the Flynn Effect in 

scoring IQ tests. Id., 9/16/10, at 41-42. He noted the goal is to use the most current 

version of the testing instrument and restrict any consideration of the Flynn Effect to the 

comments. Id. He noted data showed the effect was neither constant nor predictable. 

He also testified that it is the general practice to rely on the most recent testing. Id. at 83. 
[J-69-2018] - 16

He acknowledged that the WAIS-IV manual contains data for the Flynn Effect but has no 

instructions to adjust scoring. Id. at 91-92.

12

 

In rebuttal, Dr. Kathleen Ross-Kidder, a clinical psychologist on the faculty of 

Georgetown and George Washington Universities, testified that the Flynn Effect is taught 

as part of the curriculum and that it would be reliable to use in scoring adjustment. Id., 

12/2/13, at 54-56. She also met with Appellant to achieve a general clinical impression

through conversation and picture test cards used only as an assessment aid. Id. at 58-

59. Dr. Ross-Kidder testified that based on data reflecting requests for special 

accommodation in taking the GED, which includes requests based on intellectual 

disability and attendant pass rates, it is probable that intellectually disabled individuals 

have passed the GED test. Id. at 37-39, 45. However, she could not cite a specific 

example. Dr. Ross-Kidder concluded that Appellant possessed limited vocabulary, areas 

of interest, and perception, and that he displayed no indication of higher cognitive 

functioning. Id. at 59. 

IV. The PCRA court opinion13

The PCRA court credited the testimony of Dr. Spangler that the conditions 

surrounding the administration of the 1987 WAIS-R test depressed the score. The court 

noted that Appellant’s expert witnesses acknowledged that such conditions could affect 

 

12 The Commonwealth also offered testimony and stipulations from DOC personnel

attesting that the GED was appropriately administered and no special accommodation 

requested. 

13 As observed by both parties, the PCRA court’s written opinion borrowed significantly 

from the Commonwealth’s post-hearing memorandum, adopting its arguments and 

incorporating sections of its language. See Commonwealth’s Brief at 20-21 n.6 (listing 

portions of the Opinion adopting corresponding portions of the memorandum from which 

language was incorporated verbatim). 
[J-69-2018] - 17

results. The court also found that the fact Appellant did not have his glasses during the 

testing may have affected the results. Additionally, the court credited Dr. Spangler’s 

opinion that the omission of the block design subtest, coupled with the results for that 

subtest in the 2005 test, further called into question the 1987 results. 

The court determined that the three verbal subtests performed by the DOC were 

irrelevant. The WAIS-R manual instructs for proration in instances of five verbal subtests, 

but not for only three. Accordingly, the court found the test results could not be used to 

assess a full-scale IQ score. The Court found the 2005 WAIS-III test to be the only reliable 

result, which, when viewed with consideration for the plus or minus 5-point SEM, does 

not fall into the definition of intellectual disability. All performance subtests were 

administered with the exception of the optional block assembly, and 13 verbal subtests, 

so the score did not need to be pro-rated. The court also favored the 2005 score because 

it was from the most recent version of the WAIS test. The court also determined that 

adjustment of scores to account for the Flynn Effect is not standard practice. 

The PCRA court next concluded that Appellant did not demonstrate significant 

deficits in adaptive functioning. The court found significant the fact that school authorities 

never identified Appellant as possessing learning disabilities despite a system in place to

do so. The court noted this was despite the records showing numerous contacts with the 

family regarding Appellant’s attendance, need for glasses, and other issues. The court 

concluded the poor performance and achievement were due to excessive absences and 

do not support an inference of intellectual disability. The court noted that Appellant’s 

California Achievement Test scores were consistently above the 2% range in which 

individuals with intellectual disability score. 

The PCRA court found the testimony of Appellant’s family and friends to be 

unreliable. The court concluded the individuals were biased, with an interest in the 
[J-69-2018] - 18

outcome; there were questions about whether they had assistance in preparing affidavits; 

and their testimonies contained inconsistencies and selective memory. 

The court discounted the relevance of Dr. Toomer’s evaluation. The court credited 

Dr. Spangler with greater expertise and objectivity. Additionally, the court found that there 

were errors in the administration and scoring of the SIB-R test. It faulted Dr. Toomer’s 

failure to coordinate the respective responses from Appellant, his mother and 

grandmother. The lack of coordination made it impossible to know who gave which 

response. The court also found Dr. Toomer’s assessment of historical adaptive 

functioning inconsistent with the current assessment the SIB-R is designed to assess. 

