                           [J-73-2013] [MO: Stevens, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                               EASTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA, :              No. 675 CAP
                              :
              Appellant       :              Appeal from the Order entered on
                              :              06/28/2012 in the Court of Common
                              :              Pleas, Criminal Division of Philadelphia
          v.                  :              County at No. CP-51-CR-0933912-1986
                              :
                              :
RICHARD HACKETT,              :
                              :              SUBMITTED: August 29, 2013
              Appellee        :



                                DISSENTING OPINION


MR. JUSTICE BAER                                      DECIDED: August 18, 2014


      Following a hearing on the Atkins1 claim brought by Richard Hackett (Appellee),

which required Appellee to prove, by a preponderance of the evidence, that he is

mentally retarded pursuant to the standard adopted by this Court in Commonwealth v.

Miller, 888 A.2d 624 (Pa. 2005), the PCRA court granted relief. Because the court

accepted Appellee’s evidence, and rejected the contrary evidence proffered by the

Commonwealth, it found that Appellee met the appropriate definitions of mental

retardation set forth in Miller and, therefore, is ineligible for the death penalty. The

Majority reverses, concluding that the record does not support the lower court’s factual



1
      See Atkins v. Virginia, 536 U.S. 304 (2002).
findings. Respectfully, its conclusion is simply unsupportable under the appropriate

standard of review on appeal. The PCRA court heard from five experts. Four of them

offered their opinions that, to a reasonable degree of scientific certainty, Appellee is

mentally retarded. One opined that he was not. This evidence was accompanied by

other testimony that, to varying degrees, supported or undermined their expert opinions.

After listening for six days, the PCRA court docketed a thoughtful nineteen page opinion

replete with careful citations to the record concluding that Appellee’s experts and other

testimony were more credible than that presented by the Commonwealth. The PCRA

court could have reached the opposite conclusion because, as recognized by the

Majority, there was evidence of record to support either a finding of mental retardation

or “dull normal” functioning. However, once the PCRA court, after listening to the five

experts and six days of testimony, adjudged credibility and reached its decision, this

case, at least on this issue, was over. The Majority herein inexplicably fails to recognize

that the evidence it relies on in reversing the PCRA court has already been considered

and rejected by the fact-finder. The Majority’s re-weighing of the evidence constitutes an

abuse of our appellate standard of review.2 I am thus compelled to adamantly dissent.

To make my point, I have reviewed all of the evidence and then, seriatim, the various

points discussed by the Majority.




2
       Although I acknowledge the position set forth by the Chief Justice in his
concurring opinion regarding his frustration with the Federal Community Defender’s
Office and their litigation strategies in capital cases, I respectfully believe that his
Concurring Opinion, like the Majority herein, has disregarded the most basic facet of
appellate review: that we are bound by the factual and credibility determinations of the
PCRA court where those findings are supported by the record.



                               [J-73-2013] [Stevens, J.]- 2
       The U.S. Supreme Court has barred the execution of mentally retarded persons.

Atkins, 536 U.S. 304. In Miller, 888 A.2d 624, we adopted the criteria for diagnosing

mental retardation, which is now more commonly referred to as intellectual disability,

that is used by the American Association on Intellectual and Developmental Disabilities

(AAIDD) (previously, the American Association on Mental Retardation (AAMR)) and the

American Psychiatric Association.      Under these criteria, as set forth in Miller, the

following requirements must be met for a finding of mental retardation: 1) limited

intellectual functioning; 2) significant adaptive limitations; and 3) onset of the condition

before the age of 18. Miller, 888 A.2d at 630.3 To be considered mentally retarded, or

intellectually disabled, a petitioner must prove these three criteria by a preponderance

of the evidence. Id. at 631.

       The PCRA court in this case properly applied the standard we established in

Miller and concluded that Appellee met the definition of mental retardation. Thus, the

3
       As we explained more fully in Miller:

       [O]ur analysis of this issue must begin with the proper definition of “mental
       retardation” for purposes of the application of Atkins in Pennsylvania. The
       United States Supreme Court cited two different definitions of “mental
       retardation” in Atkins, and we will first consider these definitions. The
       AAMR defines mental retardation as a “disability characterized by
       significant limitations both in intellectual functioning and in adapative
       behavior as expressed in the conceptual, social, and practical adaptive
       skills.” Mental Retardation at 1. The American Psychiatric Association
       defines mental retardation as “significantly subaverage intellectual
       functioning (an I.Q. of approximately 70 or below) with onset before age
       18 years and concurrent deficits or impairments in adaptive functioning.”
       DSM-IV at 37. Thus, as noted by the PCRA court, both definitions of
       mental retardation incorporate three concepts: 1) limited intellectual
       functioning; 2) significant adaptive limitations; and 3) age of onset.

