                            [J-108-2014] [MO: Eakin, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                EASTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA, :                 No. 693 CAP
                              :
              Appellant       :                 Appeal from the Order entered on
                              :                 01/10/2014 in the Court of Common Pleas,
                              :                 Criminal Division of Philadelphia County at
         v.                   :                 No. CP-51-CR-0632821-1991
                              :
                              :                 SUBMITTED: October 27, 2014
EDWARD BRACEY,                :
                              :
              Appellee        :


                                  DISSENTING OPINION


MR. JUSTICE STEVENS                                       DECIDED: June 16, 2015

           In my view, Appellee has failed to prove by a preponderance of the evidence

that he suffers from an intellectual disability as this Court defined that term in

Commonwealth v. Miller, 585 Pa. 144, 888 A.2d 624 (2005)1 and the PCRA court abused

its discretion in finding to the contrary. I would reverse the PCRA court’s order vacating

Appellee’s original sentence of death; therefore, I respectfully dissent.

           In Atkins v. Virginia, 536 U.S. 304, 318, 122 S.Ct. 2242, 2250 (2002)

(emphasis added), our Supreme Court stated that “clinical definitions of mental

retardation require not only subaverage intellectual functioning, but also significant

limitations in adaptive skills such as communication, self-care, and self-direction that


1 As did the Majority, in light of Hall v. Florida, 134 S.Ct. 1986 (2014), I have replaced the
designation “mental retardation” with “intellectual disability” herein, except where I directly
quote from a decision published before the new term was adopted in Hall.
became manifest before age 18.” In considering the impact of the then recent Atkins

decision in Miller, this Court refused to adopt a cutoff IQ score for determining whether

one is intellectually disabled and instead found such a designation flows from “the

interaction between limited intellectual functioning and deficiencies in adaptive skills that

establish mental retardation.” Miller, at 155, 888 A.2d at 631.

           When considering Appellee’s appeal from the PCRA court’s order denying his

first petition for relief under the PCRA, this Court considered, inter alia, Appellee’s

argument that trial counsel had been ineffective for failing to investigate thoroughly

whether or not Appellee was either organically brain damaged or mentally ill and to

present evidence to this effect at his penalty phase hearing. Commonwealth v. Bracey

(Bracey II), 568 Pa. 264, 795 A.2d 935 (2001), reconsideration denied, April 18, 2002.

           Appellee presented expert testimony at his first PCRA evidentiary hearing in

1998 from three mental health professionals, Drs. Carol Armstrong, Neil Blumberg and

Barry Krop, whom we stated essentially had concluded he suffered from “long-standing

organic brain damage” following their examinations of him which did not occur until over

five and six years after the shooting.      This Court found that such diagnoses were

negated by the mental health evaluation conducted on September 15, 1991, by Dr. Arthur

Boxer, a board-certified psychiatrist whom defense counsel had hired to evaluate

Appellee for the purpose of determining whether there were any viable psychiatric

defenses that he could advance at trial or any mental health mitigation evidence that he

could present to the jury at the penalty phase. We stressed that Dr. Boxer previously

had performed several hundred psychiatric evaluations in criminal cases and that he




                             [J-108-2014] [MO: Eakin, J.] - 2
conducted his examination of Appellee less than one year after he committed the crime

and prior to the commencement of trial. Bracey II, at 277, 795 A.2d at 942.

            In a follow-up letter to trial counsel, Dr. Boxer revealed he would not offer any

helpful testimony to establish any type of mental health mitigation evidence at the penalty

phase hearing.     In fact, Dr. Boxer remarked at the PCRA evidentiary hearing that

Appellee had been responsive and articulate during his evaluation and exhibited no signs

of suffering from organic brain damage or any major mental illness. Bracey II, at 278,

795 A.2d at 942.       This Court noted Dr. Boxer’s analysis was in line with prior,

court-ordered mental health evaluations of Appellee by Dr. Edwin Camiel and

Philadelphia court psychologist Lawrence Byrne conducted in the early 1980’s and for the

instant case, none of which suggested Appellee was brain damaged or mentally ill, but

instead determined Appellee did not manifest any major mental illness which would

interfere with the trial court’s ability to sentence him to death. Bracey II, at 278, 795 A.2d

at 943. Similarly, a board-certified neurologist Dr. Thomas Sacchetti testified for the

Commonwealth at the PCRA evidentiary hearing that Appellee did not suffer from organic

brain disease. Bracey II, at 279 n 8, 795 A.2d at 943 n 8.