Even applied retrospectively, the court found Dr. Toomer failed to specify the timeframe 

to which particular questions pertained, making any conclusion drawn from those

responses unreliable. The court noted that Dr. Toomer concluded that Appellant scored 

an adaptive functioning of nine years two months. However, Dr. Toomer did not specify 

the point in time to which that score pertained, responding only that it applied “prior to age 

18.” Additionally, the court found that Dr. Toomer did not score the test in accordance 

with the SIB-R manual and instructions. For example, rather than instructing the

respondents to estimate a level of performance for a task, they had not observed or 

performed before, Dr. Toomer entered a zero score. Similarly, some questions were left 

blank, contrary to the instructions, and given a zero rather than an estimated score. The 

court also found that inconsistent patterns of responses in the test indicated problems 

with its administration. 

The PCRA court found that DOC records do not support a showing of significant 

deficits in adaptive functioning. Various mental status reviews from 2000 and 2003 mark 

Appellant’s intelligence as normal or between normal and low, and none indicate 

intellectually disabled. The reports also indicate normal for other categories, including 
[J-69-2018] - 19

perception, insight, judgment, and memory. The court noted that Appellant navigated the 

procedure for numerous grievances while in prison. The court found that Appellant’s 

ability to perform a job cleaning up blood and bodily fluid spills, which entails a specific 

multi-step protocol, belied any deficit in adaptive functioning. 

In light of these findings, the court also concluded that Appellant failed to establish 

the onset of any intellectual disability prior to age 18. As additional support for its 

conclusion, the court considered the Briseno factors. Particularly, the court found the first 

factor significant, i.e., whether witnesses who knew the defendant expressed and acted 

on their concerns about the defendant’s intellectual functioning at the time as opposed to 

merely testifying about their current recollection of those disabilities. 

The PCRA court credited Appellant’s attainment of his GED as contraindicating 

intellectual disability. The court noted this to be an issue of first impression in this 

Commonwealth, but cited cases from other jurisdictions that noted the earning of a GED 

is incompatible with a claim of intellectual disability. PCRA Ct. Op. at 55-57 (collecting 

cases). The court outlined the standards and procedures for the GED as further 

evidencing this incompatibility. The court noted Appellant’s particular progress in 

preparing for each taking of the test and his results. 

Based on these findings, the PCRA court concluded Appellant failed to prove by a 

preponderance of the evidence that he met the diagnostic definition for being intellectually 

disabled. Accordingly, the court dismissed Appellant’s PCRA petition relative to his Atkins

claim. 

V. Appellant’s Atkins argument
[J-69-2018] - 20

Appellant argues the PCRA court erred in its consideration of the evidence 

presented during the Atkins hearings in four ways: 1) by applying the since discredited 

Briseno factors; 2) by focusing on Appellant’s adaptive strengths instead of the medically 

required focus on deficiencies; 3) by considering Appellant’s adaptation to his life in 

prison; and 4) by favoring expert opinions offered by witnesses who never met with or 

personally evaluated Appellant. Appellant argues the PCRA court abused its discretion 

by discounting the 1987 and 1988 tests, based on perceived flaws in their administration,

to hold that the 78 full-scale score from the 2005 test precluded a finding the Appellant 

met the definition for intellectual disability. Appellant notes that the United States 

Supreme Court in Hall rejected the notion of using an IQ score as itself conclusive in 

determining the existence or absence of intellectual disability. The cases, Appellant 

argues, require that a determination be guided by established medical practice in 

accordance with core national consensus. Appellant noted this Court in Miller similarly 

eschewed relying on a particular cutoff IQ score as conclusive, holding that the practice 

effect and the SEM may encompass scores of 78 and 81 by individuals with intellectual 

disability. Miller, 888 A.2d at 631-32. 

Appellant argues that the PCRA court’s determination, that the conditions under 

which the 1987 test was administered as compromising the result, ignored Mr. 

Molyneaux’s comments attendant with his report that the conditions were satisfactory and 

the results accurately reflected Appellant’s functioning. Mr. Molyneaux was the individual 

actually present and in a position to assess those conditions. Further, the PCRA court’s 

reliance on the fact Appellant was not wearing glasses during the 1987 testing was 

misplaced according to Appellant. He notes Dr. McCloskey testified that there is no 

reading required for the WAIS-R. The fact Appellant may have needed to squint to see 

testing materials does not negate the comments by Mr. Molyneaux in his report that the 
[J-69-2018] - 21

testing conditions were satisfactory. Further, Appellant notes that Dr. Spangler testified 

that omission of a single subtest does not invalidate a result. Therefore, Appellant 

contends, the PCRA court abused its discretion in adopting wholesale the 

Commonwealth’s parsed criticism of the 1987 test to conclude the result unreliable. 