888 A.2d at 629-30.



                               [J-73-2013] [Stevens, J.]- 3
only question before us on appeal is whether the PCRA court erred in reaching this

conclusion based on the evidence presented. In this regard, “our standard of review of

the PCRA court's determination regarding whether a petitioner is mentally retarded is a

mixed question of law and fact,” which we have described as follows:

      A question involving whether a petitioner fits the definition of mental
      retardation is fact intensive as it will primarily be based upon the testimony
      of experts and involve multiple credibility determinations. Accordingly, our
      standard of review is whether the factual findings are supported by
      substantial evidence and whether the legal conclusion drawn therefrom is
      clearly erroneous. We choose this highly deferential standard because the
      court that finds the facts will know them better than the reviewing court
      will, and so its application of the law to the facts is likely to be more
      accurate.


Commonwealth v. Williams, 61 A.3d 979, 981 (Pa. 2013) (quoting Commonwealth v.

Crawley, 924 A.2d 612, 616 (Pa. 2007)).

      Our review of the grant of post-conviction relief is limited to an examination of

whether the PCRA court’s determination is supported by the record and free from legal

error. Commonwealth v. Moore, 805 A.2d 1212, 1214 n.1 (Pa. 2002). We cannot

disturb the factual findings of the PCRA court, which hears evidence and passes on the

credibility of witnesses, if they are supported by the record, even where the record could

support contrary findings.     Commonwealth v. Jones, 912 A.2d 268 (Pa. 2006).

Additionally, our “scope of review is limited to the findings of the PCRA court and the

evidence on the record of the PCRA court's hearing, viewed in the light most favorable

to the prevailing party.”    Commonwealth v. Duffey, 889 A.2d 56, 61 (Pa. 2005).

Accordingly, if the PCRA court’s determinations with regard to Appellee’s Atkins claim

are supported by the record and free from legal error, we are bound by them, even

where our reading of the record also reveals support for contrary findings.



                               [J-73-2013] [Stevens, J.]- 4
         Regarding the first criteria, which is whether Appellee demonstrated limited

intellectual functioning by a preponderance of the evidence, the PCRA court found that

he had. In my view, this factual finding is supported by the record and free from legal

error.     Dr. Barry Crown, an expert in clinical and forensic psychology and

neuropsychology with decades of experience in treating patients with mental

retardation, tested Appellee on July 22, 2009, on the Wechsler Adult Intelligence Scale

(WAIS), which the Commonwealth expert, Dr. Paul Spanger, agreed was the “gold

standard” of individually administered tests. Notes of Testimony (N.T), Atkins Hearing,

11/16/2011, at 61. Appellee scored an I.Q. of 57, with underlying scores in verbal

comprehension (74), perceptional reasoning (65), working memory (58), and processing

speed (53), which each fell below the threshold score of 75 and within the defined range

of sub-average intellectual functioning.4

         In addition to administering the I.Q. test, Dr. Crown reviewed the facts of the case

and the evidentiary exhibits, talked to Appellee’s prior trial counsel, and opined that,

based on his review of this information, Appellee was mildly mentally retarded. N.T.,

Atkins Hearing, 5/11/2011, at 53 (“With regard to his IQ, his intelligence quotient, which

is prong one of the definition, he certainly falls within the guidelines and the diagnostic

criteria for intellectual disability or mental retardation.”). Continuing, Dr. Crown stated

that Appellee’s I.Q. of 57 placed him “below the first percentile” of the population. Id. at

63.

4
       We explained in Miller that limited intellectual functioning is best represented by
I.Q. scores which are approximately two standard deviations (or 30 points) below the
mean (100), and provided that “a subaverage intellectual capability is commonly
ascribed to those who test below 65-75 on the Wechsler scales.” 888 A.2d at 630.




