                            [J-1-2015][M.O. – Stevens, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                 EASTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                  :   No. 676 CAP
                                               :
              Appellee                         :   Appeal from the Order entered on
                                               :   1/3/13 in the Court of Common Pleas,
              v.                               :   Criminal Division of Philadelphia County
                                               :   at No. CP-51-CR-0700431-1994
LENWOOD MASON,                                 :
                                               :
              Appellant                        :   SUBMITTED: January 5, 2015




                      CONCURRING AND DISSENTING OPINION


MR. CHIEF JUSTICE SAYLOR                                 DECIDED: December 29, 2015


       I concur in the result as to the guilt phase while dissenting as to penalty.

      As to the sentencing aspect, I find this to be a close case, particularly in light of

the precedent establishing the parameters for sufficient representation in a penalty trial.

On the one hand, Appellant’s counsel did succeed in presenting evidence of Appellant’s

borderline intellectual disability, a type of evidence which the Supreme Court of the

United States has observed may very well impact capital penalty deliberations. See

Penry v. Lynaugh, 492 U.S. 302, 319, 109 S. Ct. 2934, 2947 (1989) (explaining that

“evidence about the defendant's background and character is relevant because of the

belief, long held by this society, that defendants who commit criminal acts that are

attributable to a disadvantaged background, or to emotional and mental problems, may

be less culpable than defendants who have no such excuse” (quoting California v.

Brown, 479 U.S. 538, 545, 107 S. Ct. 837, 841 (1987) (O'Connor, J., concurring)));
accord Williams v. Taylor, 529 U.S. 362, 398, 120 S. Ct. 1495, 1515 (2000)

(commenting that “the reality that [the defendant] was ‘borderline mentally retarded,’

might well have influenced the jury's appraisal of his moral culpability.”). On the other

hand, however, it appears that this evidence could have been better developed, and

there was a substantial quantity of other available mitigation. Further, upon my review

of the record, I find that counsel was not adept in presenting the type of context for the

evidence that was adduced which might resonate with jurors.

       For example, in his closing remarks, rather than focusing closely upon the impact

of Appellant’s intellectual disability upon his moral culpability, counsel ruminated on his

personal role in defending against a death sentence, see, e.g., N.T., Feb. 16, 1996, at

114-16; offered a lengthy portrayal of his own childhood experience with a boy who he

depicted as impaired, see id. at 116-118; transitioned somewhat discordantly to a theme

of “living hell” which he first abstractly ascribed to his client’s life, then entreated the jury

to relegate to his client by imposing a life sentence rather than death, see id. at 118-

121; and stood in front of a death-qualified jury attempting to draw a comparison

between modern-day capital proceedings and the Salem witch trials, see id. at 122.

Only a few short and somewhat disjointed passages from the closing touched upon the

actual mitigation evidence developed on the record. See id. at 118-19, 125-26. Given

such shortcomings, and in light of the availability of a more developed mitigation case, I

find the representation to have been sufficiently deficient that a new penalty proceeding

is implicated. Cf. Commonwealth v. Collins, 585 Pa. 45, 75-78, 888 A.2d 564, 582-84

(2005).1




1
  Obviously, the final resolution of the Atkins matter on remand would bear on the
necessity for such a proceeding.


                              [J-1-2015][M.O. – Stevens, J.] - 2
      Finally, I respectfully differ with the majority’s continued approval of prosecutorial

entreaties to capital sentencing juries to show the same mercy to defendants as was

shown to their victims. Accord Commonwealth v. Daniels, ___ Pa. ___, ___, 104 A.3d

267, 323 (2014) (Saylor, J., concurring and dissenting) (expressing 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”).




                           [J-1-2015][M.O. – Stevens, J.] - 3
