                          [J-13A&B & J-14A&B-2013]
                 IN THE SUPREME COURT OF PENNSYLVANIA
                              EASTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA,      :   No. 631 CAP
                                   :
          Appellant                :
                                   :   Appeal from the Order entered on
          v.                       :   8/26/11 in the Court of Common Pleas
                                   :   of Philadelphia County at No. CP-51-
HENRY DANIELS,                     :   CR-1031751-1988
                                   :
          Appellee                 :
                                   :
COMMONWEALTH OF PENNSYLVANIA,      :   No. 632 CAP
                                   :
          Appellee                 :   Appeal from the Order entered on
                                   :   8/26/11 in the Court of Common Pleas
          v.                       :   of Philadelphia County at No. CP-51-
                                   :   CR-1031751-1988
HENRY DANIELS,                     :
                                   :
          Appellant                :
                                   :
COMMONWEALTH OF PENNSYLVANIA,      :   No. 633 CAP
                                   :
          Appellant                :   Appeal from the Order entered on
                                   :   8/26/11 in the Court of Common Pleas
          v.                       :   of Philadelphia County at No. CP-51-
                                   :   CR-1031752-1988
KEVIN PELZER,                      :
                                   :
          Appellee                 :
                                   :
                                   :
COMMONWEALTH OF PENNSYLVANIA,      :   No. 634 CAP
                                   :
          Appellee                 :   Appeal from the Order entered on
                                   :   8/26/11 in the Court of Common Pleas
          v.                       :   of Philadelphia County at No. CP-51-
                                   :   CR-1031752-1988
KEVIN PELZER,                      :
                                   :
          Appellant                :   SUBMITTED: February 12, 2013
                      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 favorable to Pelzer, as well as Parts

V(A) and (D).    I respectfully dissent with regard to Part 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 appellee and the PCRA court

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

evidence demonstrating the impact of childhood abandonment, 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 appended a ready example of the
effective use of such evidence, developed upon the cross-examination of a
Commonwealth mental-health expert. See Commonwealth v. Williams, 577 Pa. 473,
490-92, 846 A.2d 105, 116-17 (2004) (Saylor, J., concurring and dissenting). For
instance, the forensic psychiatrist candidly acknowledged the profound psychological
impact of childhood trauma and deprivation, in terms of 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 viewed 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 mitigation evidence in capital
sentencing proceedings merits careful consideration, particularly as an alternative to the
sorts of generic arguments which Daniels’ counsel pursued as components of his
presentation. See generally Commonwealth v. Sepulveda, 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 capital defense attorneys that
potential mental-health issues are essentially ubiquitous 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 “fairly widespread consensus that the
sort of mental-health and explanatory-type life-history mitigation evidence presently
(continuedL)
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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 claims 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 every
             one) of twelve individuals, having twelve unique mindsets
             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 balance);
             accord 42 Pa.C.S. §9711(c)(1)(iv).            An appellate no-
             prejudice finding can mean that a capital defendant will
             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 merely
             beside the point, since the defendant never stood a

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

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

             Now, the last mitigating factor that the defense is going to
             argue to you is any other evidence of mitigation concerning
             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 the
             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.] - 3
              reasonable chance of avoiding a death verdict in any event.
              The decision is further complicated by the fact that juries do
              not return such verdicts in every capital case in which the
              defendant has committed a heinous murder, or even multiple
              killings.

              I am most troubled by the speculativeness inherent in no-
              prejudice determinations, in view of the volume of cases in
              which we are being required to undertake them (due to a
              lack of preparedness on the part of members of the capital
              defense bar). . . . [Until the preparedness and other issues
              are addressed], I believe we should err on the side of
              providing defendants with one trial at which the defense 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 equally here. Cf. Porter v. McCollum, 558

U.S. 30, 44, 130 S. Ct. 447, 455-56 (2009) (per curiam) (“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 probability sufficient to undermine

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

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

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

“potential” prosecution witnesses, I have continuing reservations about construing

aggravating circumstances more broadly than the plain language 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 was 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 example in which the Court simply

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

§1928(b)(1), or the narrowing construction to be implemented in relation to death-


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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 construction 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 Commonwealth v. Travaglia, 611 Pa.

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

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

v. Houser, 610 Pa. 264, 281-82, 18 A.3d 1128, 1138-39 (2011) (Saylor, J., concurring

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

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

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

3
  I do not make these points to be obstreperous. My concern is that each accretion
away from the plain language of a penal statute, ostensibly narrowly construed, creates
another layer of uncertainty as to the actual parameters of the interpretive judicial
review, in the death-penalty arena and otherwise. By way of another example, this
Court has determined that prior juvenile adjudications are “convictions” for purposes of
aggravation under the death-penalty statute, see Commonwealth v. Baker, 531 Pa. 541,
565, 614 A.2d 663, 675 (1992), irrespective of the fact 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 for 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 treatment of such adjudications
for purposes of aggravation in capital punishment.

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

Under the sort of analysis employed in Baker and in Appel, 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, forbid such extensions.

(continuedL)
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       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, 554 Pa. 586, 722 A.2d 657

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

concern, however, similar to that raised in connection with 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, the Court maintains that Lassiter’s

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

any previous decision interpreting the statute to the contrary upon a developed

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

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

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

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

A.2d 1191, 1256-57 (2006) (Saylor, J., concurring) (elaborating 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 potential impact of antagonistic

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

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

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

light of my conclusion that new penalty hearings are warranted 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 retrenchment is needed, defining the
reach of the death-penalty statute according to its own terms, narrowly construed.


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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 sentencing 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 statutory scheme, which is designed

to permit the punishment of death only upon the rendering 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, 616 Pa. 164, 276, 47 A.3d 63,

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

protracted controversies more readily contained, if prosecutors would limit themselves

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

omitted).




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