                                 [J-73-2013] [Stevens, J.]- 5
       Further noting the homogeneity5 on Appellee’s subscale scores, Dr. Crown

testified that he found no reason to believe Appellee’s score was the result of

malingering or fraud, and explained that there were specific indicators of malingering

which were not present with Appellee. N.T., Atkins hearing, 5/11/2011, at 64 (“And in

people who are retarded or intellectually disabled, there should be a great deal of

homogeneity. In addition, in my clinical interview, he was forthright and forthcoming.

There was nothing to suggest that he was attempting to fake this.”) Dr. Crown also

testified that his opinion about Appellee’s sub-average intellectual functioning was

supported by several other factors, including Appellee’s early academic history: he

repeated the first grade three times and struggled with reading; he had genetic links to

mental deficiency as exhibited by his father and brother; he was exposed to toxins at an

early age; he engaged in boxing; and he had difficulty understanding the concepts of his

defense at his criminal trial.

       Dr. Daniel Martell, a forensic psychologist and assistant clinical professor in the

Department of Psychiatry and Behavioral sciences at UCLA’s School of Medicine,

agreed with Dr. Crown that Appellee is mentally retarded.           N.T., Atkins Hearing,

5/12/2011, at 32-33 (explaining that based on all of the data on Appellee, including

three IQ test scores from when Appellee was a child, “[h]e clearly has a significantly

subaverage intellectual function and I believe it’s real and I believe it’s true.”). Dr.

Martell testified that there is a way to test for malingering, referred to as the Mittenberg

Index, and that Appellee’s score of 57 remained valid after applying the index. Id. at 17;

5
      In this context, “homogeneity” refers to logical consistency. Thus, Appellee’s
sub-scores indicated internal consistency, which would be expected for one who is
mentally retarded, rather than one who is attempting to fool the tester.



                                 [J-73-2013] [Stevens, J.]- 6
id. at 18 (“My conclusion is that he was not malingering. That those data are, in fact,

valid and it’s a real score.”); id. (“He was not malingering for Dr. Crown. He was not

malingering for Dr. Armstrong.         There’s no evidence in the record that he has

malingered on any of these tests.”).

       Dr. John O’Brien, a psychiatrist, evaluated Appellee and reviewed the records

and conclusions of other experts, and concluded that Appellee met the diagnostic

criteria for mental retardation. N.T., Atkins Hearing, 5/12/2011, at 177-178. Finally, Dr.

Carol Armstrong, a neuropsychologist and defense expert, conducted a clinical

interview of Appellee and administered forty-five neuropsychological subtests to him,

which assessed his memory processes, reasoning, judgment, verbal abilities, ability to

perform different tasks, and included two parts of the I.Q. test given by Dr. Crown. N.T.,

Atkins Hearing, 11/15/2011, at 90-93. She testified that Appellee has significant sub-

average intellectual functioning, id. at 111, and that the results she received

substantiated Dr. Crown’s reported I.Q. score of 57. Id. at 93; 98. Additionally, Dr.

Armstrong testified that Appellee was not malingering. Id. at 94-95. She observed that

Appellee had neuro-psychological problems at birth, and that his subsequent exposure

to toxins as a child and through adulthood, as well as head injuries, hampered the

growth of his brain. Id. at 104-06.

       The PCRA court relied on the testimony of Drs. Crown, Martell, O’Brien, and

Armstrong, as well as testimony from Appellee’s family regarding his assistance in the

family’s puppy kennel from the age of ten to eighteen, which involved the use of multiple

toxins several times a year, testimony about Appellee’s lawn care business, which

involved his use of pesticides without the benefit of a respirator or protective clothing,




                               [J-73-2013] [Stevens, J.]- 7
and testimony about Appellee’s involvement in a boxing club for a year when he was

fourteen. It concluded, based on the evidence and the experts’ opinions, that Appellee

demonstrated sub-average intellectual functioning.

