                          [J-145A-2012 and J-145B-2012]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                               EASTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA, :               No. 650 CAP
                              :
               Appellee       :               Appeal from the Order dated December
                              :               30, 2011 in the Court of Common Pleas of
                              :               Luzerne County, Criminal Division at No.
          v.                  :               CP-40-MD-0002778-1992
                              :
                              :               SUBMITTED: November 5, 2012
MICHAEL BARDO,                :
                              :
               Appellant      :


COMMONWEALTH OF PENNSYLVANIA, :               No. 651 CAP
                              :
               Appellant      :               Appeal from the Order dated December
                              :               30, 2011 in the Court of Common Pleas of
                              :               Luzerne County, Criminal Division, at No.
          v.                  :               CP-40-MD-0002778-1992
                              :
                              :               SUBMITTED: November 5, 2012
MICHAEL BARDO,                :
                              :
               Appellee       :


      CONCURRING OPINION AND OPINION IN SUPPORT OF AFFIRMANCE
                       ON DOCKET NO. 651 CAP


MADAME JUSTICE TODD                                     DECIDED: December 16, 2014
       With respect to Part II of the per curiam Opinion, I join the majority’s decision to

affirm the PCRA court’s order denying guilt-phase relief, subject to several caveats.

First, with respect to Bardo’s claim that his trial attorney rendered ineffective assistance

of counsel in his abortive attempt to secure a change of venue, I agree with the majority

that Bardo failed to establish that such a motion had arguable merit: as the PCRA court
held, even assuming the pretrial publicity regarding his case was inherently

inflammatory and inculpatory, he has failed to establish that it so pervaded the

community as to warrant a presumption of prejudice. Indeed, in his attempt before this

Court to make that showing, Bardo merely asserts that only one prospective juror “had

not read or heard anything about the case” and that 40% of prospective jurors formed

an initial opinion regarding his guilt or innocence. See Bardo’s Brief at 67. I join the

majority to the extent it rejects Bardo’s claim on the ground that, under the unique

circumstances of his case, this showing is insufficient to warrant a presumption of

prejudice.

       However, to the extent the majority suggests a litigant may never demonstrate

that pretrial publicity has pervaded the community by showing it has reached virtually all

prospective jurors, or that a litigant may never demonstrate that the time between

pretrial publicity and trial is insufficient to dispel prejudice by reference to its extremely

brief period, I note that this Court has not sanctioned such bright line rules. Instead, this

Court has typically engaged in a holistic, qualitative evaluation of all relevant evidence

to determine if the publicity’s nature and dissemination throughout the community, in the

context of the particular circumstances of the case, warrants a presumption of prejudice

notwithstanding empaneled jurors’ indications that they can be fair and impartial. See,

e.g., Commonwealth v. Pierce, 303 A.2d 209, 213 n.3 (Pa. 1973) (quoting Marshall v.

United States, 360 U.S. 310, 312 (1959) (“[E]ach case must turn on its special facts.”)).

       Moreover, I note that the PCRA court’s alternative rationale, which the majority

approves – that counsel’s failure to obtain a change of venue caused Bardo no

prejudice because each juror indicated he or she would decide the case impartially,

because Bardo failed to exhaust his peremptory strikes, and because the trial court

instructed the jury to decide the case based on the evidence before it – misapprehends




                            [J-145A-2012 and J-145B-2012] - 2
the nature of the claim.   As an initial matter, Pierce and its progeny contemplate that

pretrial publicity may be inherently prejudicial, and thus warrant a presumption of

prejudice, regardless of the jurors’ statements and counsel’s conduct at voir dire and the

trial court’s instructions. See Commonwealth v. Brado, 368 A.2d 643, 645 (Pa. 1977)

(noting that, “[w]hile the jurors may not have considered themselves to be prejudiced by

the [publicity at issue,] . . . [a]nyone who was exposed to such news reporting would

surely have formed some opinion as to” the merits of his defense). Furthermore, in the

present posture, the PCRA court’s inquiry is not whether counsel’s failure to seek a

change of venue may either have presumptively or actually caused his jury to be

prejudiced against him, but rather whether counsel’s failure to obtain a venue change

likely precluded an out-of-county jury from acquitting him or imposing a different penalty.

See, e.g., Commonwealth v. Reaves, 923 A.2d 1119, 1127 (Pa. 2007) (noting that, in

the context of an ineffectiveness claim, the proper prejudice inquiry is whether “there is

a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different”). Accordingly, and in light of the fact that the

PCRA court and the majority properly dispose of Bardo’s claim as lacking arguable

merit, I decline to join this unnecessary and, in my view, erroneous alternative rationale.

       Finally, with respect to Part I of the per curiam Opinion, like Justices Saylor and

Baer, I would affirm the PCRA court’s order granting penalty-phase relief – which is

partially rooted in the PCRA court’s view of the relative persuasiveness of trial counsel’s

and PCRA counsel’s advocacy concerning mitigation evidence, and which the PCRA

court found might well convince at least one juror to forbear from imposing the death

penalty – as the PCRA court’s determination in this regard is free of legal error and

supported by the record.




                           [J-145A-2012 and J-145B-2012] - 3