Appellant similarly argues the court’s rejection of the DOC testing as irrelevant is 

flawed. Appellant notes that Dr. McCloskey agreed the limited testing performed would 

not independently form a basis for an overall IQ score. However, the results of the

subtests are valid measures, relevant as corroboration of the comprehensive test just a 

year earlier. Appellant argues the scores show consistency with Appellant’s 1987 results 

on the same subtests, further supporting the reliability of those results. Therefore, 

Appellant argues, the court erred in isolating the 2005 test results as the only reliable 

evidence of Appellant’s intellectual functioning. Appellant maintains this finding 

contradicts the record and controlling precedent. 

Appellant references comments in the report by Dr. Berk, who administered the 

2005 test, that the score “overstates [Appellant’s] actual intellectual status” as a result of

“increased stimulation while in prison.” Appellant’s Brief at 16 (quoting PC Ex.C-19 at 3). 

Appellant notes Dr. Berk’s further observation that Appellant “knows words, but not their 

meanings. He also doesn’t understand information very well.” Id. Dr. Berk concluded 

“[Appellant] still has significantly sub-average intellectual functioning.” Id. Appellant 

argues Dr. Berk’s recognition of the effect of the prison environment is consistent with Dr. 

McCloskey’s explanation of how Appellant’s years in preparation for the GED could result 

in his passing despite intellectual disability. Appellant argues the PCRA court’s failure to 

consider Dr. Berk’s own observations and impressions of the 2005 test results did not 

comport with professional norms of the medical and psychological fields. 
[J-69-2018] - 22

Appellant also claims the PCRA court abused its discretion in rejecting

consideration of the Flynn Effect as irrelevant. Appellant argues the notion that over time 

the IQ score in the population increases unless the test is updated is well recognized in 

the profession. As the Court in Hall recognized, IQ testing is imperfect. Id. at 18 citing 

AAIDD, Intellectual Disability: Definition, Classification, and Systems of Support (11th ed. 

2010) at 37-38 (“best practices require recognition of a potential Flynn Effect when older 

editions of an intelligence test (with corresponding older norms) are used in the 

assessment or interpretation of an IQ score”). See also DSM-V at 37 (“Factors that may 

affect [IQ] test scores include practice effects and the ‘Flynn Effect’ (i.e., overly high 

scores due to out-of-date test norms).”); AAIDD-11th, ch. 4 at 35-38). Appellant cites 

several cases approving consideration of the Flynn Effect. Id. at 18-19. Finally, Appellant 

notes that even the Commonwealth’s experts acknowledged the underlying validity of the 

Flynn Effect but differed as to its application. Dr. Spangler testified that although he would 

not adjust the score of a test, commenting on the Flynn Effect in the accompanying 

comments would be appropriate to aid in its interpretation. Id. (citing N.T., 11/16/09, at 

32.) Dr. Hagan made a similar representation. Id. (citing N.T., 9/16/10, at 42). Appellant 

notes that the PCRA court’s reliance on Commonwealth v. Riccardi, 3649 of 2009 

(Luzerne County CCP June 6, 2011) is inapt. While the court in that case refused to apply 

a mathematical adjustment for the test scores, the court did accept the validity of the 

Flynn Effect and acknowledged that it informed the court’s conclusion. Also, Riccardi was 

decided before Hall which admonished a failure to account for a confidence interval in the 

administered tests. For these reasons, Appellant asserts the PCRA court abused its 

discretion in completely rejecting the relevance of the Flynn Effect relative to the 

interpretation of 2005 test results. 
[J-69-2018] - 23

Appellant next argues the PCRA court’s analysis of the evidence concerning 

Appellant’s adaptive functioning is contrary to controlling precedent. In Williams, the 

United States Supreme Court held that, in accordance with professional standards, the 

focus for this prong of the test should be on the existence of adaptive weaknesses, if any, 

rather than strengths. Appellant argues the PCRA court essentially relied on specific 

achievements to evidence a lack of adaptive deficits. Appellant recounts the evidence 

from the lay witnesses, school records, and DOC records describing Appellant’s 

pervasive and continuing adaptive difficulties. Appellant contends these accounts are 

consistent with and corroborative of each other. The DOC records included evaluations

that determined Appellant to be “an inarticulate, concrete and intellectually impoverished 

man,” and “was known to be mentally retarded.” Id. at 27 (citing N.T., 11/13/08, at 125, 

143). In addition, the PCRA court’s reliance on Appellant’s filing of numerous grievances

ignored the testimony of Peterkin that he assisted Appellant in filling out that paperwork. 