       In reaching this conclusion, the PCRA court considered and rejected the

testimony of the Commonwealth’s expert, Dr. Spangler, an expert in developmental and

intellectual disability, who reviewed Appellee’s elementary school and hospital records,

and concluded that Appellee’s I.Q. was in the range of “dull normal” rather than mental

retardation. N.T., Atkins Hearing, 11/17/2011, at 12. Dr. Spangler’s conclusion in this

regard derived primarily from three prior I.Q. tests administered to Appellee: a 1972 test

administered by St. Christopher’s school, with a score of 80; a 1979 test administered

by the Counseling or Referral Assistance Services (CORA), with a score of 85; and a

1988 Beta-2 screening test administered by prison officials, with a score of 82.

       In directly comparing the parties’ lead experts, the PCRA court found Dr.

Spangler’s conclusion less credible than that of Dr. Crown premised on its observations

that Dr. Spangler did not personally interview Appellee or administer any developmental

or I.Q. tests and did not dispute the validity of the test administered by Dr. Crown.

Additionally, the court noted that Dr. Spangler agreed with Dr. Crown, as well as all of

the other defense experts, that there was no significant malingering by Appellee on Dr.

Crown’s test. N.T., Atkins Hearing, 11/17/2011, at 27 (stating that Appellee did not

purposefully give false answers); id. at 34 (“I don’t think he’s actually lying.”); id. at 151

(“I didn’t feel there was significant malingering.”). The PCRA court also observed Dr.

Spangler’s testimony that Appellee’s motivation may have caused him to work more

slowly on Dr. Crown’s test, and therefore may have depressed his score by up to fifteen




                                [J-73-2013] [Stevens, J.]- 8
points. PCRA Ct. Op. at 7. Even by this measure, however, Appellee’s score remained

in the range for mental retardation (72).

       The PCRA court was not persuaded by Dr. Spangler that Appellee’s three earlier,

higher I.Q. test results indicated that Appellee was not mentally retarded, accepting

instead Appellee’s experts’ explanations about why these earlier tests were not

persuasive on the factual question of whether Appellee suffers from limited intellectual

functioning.   The record supports the PCRA Court’s acceptance of Appellee’s experts’

opinions instead of the Commonwealth’s in this regard.

       Specifically, the PCRA court noted Dr. Crown’s testimony that these three scores

did not change his opinion that Appellee was mentally retarded. PCRA Ct. Op. at 8;

N.T., Atkins Hearing, 5/11/2011, at 84 (referring to the 1979 test and stating that it did

not alter his opinion about whether Appellee meets the intellectual functioning prong).

Specifically, Dr. Crown explained that none of the three prior tests altered his opinion

that the 2009 I.Q. test, with a score of 57, represented Appellee’s I.Q. because, with

regard to the 1972 test administered by St. Christopher’s school and the 1979 test

administered by CORA, there was no information about the circumstances in which the

test was administered, who administered it, whether it was a full or partial test, or how it

was scored. Id. at 84 (referring to the 1972 test and stating that, from the report of the

score, he could tell nothing about the circumstances in which the test was administered

or by whom); id. at 84-85 (stating that as a clinician, he was unable to rely on the score

reported from the 1972 test in assessing Appellee’s intellectual functioning); id. at 82

(referring to the 1979 test and explaining “I don’t know how it was administered. I don’t

even know whether it was -- the whole WISC or whether it was a partial WISC, which is




                               [J-73-2013] [Stevens, J.]- 9
very common in school systems. And I’m not sure who actually administered it. That

report is signed by two people. One is a PhD and the other person has a master’s

degree.”); id. at 84 (explaining that 1979 test did not alter his view of Appellee’s

intellectual functioning because “a child’s development can change from year to year.

So that’s just one point in time.”). Dr. Crown testified that with respect to the 1972 test

results, it was not even clear what test was administered. Id. at 84.

       Turning to the 1988 test, Dr. Crown explained that the Beta-2 test is not generally

utilized to diagnose mental retardation and should not be relied upon in assessing

intellectual functioning; rather, it is meant to yield an approximate I.Q. Id. at 80-81.

Additionally, the Beta-2 scores do not correlate with WAIS scores, producing instead

results that are approximately fifteen points higher than WAIS scores, so that Appellee’s

score on the Beta-2 of 82 was consistent with his 2009 WAIS score of 57 because it

revealed that Appellee was in the lowest 1% of population. Id. at 81 (“At the tails of the

distribution, the disparity is roughly 15 points from the Wexler scale. . . . [Appellee] is at

the tail of the distribution. 99 of 100 people would be ahead of him. He’s at the lowest,

lowest point in that bell-shaped curve.”).

