                           [J-76-2016][M.O. – Wecht, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                               EASTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                 :   No. 714 CAP
                                              :
                   Appellee                   :   Appeal from the Order dated August 13,
                                              :   2015 and entered on the docket on
             v.                               :   August 14, 2015, in the Court of
                                              :   Common Pleas, Allegheny County,
                                              :   Criminal Division at Nos. CP-02-CR-
WAYNE CORDELL MITCHELL,                       :   0011609-1997, CP-02-CR-0012047-
                                              :   1997 and CP-02-CR-0013318-1997.
                   Appellant                  :
                                              :
                                              :   SUBMITTED: April 26, 2016




                               CONCURRING OPINION


CHIEF JUSTICE SAYLOR                                            DECIDED: July 19, 2016

       I concur in the result. My reasoning, however, does not wholly align with the

majority’s rationale insofar as the disposition rests on the proposition that the relevant

post-conviction finding – namely, that prosecution witness Sheila Britton would not have

apprised trial counsel of circumstances per which she recalled her telephone

conversation with Appellant – entails a “legal conclusion.” Majority Opinion, slip op. at

12.   In this regard, I also do not discern the direct relevance of Commonwealth v.

Gamboa-Taylor, 562 Pa. 70, 753 A.2d 780 (2000), relied upon by the majority. Rather, I

would specifically credit the Commonwealth’s position that “appellant is improperly

tailoring the factual predicate of his claim in an attempt to circumvent the timing

requirements of the PCRA since the information that forms the basis of his claim, i.e.,

Ms. Britton’s statements, were known to him in 2008.” Brief for Appellee at 14. In this
respect, I also believe that it should be a rare event in which a post-conviction court’s

preponderance-based factual determinations should be treated as after-discovered

evidence or facts for purposes of the statutory time restrictions on post-conviction relief.

       Nevertheless, in retrospect, I am somewhat circumspect about the PCRA court’s

previous disposition of Appellant’s claim of deficient stewardship on the part of his trial

counsel in failing to interview Ms. Britton, which rests on a finding, essentially, that the

witness would have deceived Appellant’s lawyer or otherwise withheld material

information from him. See Commonwealth v. Mitchell, ___ Pa. ___, ___, ___, 105 A.3d

1257, 1276 (2014).     It would have been preferable, in my view, to have assessed

whether the defense was prejudiced at trial by the attorney’s failure to interview the

witness.   At this juncture, however, I can merely observe that the Commonwealth

advanced a strong position that prejudice was lacking, presently reiterated in a passage

of its brief included as an appendix to this concurrence.




                             [J-76-2016][M.O. – Wecht, J.] - 2
                                          Appendix



Excerpt from the Commonwealth’s brief:


              Here, the jury was presented with compelling evidence
              beyond that given by Ms. Britton regarding appellant’s phone
              calls which overwhelmingly established his specific intent to
              kill the victim. In addition to the victim’s diary entries, which
              detailed appellant’s abusive nature and a prior threat to kill
              her if she ever left him, appellant himself confessed that just
              nine days before the killing, he brutally raped the victim
              following an argument regarding a man she was dating. He
              also admitted to threatening her if she reported the rape.
              Knowing that he was supposed to report to St. Francis,
              which was the agreement arranged at the preliminary
              hearing on the rape charges, he instead went to the victim’s
              home and continued the argument about the other man. In
              his articulate, coherent and extremely detailed confession to
              police, appellant confirmed that he returned to the victim’s
              home later that night and during yet another argument over
              her boyfriend, dragged her toward an empty lot, retrieved a
              knife and then raped, sodomized, choked and repeatedly
              stabbed her in the neck, and then disposed of incriminating
              evidence. The jury was also informed of letters appellate
              had written to Ms. Britton from jail following the murder, in
              which he referred to the victim as a whore who had gotten
              what she deserved. Because this evidence overwhelmingly
              demonstrated appellant intentionally killed the victim after
              premeditation and deliberation, he has failed to show how
              the testimony now in issue would have altered the verdict.

Brief for Appellee at 31-32.




                               [J-76-2016][M.O. – Wecht, J.] - 3