Appellant argues the PCRA court erroneously focused on what Appellant could do, 

notwithstanding that a deficit need not be shown in all areas. This is why the United 

States Supreme Court precedent requires focus on deficits. In the same vein, Appellant 

argues the PCRA court abused its discretion in concluding the fact Appellant passed a 

GED exam precludes a diagnosis of intellectual disability. Besides erroneously focusing 

on capabilities rather than deficits, Appellant contends the court’s position ignores the 

totality of the circumstances surrounding Appellant’s taking of the exam. After receiving 

assistance for seven years in preparation, Appellant failed the exam on his first attempt. 

After another seven years, Appellant retook the exam and passed. As Dr. McCloskey

testified, the areas where Appellant improved in his 2005 IQ test coincided with the areas 

impacted by this extensive preparation for the GED.
[J-69-2018] - 24

Appellant asserts that a formal assessment such as the SIB-R is not required to 

establish adaptive deficits. A review of the totality of the data is required, which Dr. 

Toomer performed in his review of the school and DOC records and the affidavits from 

individuals with personal knowledge of Appellant. Thus, Appellant argues that even 

discounting the result of the SIB-R as a specific measure of Appellant’s deficits, the record 

is full of evidence supporting the conclusions of Drs. Toomer, McCloskey, and RossKidder. 

Finally, Appellant argues that in light of Moore, the PCRA court erred in its 

consideration of the Briseno factors to discount the evidence of the lay witnesses and the 

import of that evidence in showing Appellant’s adaptive deficits and the onset of his 

intellectual disability long before he turned 18 years old. 

 

VI. The Commonwealth’s Atkins argument

In its brief, the Commonwealth states it has changed its position on Appellant’s 

Atkins claim in light of recent United States Supreme Court precedent. The 

Commonwealth notes that the PCRA court’s written opinion borrows significantly from its 

post-hearing legal memorandum, including the Commonwealth’s urging of consideration 

of the Briseno factors, notwithstanding the United States Supreme Court decision in 

Moore several months earlier. The Commonwealth notes that during the pendency of 

this case, the United States Supreme Court decided the series of cases discussed above, 

further refining the contours of the holding in Atkins. The Commonwealth concedes its 

post-hearing memorandum and argument did not reflect the principles so clarified in Hall, 

Brumfield and Moore. By adopting its argument, the Commonwealth contends the PCRA 

court failed to consider three fundamental propositions advanced in those cases. First, 
[J-69-2018] - 25

in evaluating whether an individual is intellectually disabled, there should not be an 

overemphasis on IQ test scores. Second, in assessing an individual’s adaptive behavior,

courts should focus on the existence of any adaptive deficits and not rely on adaptive 

strengths to deny relief. Third, courts should be guided by the prevailing diagnostic and 

assessment tools and principles rather than lay perceptions of what constitutes 

intellectual disability.

14

The Commonwealth particularly highlights the similarities between the facts and 

expert opinion evidence in this case with facts and expert opinion evidence in Moore. 

Moore’s IQ scores included one score of 78 with none under 70. The Commonwealth

also deems comparable its witnesses’ overemphasis on Appellant’s strengths, including 

passing a GED exam, and maintaining prison employment, with how the State’s expert 

witness in Moore “emphasized Moore’s adaptive strengths in school, at trial and in 

prison.” Commonwealth Brief at 31 (quoting Moore, 137 S. Ct. at 1047). The Court in 

Moore held that an IQ score in the ranges present in that case did not end the inquiry, 

reaffirming Hall. It is necessary to consider other evidence of intellectual disability, 

particularly adaptive deficits, in line with accepted principles of the medical community. 

In this case, the Commonwealth maintains that the adaptive strengths focused on by the 

PCRA court are comparable to those focused on by the court in Moore, including the fact 

Appellant was never placed in a special needs class, and his ability to perform menial 

labor. 