       The PCRA court further noted that Dr. Martell also testified that nothing about

Appellee’s older I.Q. test scores altered his opinion about Appellee’s sub-average

intellectual functioning. PCRA Ct. Op. at 10; N.T., Atkins Hearing, 5/12/2011, at 33.

Specifically, Dr. Martell agreed with Dr. Crown with respect to the Beta-2 test. He

explained that it is outdated, inaccurate, and tests specific non-verbal abilities rather

than overall I.Q. N.T., Atkins Hearing, 5/12/2011, at 29-30. He further testified that

whoever scored the test did so incorrectly, so that in Dr. Martell’s opinion the score




                               [J-73-2013] [Stevens, J.]- 10
reported from the Beta-2 test should have been 74. Id. at 31. In addition, according to

Dr. Martell, the Beta-2 test overestimates one’s real I.Q. by ten to fifteen points, bringing

the Beta-2 score more in line with the 2009 test administered by Dr. Crown. Id. at 31-

32.

       Regarding the 1972 and 1979 tests, Dr. Martell did not dispute their validity, but

opined that these tests could not account for subsequent “neurological insults” that

Appellee endured as an adolescent and young adult. PCRA Ct. Op. at 8-9; N.T., Atkins

Hearing, 5/12/2011, at 19-20 (“I think those scores [referring to the 1972 and 1979

scores] can be legitimate. . . . But there is significant events in his history after age 14

where he was receiving head injuries and where he was chronically exposed to poisons

that attacked the nervous system . . . .”). Explaining that the battery of tests given to

Appellee by Dr. Armstrong were neuropsychological, and designed to look at the

specific functions of each lobe of the brain, Dr. Martell testified that the results of such

tests corroborated his testimony about neurotoxin exposure. Id. at 27; id. at 28 (“. . . the

pesticides are known to affect certain brain functions and those are the areas in which

he has particularly poor performance.”).

       The PCRA court additionally relied on Dr. O’Brien’s testimony that Appellee’s

older I.Q. test results did not change his opinion that Appellee’s I.Q. indicated limited

intellectual functioning. PCRA Ct. Op. at 10; N.T., Atkins Hearing, 5/12/2011, at 178; id.

at 180 (“the more current assessment [of I.Q.] is more relevant [than the older tests].”)

Further, Dr. O’Brien testified that the Beta-2 test was unreliable for the reasons already

stated by Drs. Crown and Martell, id. at 183-84, and that without the raw data relating to

Appellee’s early I.Q. tests, the test results themselves were not reliable. Id. at 184




                               [J-73-2013] [Stevens, J.]- 11
(“[W]ithout the raw data with the prior testing, we’re really not in a position to assess

whether or not that testing result was in fact accurate. . . . we really don’t know if that’s

an accurate result.”).

       Finally, the PCRA court relied on the testimony of Dr. Armstrong that the I.Q.

scores obtained during Appellee’s childhood and adolescence were not as reliable as

that obtained by Dr. Crown.         PCRA Ct. Op. at 11.         Specifically, Dr. Armstrong

discounted the reliability of the older tests for two reasons: because no one could verify

their accuracy due to the lack of data about the testing process, and because those

tests occurred prior to Appellee’s involvement with the sport of boxing and exposure to

neurotoxins. N.T., Atkins Hearing, 11/15/2011, at 109 (explaining that there was no way

to verify whether the prior tests were “done correctly.”); id., at 108 (“Well, the IQ that he

had prior to his . . . chemical exposure and the boxing seem like anomalies compared to

the rest of his history, as well as the neurological findings, the I.Q. of Dr. Crown in

2009.”); id. at 110 (“. . . as I put his information together, [the older I.Q. test scores]

stand out as outliers and -- so, either there’s something wrong with them or the history

explains that they actually declined after that.”).