           Appellee further averred the PCRA court should have determined trial counsel

had been ineffective for failing to request a hearing to determine whether he was

competent to stand trial in light of testimony elicited at the PCRA hearing from family

members that he always had been “slow” and the opinions of Drs. Armstrong, Blumberg

and Krop. Bracey II, at 282-283, 795 A.2d at 945. In finding this claim failed, this Court

again highlighted the testimony of Dr. Boxer which we felt substantiated trial counsel’s

own belief Appellee was competent to stand trial. Dr. Boxer testified his evaluation of




                              [J-108-2014] [MO: Eakin, J.] - 3
Appellee revealed an individual who was able to respond effectively to his queries and did

not display any behavior which would suggest he suffered from any psychiatric problems.

As stated previously, Dr. Boxer further found Appellee did not suffer from any organic

brain disease or any other serious mental illness. Bracey II, at 283, 795 A.2d at 946.

While Dr. Boxer opined Appellee suffered from an antisocial personality disorder, this

Court relied upon Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert.

denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983) for the proposition that

such disorder does not demonstrate an accused’s diminished capacity, which can be

established only where an accused can prove that at the time of the killing a mental

disorder affected his ability to form a specific intent to kill. Id. In addition, as the Majority

notes herein and the Commonwealth relays in its brief, the record is replete with

statements made by Appellee’s own expert witnesses, Drs. Krop, Armstrong, and Camiel,

at the first PCRA evidentiary hearing acknowledging that although Appellee’s intellectual

functioning was below average, he was not intellectually disabled. Majority Opinion, at

20.

           Yet, Dr. Daniel Martell, who did conduct some interviews, largely relied upon

his review of Appellee’s school, medical and prison records, interviews, and the notes of

testimony from the 1998 evidentiary hearing when finding him intellectually deficient at

2013 evidentiary hearing. Moreover, Dr. Barry Crown, who administered Appellee’s

2011 WAIS-IV test which rendered his significantly lowest IQ score, did not personally

interview anyone before rendering his opinion Appellee had an intellectual disability,

though he admitted he had informed Appellee his counsel had requested his presence.

In addition, the three lay witnesses who testified at the 2013 evidentiary hearing were




                               [J-108-2014] [MO: Eakin, J.] - 4
Appellee’s sister, a family friend, and a fifth-grade teacher, the latter of whom admitted

defense counsel had instructed him that Appellee’s life would be spared were he found to

suffer from intellectual disability and provided testimony that conflicted with notations he

previously had made in Appellee’s school records.

           To the contrary, the evidence relied upon by the PCRA court in Miller included

the testimony of all five experts who had testified during the appellee’s penalty phase

hearing and agreed that he was “borderline” or “mildly mentally retarded.”           These

opinions were supported by school records that evinced the appellee had been placed in

special education classes for the “educable retarded” in first grade and described him as

functioning within the “borderline retarded range of intelligence.” Miller, at 149, 888 A.2d

at 627. Indeed, the Commonwealth’s own witness therein repeatedly stated that the

appellee functioned in the “borderline retarded” or “mentally retarded” range. Miller, at

158, 888 A.2d at 632.

           Nevertheless    in finding Appellee’s     experts    herein did not present

self-contradicting testimony at the evidentiary hearing in 2013, the Majority relies upon

Miller and stresses the evidentiary hearing held in 1998 did not center around a

determination of whether Appellee had an intellectual disability but rather concerned his

ineffective assistance of counsel claims based upon assertions of brain damage and

mental illness.   Majority Opinion, at 27-28 see also Miller, supra, (stating expert

testimony which occurred in the context of a defendant’s attempt to show organic brain

damage, not intellectual disability, was not sufficient to establish an Atkins claim and the

appellant was entitled to a hearing on the same).




                             [J-108-2014] [MO: Eakin, J.] - 5
           While I recognize the expert findings discussed in Bracey II were garnered in

the context of Appellee’s ineffectiveness claims and a determination of intellectual

disability stems from considerations which differ to a degree from those analyzed when

determining the existence of organic brain damage or mental illness, I cannot credit the

opinions of mental health professionals who previously posited Appellee did not have an

intellectual disability yet later so diagnosed him in response to his filing of a second PCRA

petition in 2013 seeking Atkins relief. See Commonwealth v. Hackett, ___ Pa. ____,