The Commonwealth also concedes that the PCRA court’s reliance on the Briseno

factors compels reversal. Here, the PCRA court relied on the apparent failure of the lay 

witnesses to act on their asserted perceptions of Appellant’s deficits to discount the 

 

14 That is not to say that lay testimony about factual observations of an individual’s 

behavior is not relevant to an expert’s assessment of behavioral deficits.
[J-69-2018] - 26

existence of those deficits. This is squarely at odds with Moore’s admonition against

focus on non-clinical lay perceptions. The Commonwealth notes that the absence of 

services or intervention in Appellant’s circumstances is not surprising and is not a fair 

barometer of whether he was intellectually disabled. The Commonwealth cites the AAIDD 

summary of the challenges faced by individuals with intellectual disability. “People with 

[intellectual disability] experience great challenges in their learning and development, 

frequently have difficulty participating in activities of daily life in their communities, and 

are particularly vulnerable to exploitation by others.” Id. at 38 (quoting Intellectual 

Disability, Definition, Classification, and Systems of Support (11th Ed. 2010) at 110). This, 

the Commonwealth states, is consistent with the description of Appellant’s life prior to his 

arrest. The Commonwealth, on reevaluating the evidence, now contends Appellant met 

his burden in this case, and urges this Court to grant Atkins relief.15 

VI. Atkins discussion

Initially, we note this Court has recently explained that confessions of error by the 

Commonwealth are not binding on a reviewing court but may be considered for their

persuasive value. Commonwealth v. Brown, 196 A.3d 130, 146-149 (Pa. 2018).16

The Atkins hearing in this case spanned six years. After the conclusion of 

testimony, but before the PCRA court issued its decision orally, the United States 

 

15 The Commonwealth notes the outstanding disagreements among the experts on the 

issue of the Flynn Effect. However, the Commonwealth also maintains that, in light of 

other errors in the PCRA court’s analysis, it is unnecessary for this Court to resolve the 

issue of the relevance of evidence of the Flynn Effect in order to grant Appellant Atkins

relief.

16 In contrast to the Commonwealth’s position in Brown, the Commonwealth here does 

not argue that its current position binds this Court, or that it constitutes an unreviewable 

exercise of prosecutorial discretion. 
[J-69-2018] - 27

Supreme Court issued its decisions in Hall and Brumfield. After the PCRA court’s oral 

ruling, but before its written opinion, the United States Supreme Court issued its decision 

in Moore. The PCRA court references Hall in its opinion, but not Brumfield or Moore. As 

discussed above, the chief import of these cases is the central role of the societal 

consensus to rely on medical and professional expertise in defining and diagnosing

intellectual disability. The laws and practices disapproved in those cases deviated from 

that central principle by engrafting arbitrary or extraneous considerations into the 

analysis. Thus, Hall overturned a law that over-emphasized IQ test results where the 

medical consensus includes scores above 70 as consistent with intellectual disability 

where accompanied by severe adaptive behavior problems. Hall, 134 S.Ct. at 1994-95. 

In Brumfield the Court reaffirmed the principle in Hall, and also disapproved an analysis 

that factored an individual’s adaptive strengths to preclude a hearing on the existence of 

adaptive deficits. Brumfield, 135 S. Ct. at 2279-80. Additionally, the Court in Moore

condemned the same practices discussed in Hall and Brumfield and particularly 

disapproved reliance on the Briseno factors as an attempt to impose a consensus of the 

citizenry about who should be eligible for the death sentence rather than criteria accepted 

in the professional and medical community. Moore, 137 S. Ct. at 1053. 

The PCRA court also discounted the results of the 1987 WAIS-R test based on the 

possibility that testing conditions affected the result. In Moore, the State argued particular

circumstances justified disregarding the lower end of the SEM score. However, Moore

has clarified that “other sources of imprecision ... cannot narrow the test-specific standard 

error range.” Id. at 1049 (emphasis in original).

A review of the PCRA court’s opinion discloses it employed the same skewed 

focus. The court relied on the Briseno factors to conclude the absence of intervention by 

the lay witnesses was a reason to conclude an absence of any deficits. This reliance is 
[J-69-2018] - 28

clearly erroneous in light of Moore. The ability of lay persons to recognize intellectual 

disability, let alone know what steps to take to secure a diagnosis for supportive services, 

is not a part of the professional diagnostic criteria that courts have been directed to 

employ. The PCRA court’s emphasis on Appellant’s adaptive capabilities is similarly 

antithetical to the principles clarified in Hall, Brumsfield, and Moore. 

[T]he medical community focuses the adaptive-functioning 

inquiry on adaptive deficits. E.g., AAIDD–11, at 47 

(“significant limitations in conceptual, social, or practical 

adaptive skills [are] not outweighed by the potential strengths 

in some adaptive skills”); DSM–5, at 33, 38 (inquiry should 

focus on “[d]eficits in adaptive functioning”; deficits in only one 

of the three adaptive-skills domains suffice to show adaptive 

deficits); see Brumfield, 576 U.S., at ––––, 135 S.Ct., at 2281

(“[I]ntellectually disabled persons may have ‘strengths in 

social or physical capabilities, strengths in some adaptive skill 

areas, or strengths in one aspect of an adaptive skill in which 

they otherwise show an overall limitation.’ ” (quoting AAMR, 

Mental Retardation: Definition, Classification, and Systems of 

Supports 8 (10th ed. 2002))).