       Based on the preponderance of the evidence standard, the evidence in the

record and the testimony relied upon by the PCRA court in its opinion supports its

conclusion that Appellee met the constitutional standard of limited intellectual

functioning. Both Appellee and the Commonwealth presented evidence, and the PCRA

court made the necessary factual and credibility determinations to decide whether

Appellee met his burden of proof. It accepted Appellee’s evidence, and rejected the

Commonwealth’s. Because its finding of Appellee’s limited intellectual functioning is




                                [J-73-2013] [Stevens, J.]- 12
supported by the record, there is no basis upon which to set aside the PCRA court’s

factual findings; rather, we should uphold it, and should not search the record for

contrary evidence that supports the Commonwealth.

       Rather than examine the record to discern whether it supported the PCRA court’s

determinations, the Majority has, in my respectful opinion, reweighed the evidence and

substituted its judgment for that of the fact finder. Such reweighing does not comport

with our unassailable criteria for appellate review. See Commonwealth v. White, 734

A.2d 374, 381 (Pa. 1999) (“there is no justification for an appellate court, relying solely

upon a cold record, to review the fact-finder's first-hand credibility determinations.”).

Nor does it comport with the “highly deferential” standard of review employed in cases

where an Atkins claim is raised.      See Crawley, 924 A.2d at 616.         In Crawley, we

explained that the question of whether a petitioner fits the definition of mental

retardation is fact intensive because it is primarily based on the testimony of experts

and involves multiple credibility determinations; thus, we will uphold the factual findings

where they are supported by substantial evidence and we will uphold the legal

conclusions drawn therefrom unless clearly erroneous. Id. “We choose this highly

deferential standard because ‘the court that finds the facts will know them better than

the reviewing court will, and so its application of the law to the facts is likely to be more

accurate.’” Id. (quoting Thomas v. General Motors Acceptance Corp., 288 F.3d 305,

307–08 (7th Cir. 2002)).

       By reweighing the credibility of Appellee’s expert, the Majority and the Chief

Justice in concurrence have, respectfully, disregarded the evidentiary value of expert

opinion, which, when rendered to a reasonable degree of professional certainty, is




                               [J-73-2013] [Stevens, J.]- 13
sufficient to support a finding of fact. See, e.g., McMahon v. Young, 276 A.2d 534, 535

(Pa. 1971) (“The opinion of a medical expert is evidence. If the fact finder chooses to

believe it, he can find as fact what the expert gave as an opinion.”); Commonwealth v.

Meals, 912 A.2d 213 (Pa. 2006) (same). When Appellee’s psychiatric experts testified

to a reasonable degree of medical certainty that Appellee met the clinical definition of

intellectual disability, therefore, Appellee had presented evidence sufficient to permit the

PCRA court to find as much.

       In an analogous context, we reviewed the Superior Court’s reversal of a trial

court’s order concluding that the appellee suffered from pedophilia, and, consequently,

was a sexually violent predator under Megan’s Law, 42 Pa.C.S. §§ 9791 et seq. Meals,

912 A.2d at 214.     In rejecting the Superior Court’s analysis, we disapproved of its

conclusion that expert opinion was insufficient to support the trial court’s finding of

pedophilia:

       The [Superior Court’s] discounting of the finding of pedophilia is also
       troubling because it ignores that [the] expert opinion -- that, to a
       reasonable degree of professional certainty, appellee was a pedophile --
       itself was evidence. To the extent appellee felt that the expert's “diagnosis”
       was not fully explained, did not square with accepted analyses of the
       disorder, or was simply erroneous, he certainly was free to introduce
       evidence to that effect and/or to argue to the factfinder that the
       Commonwealth's expert's conclusions should be discounted or ignored.
       But that argument would affect the weight, and not the sufficiency, of the
       expert's evidence. See, e.g., Commonwealth v. Davido, 582 Pa. 52, 868
       A.2d 431, 442 n. 18 (2005); cf. McMahon v. Young, 442 Pa. 484, 276 A.2d
       534, 535 (1971) (“The opinion of a medical expert is evidence”)


Meals, 912 A.2d at 223-24.

       To the extent the Commonwealth, the Majority, and the Concurring Opinion

challenge the PCRA court’s decision crediting Appellee’s expert opinions based on




                               [J-73-2013] [Stevens, J.]- 14
credibility, that view is relevant to the weight of the evidence or even the admissibility of

that evidence. See Pa.R.E. 703 (“An expert may base an opinion on facts or data in the

case that the expert has been made aware of or personally observed. If experts in the

particular field would reasonably rely on those kinds of facts or data in forming an

opinion on the subject, they need not be admissible for the opinion to be admitted.”).