____, 99 A.3d 11, 33 (2014) (citation omitted) (stating “[a]s there may be a powerful

incentive to malinger and to slant evidence in cases where a petitioner has not been

clinically diagnosed with intellectual disability and the record before the factfinder was

created to seek relief under Atkins, this Court has found a petitioner's motivation to slant

evidence of intellectual disability is a relevant consideration for Atkins factfinders in

assessing not only the validity of results of post-Atkins intelligence testing, but in

analyzing the entire Atkins petition.”).2 This is especially so in light of the fact that the

mental health experts who examined Appellee prior to trial would have been motivated to

determine not only whether he suffered from a mental illness and/or organic brain

damage but also to discern whether he had an intellectual disability, as his possible

2 See also, Commonwealth v. Birdsong, 611 Pa. 203, ____ n 3, 24 A.3d 319, 352 n 3
(2011) (Castille, C.J., concurring) (stating “[m]any courts, including this one, have
recognized that Atkins claims are particularly susceptible to, and invite, manipulation.
Justice Scalia noted the problem in his dissent in Atkins: “One need only read the
definitions of mental retardation adopted by the American Association on Mental
Retardation and the American Psychiatric Association ... to realize that that the symptoms
of this condition can readily be feigned. And whereas the capital defendant who feigns
insanity risks commitment to a mental institution until he can be cured (and then tried and
executed), the capital defendant who feigns mental retardation risks nothing at all.” 536
U.S. at 353, 122 S.Ct. 2242 (Scalia, J., joined by Rehnquist, C.J. and Thomas, J.,
dissenting) (citations omitted)”).



                             [J-108-2014] [MO: Eakin, J.] - 6
conviction for first-degree murder and sentence of death were at stake; thus, in the extant

case I believe Appellee’s intellectual capabilities were subjected to an in-depth analysis

prior to trial and the evaluations of Appellee conducted in 1998 were fifteen years closer

in time and, therefore, more reflective of Appellee’s intellectual abilities at the time of his

crime than when they were rehashed in the PCRA evidentiary hearing in April of 2013.

           The Federal Defender has a history of raising Atkins issues in serial PCRA

petitions which oftentimes results in a creation of significant delays in capital appeals.

Birdsong, at ____, 24 A.3d at 351 (Castille, C.J., concurring).3 Certainly, such delays

are justified and, indeed, necessary where the petition raises a meritorious claim;

however, in my view, the instant matter does not do so. While the Majority highlights

Appellee’s low test scores in school, difficulty playing age-appropriate games and socially

relating to his peers as a child, trouble performing some simple tasks, and poor sense of

direction in his neighborhood as support for the PCRA court’s finding of intellectual

disability, the factual accounts of his crime as set forth in our opinions on both direct

appeal and in Bracey II evince otherwise.         It is important to remember that when

Appellee murdered Officer Boyle on February 4, 1991, he possessed the intellectual

capacity to: arm himself in preparation of robbing and shooting some drug dealers;

operate a stolen vehicle; brandish a 9 mm automatic handgun at Officer Boyle while

standing on the hood and roof of the police cruiser; demand that the Officer not touch his

own firearm; shoot Officer Boyle with no less than eight rounds, one of which struck him in

3 It should be noted that in Birdsong, the appellee’s primary counsel was the same
Federal Defender primarily representing Appellee herein, and he also raised a claim that
the appellant was not eligible for execution under Atkins due to his intellectual disability.
In addition, Drs. Crown, Martell and Armstrong testified for the defense at the Atkins
hearing held in the Hackett case.



                              [J-108-2014] [MO: Eakin, J.] - 7
the right temple; and evade police for several days.         Such premeditative behavior

indicates an individual who was more than capable of taking control of a deadly situation.

As this Court noted on direct appeal, this violent incident was not Appellee’s first, for the

jury determined he had a significant history of felony convictions involving the use or

threat of violence to others including two prior burglary convictions. Commonwealth v.

Bracey, 541 Pa. 322, 349 n 15, 622 A.2d 1062, 1076 n 15 (1995).

          Appellee fully litigated his direct appeal and first PCRA wherein his mental

functioning was studied by numerous experts; yet, the intellectual disability with which he

was diagnosed post Atkins was not detected by anyone prior thereto. In light of the often

contradictory record evidence, which at best indicates appellee was a below average

student and may have struggled with his dexterity and with interpersonal relationships, I

simply cannot find he has proven by a preponderance of the evidence that he suffers from

a significantly subaverage intellectual functioning or from significant adaptive deficits the

onset of which occurred before he turned eighteen which would entitle to him to Atkins

relief.

            Accordingly, I would vacate the PCRA court’s decision and accompanying

order of January 10, 2014, which found Appellee to be intellectually disabled and exempt

from the death penalty and remand to the trial court for reinstatement of the death

sentence.




                             [J-108-2014] [MO: Eakin, J.] - 8