Id. at 1050 (emphasis in original).

Noting these shortcomings in the PCRA court’s analysis, we nevertheless 

recognize that the court was confronted with competing expert opinions and factual 

assertions.17 Under our standard of review, we afford great deference to the court’s 

credibility and factual determinations where there is support in the record. While we 

conclude the PCRA court made those findings and determinations, in part, on improper 

considerations, we cannot conclude what credibility and factual determinations the PCRA 

court would have found, applying a correct Atkins analysis. For this reason, our proper 

 

17 We agree with the Commonwealth that our resolution of this case does not require us 

to opine on the role of the Flynn Effect in the interpretation of IQ test results. We simply 

note here that the question of whether to consider the Flynn Effect should be informed by 

the current professional standards. Additionally, the question of whether to consider the 

Flynn Effect is distinct from how the effect should be considered.
[J-69-2018] - 29

course is to vacate the order of the PCRA court and remand for its reconsideration of the 

evidence in the existing record in light of the guidance provided by Hall, Brumfield, and 

Moore. 

VII. Remaining issues

Appellant argues the PCRA court erred in dismissing his remaining issues without 

a hearing. The PCRA Court determined Appellant’s petition with respect to these issues 

was untimely. 18

 

18Appellant states these issues as follows:

1. Whether the Court committed legal and factual error and 

abused its discretion in denying Atkins relief where the record 

evidence demonstrates Appellant is Intellectually Disabled 

and the death sentence violates the Eighth and Fourteenth

Amendments[.]

2. Whether the Court committed legal and factual error and 

abused its discretion in dismissing all other claims presented 

in the PCRA petition without a hearing where Appellant 

demonstrated that the petition was timely; that he meets a 

number of exceptions under the PCRA; that he is entitled to 

relief from his invalid conviction and sentence despite any 

failure to raise these claims in prior post-conviction

proceedings because he was denied his right to effective 

assistance of post-conviction counsel; and that he is entitled 

to relief or, in the alternative, an evidentiary hearing[.]

3. Whether the Court committed legal and factual error and 

abused its discretion in denying relief, discovery and/or an 

evidentiary hearing where prior PCRA counsel was ineffective 

in failing to raise multiple meritorious claims involving the 

violation of Appellant’s rights under 42 Pa. C.S. § 9711 and 

the Fifth, Sixth, Eighth, and Fourteenth Amendments, 

including:
[J-69-2018] - 30

 Appellant contends two exceptions to the PCRA’s jurisdictional time constraints 

apply.19 First, he avers that interference by government officials prevented him from 

timely raising most of his issues. To establish this exception, a petitioner must show that 

 

(a) The Prosecutor’s Peremptory Strikes Violated the 

Sixth, Eighth and Fourteenth Amendments.

(b) As a Result of Court Error, Counsel’s Ineffectiveness 

and Prosecutorial Misconduct, the Jury Never Heard 

Evidence Disputing the Prosecution’s Case and Supporting 

the Defense in Violation of the Sixth, Eighth and Fourteenth 

Amendments.

(c) Counsel’s Failure to Investigate, Develop and Present 

Available Mitigation Evidence and Effectively Argue the Case 

for Life Violated the Sixth, Eighth and Fourteenth 

Amendments.

(d) The Jury’s Consideration of an Invalid Aggravating 

Factor Violated the Sixth, Eighth and Fourteenth 

Amendments.

(e) The Penalty Phase Instructions Violated the Sixth, 

Eighth and Fourteenth Amendments;

(f) The cumulative prejudicial effect of the errors requires 

relief.

Appellant’s Brief at 2-3.

19 Although not argued in the context of meeting the timeliness exceptions to the PCRA, 

Appellant argues he is entitled to relief pursuant to Williams v. Pennsylvania, 136 S. Ct. 