Once the evidence was properly admitted, however, pursuant to McMahon and Meals,

the PCRA court was within its discretion to “find as a fact what the expert gave as an

opinion.” McMahon, 276 A.2d at 535.For instance, turning to the PCRA court’s specific

factual findings relative to the first criteria of low intellectual functioning, the Majority

accuses the PCRA court of “dismissing” Appellee’s pre-Akins I.Q. scores because the

Commonwealth was unable to prove the veracity or accuracy of the earlier tests, and

asserts that the Commonwealth is not required to do so because it is Appellee’s burden

to prove mental retardation. Maj. Slip Op. at 33. The PCRA court, however, did not

dismiss Appellee’s pre-Atkins scores; it considered them and found them less reliable

as an accurate indicator of Appellee’s intellectual functioning than the 2009 test

administered by Dr. Crown and the other evidence presented by Appellee. Moreover, it

did not make this determination based on the Commonwealth’s failure to verify the

accuracy of the tests; it considered the lack of supporting data about the testing

conditions as pointed out by defense testimony and accepted the proffered proposition

that the most recent I.Q. test was the most reliable.        The court also relied on Dr.

Martell’s and Dr. Armstrong’s conclusions that Appellee’s exposure to neurotoxins and

involvement in boxing subsequent to the pre-Atkins I.Q. tests also added to the decline

in his I.Q. score.




                               [J-73-2013] [Stevens, J.]- 15
       While it is unequivocal that Appellee bears the burden of proving his mental

retardation, the burden is by a preponderance of the evidence. The PCRA court found

that Appellee factually met this burden notwithstanding higher scores on earlier I.Q.

tests because it credited the testimony of Appellee’s experts. These are factual and

credibility determinations to which we are bound, and I see no basis to set aside such

determinations as they are supported by the record.

       Apparently arguing in the alternative, the Majority notes that defense experts did

not claim that Appellee’s 1972 and 1979 scores were inaccurate, but merely stated they

were unreliable because of the absence of supporting information. Maj. Slip Op. at 33.

While the Majority is correct that the experts did not claim that the 1972 and 1979 tests

were inaccurate, the salient point is that they, in their expert opinions, were not

persuaded by these two scores to alter their opinions about Appellee’s intellectual

functioning.   Drs. Crown and O’Brien explained their reasoning in this respect by

observing the lack of information to substantiate the reliability of the reported scores,

Drs. Martell and Armstrong hypothesized that these earlier tests were administered

before subsequent events decreased Appellee’s neurological functioning, and Dr.

O’Brien opined that the most recent I.Q. test score was the most accurate

representation of Appellee’s present intellectual functioning. While the Commonwealth

presented contrary evidence, the PCRA court credited Appellee’s experts’ opinions and

accepted their assertions that the 1972 and 1979 tests were not the best indicator of

Appellee’s intellectual functioning.

       Examining the testimony of Dr. O’Brien, the Majority finds an apparent

contradiction in his reliance on the 2009 I.Q. test administered by Dr. Crown, even in the




                               [J-73-2013] [Stevens, J.]- 16
purported absence of raw data attending that test. Maj. Slip Op. at 33. Dr. O’Brien,

however, accepted the testimony of the other experts, including Dr. Crown, regarding

the validity and reliability of the 2009 testing and scoring.          N.T., Atkins Hearing,

5/12/2011, at 185 (“. . . the reliability of that testing [referring to the 2009 test] was

found to be intact.”); id. at 186 (stating that he routinely relies on psychological testing

that has been done by other psychologists and “subjected to the same type of reliability

analysis that Dr. Martell undertook with the testing performed upon Mr. Hackett. In my

opinion there’s nothing to indicate that the testing is not reliable.”). Unlike the Majority, I

see no contradiction in this witness finding unpersuasive older tests for which there was

no supporting data, and finding persuasive the most current test which several other

experts had examined for administration, scoring, and reliability.

       Further, Dr. O’Brien credited the score derived by Dr. Crown because it was the

most recent in time, and therefore most relevant. N.T., Atkins Hearing, 5/12/2011, at

180. Dr. O’Brien also explained that he relied on Dr. Crown’s score because the test

that was administered is “the primary test utilized for the purposes of assessing

intelligence in terms of determining if an individual meets the diagnostic criteria for

mental retardation,” and was therefore more reliable than other tests.            Id. at 183.