1899 (2016), which was issued during the pendency of our remand of this PCRA appeal 

for a hearing on his Atkins claim. In Williams the United States Supreme Court held that 

former Chief Justice Castille’s failure to recuse in an appeal from a case in which he 

participated as district attorney was a violation of Williams’ due process rights. In his 

initial brief, Appellant claimed he is entitled to the same remedy. However, responding to 

the Commonwealth’s counter-arguments, Appellant concedes in his reply brief that this 

claim is premature. Appellant’s Brief at 1-2 (citing Commonwealth v. Lark, 746 A.2d 585, 

588 (Pa. 2000) (precluding the filing of new PCRA claims during the pendency of an 

appeal of a prior PCRA decision)). Accordingly, we do not consider this issue further.
[J-69-2018] - 31

“the failure to raise the claim previously was the result of interference by government 

official with the presentation of the claim in violation of the Constitution or laws of this 

Commonwealth or the Constitution or laws of the United States.” 42 Pa.C.S. § 

9545(b)(1)(i) (emphasis added). Appellant notes that, during his first PCRA, he submitted 

pro se filings with the PCRA court and with this Court on appeal, identifying several issues 

PCRA counsel had not raised and requesting new counsel. Appellant argues that these 

filings demonstrated that he was being denied his constitutional right to effective 

representation during his PCRA proceedings and appeal. In support, he cites 

Commonwealth v. Albrecht, 720 A.2d, 693, 699 (Pa. 1998) (holding that a rule based right 

to counsel requires an enforceable right to effective assistance of counsel). Appellant 

argues the Prothonotary for each court misapprehended his filings and erroneously 

treated them as hybrid filings, i.e., forwarding them to counsel without docketing them for 

court action in accordance with Commonwealth v. Kenny, 732 A.2d 1161, 1164 (Pa. 

1999) (holding remand for appointment of counsel is appropriate remedy when the right 

to appointment counsel has been effectively denied). Appellant also argues that his 

cognitive impairments create an extraordinary circumstance warranting relief based on a 

denial of effective assistance of counsel.20

Appellant mischaracterizes the facts and the case law. Appellant’s pro se filing 

with the PCRA court during the pendency of his first PCRA petition did enumerate and 

argue the merits of ten issues in addition to those contained in his amended PCRA petition 

prepared by appointed counsel. It did not, as Appellant contends, aver ineffective 

assistance by his first PCRA counsel or seek appointment of new counsel. See Amended 

 

20 The Commonwealth argues all but one of Appellant’s remaining issues could have been 

raised in his first PCRA and are therefore waived. The Commonwealth does not comment 

on the timeliness of Appellant’s PCRA petition relative to these issues.
[J-69-2018] - 32

PCRA Petition exhibit 1 (“Addendum of Alleged Errors in Support of Counsel’s Amended 

PCRA Ineffective Counsel Inter Alia”).21 On appeal from the dismissal, Appellant filed a 

second pro se filing with this Court. See Id. exhibit 2 (“Petition for PCRA Counsel’s 

Withdrawal Contingent Upon & Conformity With Defendant’s Ineffective Assistance of 

PCRA Counsel Claims. And For the Appointment of New Counsel by the Above Court”). 

Therein, Appellant again enumerated the issues he wished to pursue and faulted PCRA 

counsel as ineffective for failing to do so. However, Appellant did not file his pro se motion 

until July 28, 2004, 14 months after the filing of his counseled appellate brief and seven 

months after the Commonwealth filed its appellee’s brief. In accordance with the Rules 

pertaining to hybrid pro se filings, the Prothonotary forwarded the document to Appellant’s 

counsel without entering it in to the docket.22 As this Court has explained, appellate 

counsel’s issue selection cannot be determined to be ineffective prior to a resolution of 

the issues advanced. “[I]n this context, there can be no claim of ineffective assistance, 

and counsel need not be called upon to articulate a reasonable basis for not including the 

foregone claims.” Commonwealth v. Jette, 23 A.3d 1032, 1042 (Pa. 2011). 

 

21 Appellant, in his final paragraph of the referenced addendum, did “reserve” the right to 

further amend his petition and seek substitute counsel, but there is no evidence such 

subsequent request was filed with the PCRA court. 

22 Rule 3304 provides as follows:

Rule 3304. Hybrid Representation

Where a litigant is represented by an attorney before 

the Court and the litigant submits for filing a petition, motion, 

brief or any other type of pleading in the matter, it shall not be 

docketed but forwarded to counsel of record.

Pa.R.A.P. 3304.
[J-69-2018] - 33

Furthermore, the cases upon which Appellant relies did not involve hybrid 

representation. In Albrecht, after alleging his appointed PCRA counsel’s ineffectiveness, 

Albrecht obtained new counsel to appeal the denial of his PCRA petition. On appeal, his 

new counsel argued PCRA counsel was ineffective for failing to brief certain issues raised 

in the PCRA petition, resulting in waiver. Instantly, Appellant did not allege PCRA 

counsel’s ineffectiveness before the PCRA court, and only presented his claims of PCRA 

counsel’s ineffectiveness before this Court through a hybrid filing. Appellant’s reliance on 

Kenney is also misplaced. The process prescribed therein for appointment of new PCRA 

counsel concerned instances where a PCRA petitioner’s right to appeal had been 

completely foreclosed by existing counsel’s action or inaction. 

An indigent petitioner has the right to appointment of counsel 

to assist in prosecuting a first PCRA petition. Pa.R.Crim.P. 

1504(a). Where that right has been effectively denied by the 

action of court or counsel, the petitioner is entitled to a remand 

to the PCRA court for appointment of counsel to prosecute the 

PCRA petition. 

Kenney, 732 A.2d at 1164 (citations omitted). Instantly, Appellant’s right to appeal was 

not impaired. Rather, he takes issue with counsel’s issue selection.23 He has not shown 

that the action of the Prothonotary in forwarding his petition to counsel in accordance with 

Rule 3304 was illegal. Thus, we reject Appellant’s contention that government 

interference prevented him from timely raising his ineffective assistance of counsel 

issues.24 

 

23 Appellant did not assert a right to self-representation. In any event, such a request 

must be made before the filing of a counseled appellate brief. See Commonwealth v. 

Rogers, 645 A.2d 223, 224 (Pa. 1994) (holding a defendant has a right to proceed pro 

se, but a request to change status is untimely if initiated after a counseled brief has been 

filed on his or her behalf). 

24 In his hybrid pro se petition, Appellant identified 31 issues that he claimed PCRA 

counsel failed to pursue. Appellant does not attempt to correlate those issues with the 
[J-69-2018] - 34

Appellant also claims two of his issues, i.e., issues 3(a) and 3(b), fall under the 

newly discovered fact exception of Section 9545(b)(1)(ii). 

[S]ubsection (b)(1)(ii) has two components, which must be 

alleged and proved. Namely, the petitioner must establish 

that: 1) “the facts upon which the claim was predicated were 

unknown” and (2) could not have been ascertained by the 

exercise of due diligence.” 42 Pa.C.S. § 

9545(b)(1)(ii)(emphasis added). If the petitioner alleges and 

proves these two components, then the PCRA court has 

jurisdiction over the claim under this subsection.

Commonwealth v. Burton, 158 A.3d 618, 628 (Pa. 2017).

Additionally, any petition filed pursuant to any of these 

timeliness exceptions must be filed within 60 days of when the 

petition could have been presented. [T]he 60–day rule 

requires a petitioner to plead and prove that the information 

on which he relies could not have been obtained earlier, 

despite the exercise of due diligence.

Commonwealth v. Albrecht, 994 A.2d 1091, 1094 (Pa. 2010) (internal citations and 

quotation marks omitted). 

Appellant does not specifically identify the previously unknown facts in his 

discussion of the timeliness exception. Based on his discussion of the merits he 

apparently alludes to certain information the Commonwealth allegedly failed to disclose 

at the time of trial.25 However, Appellant does not state when he first learned of these 

facts or explain how he was prevented from discovering them earlier with due diligence.

 

issues stated in his current PCRA petition that he now claims he was prevented from 

raising in a timely PCRA petition.

25 These include a purported witness statement placing Appellant with her at the time the 

killings occurred, and the publication of a report identifying certain racially targeted voir 

dire training and practices by the Philadelphia District Attorney’s Office. Appellant’s Brief 

at 37, 43. 
[J-69-2018] - 35

Accordingly, Appellant has failed to meet his burden to show he qualifies for any 

of the exceptions to the jurisdictional timeliness constraints of the PCRA relative to his 

remaining issues. See Id.

VI. Conclusion

In summation, we conclude the PCRA court’s evaluation of the evidence in this 

case erroneously incorporated invalid and irrelevant considerations, tainting its 

conclusion. Specifically, the PCRA court misplaced its focus on Appellant’s adaptive 

strengths as negating the evidence of his adaptive deficits. The PCRA court also 

departed from the holding in Moore in its consideration of the 1987 WAIS-R test score, 

by disregarding the SEM due to “other sources of imprecision.” Moore, 137 S. Ct. at 

1049. Additionally, the PCRA court’s reliance on the Briseno factors, while informed by 

this Court’s prior cases is erroneous in light of Moore. Because conflicts remain in the 

testimony, we remand to the PCRA court to reconsider the existing record in this case in 

accordance with this opinion. Finally, we deem Appellant’s remaining issues untimely, 

and affirm the PCRA court’s dismissal of that portion of the PCRA petition.

Justices Donohue, Dougherty and Wecht join the opinion.

Chief Justice Saylor and Justices Baer and Todd did not participate in the 

consideration or decision in this case.