Additionally, Dr. O’Brien explained that the 1979 test administered by CORA was

suspect because the purpose of that test was to determine if Appellee could be

mainstreamed in special education within the public school system, and, despite

resulting in a score of 85, which is above the range for mental retardation and suggests

that mainstreaming was appropriate, the decision that followed was not to mainstream

Appellee. Id. at 182.




                                [J-73-2013] [Stevens, J.]- 17
       The Majority next asserts that Appellee’s own experts offered conflicting opinions

with regard to whether the pre-Atkins scores were reliable: “[W]hile Dr. Crown refused to

rely on Appellee’s early I.Q. scores and Dr. Armstrong did not comment on the reliability

of these tests, Dr. Martell felt Appellee’s first two test scores, which were above the

threshold of mental retardation, were reliable.” Maj. Slip Op. at 33. This assertion,

however, misses the point. Dr. Martell did not state that the older tests were reliable; he

stated that he did not care and therefore would not opine about their reliability because

they were administered prior to the later events that, in his opinion, decreased

Appellee’s neurological functioning, specifically, boxing and exposure to neurotoxins. In

relevant part, Dr. Martell testified as follows:

       I’m not going to quibble about those tests and those scores [referring to
       the older tests]. . . . I think those scores can be legitimate. He certainly
       had an 85 on that WISC in 1979 when he was 14-years old. But there is
       significant events in his history after age 14 where he was receiving head
       injuries and where he was chronically exposed to poisons that attacked
       the nervous system and were taken off the market. . . .


N.T., Atkins Hearing, 5/12/2011, at 19-20; id. at 64 (“There are unknowns about those

tests. . . I’m not going to quibble about those scores. It’s quite possible those are valid

or at least close approximations to what his I.Q. was at that time.”); id. at 66 (“I don’t

quibble with that [the 1979 score] because what I see is the big problem here occurred

after that test.”). It is apparent that Dr. Martell did not view the older tests as relevant,

even if the 1979 score could be considered valid.

       Next, the Majority asserts that there is no basis in the record for the PCRA

court’s finding that, according to Dr. Crown, Appellee’s earlier test scores would have

been “nullified” by factors such as “inconsistent testing conditions, wildly divergent




                                [J-73-2013] [Stevens, J.]- 18
median ranges, and out-of-date testing measures (known as the ‘Flynn effect’).” Maj.

Slip Op. at 33. Although the Majority is correct that Dr. Crown did not opine that the

earlier tests were unreliable for these reasons, Dr. Crown explained other reasons for

not being persuaded by the earlier tests, specifically, the lack of information about the

circumstances of the test, and his belief that the most recent test was the most accurate

indication of Appellee’s intellectual functioning. The record supports the PCRA court’s

acceptance of Dr. Crown’s expert opinion in this regard.

       Although the Majority is factually accurate that Dr. Armstrong expressed an

opinion that “the Flynn effect” should adjust Appellee’s older scores downward because

of outdated norms, but that such adjustments did not bring the scores into the range of

mental retardation, this opinion was tangential to the doctor’s testimony, which focused

primarily on the neurological impact of events that transpired following the

administration of the earlier tests.     N.T., Atkins Hearing, 11/15/2011, at 184 (after

explaining the Flynn effect, stating “[b]ut, as I said earlier, those scores which were . . .

before the age of 18 . . . were taken before he had other insults to his brain. . .”).

       The Majority asserts that Appellee was never diagnosed as having mental

retardation. This is incorrect, as all of Appellee’s experts agreed that he has mental

retardation. N.T., Atkins Hearing, 5/11/2011 at 53; id. at 56; id. at 65; id. at 79; id. at 92;

id. 5/12/2011 at 56; id. at 60; id. at 144; id. at 178; id at 194; id. at 196; id. at 212; id.

11/15/2011 at 101; id. at 142; id. at 174; id. at 219. If the Majority is suggesting that the

lack of a diagnosis of mental retardation prior to age 18 dooms a claim of mental

retardation, Maj. Slip Op. at 34, with all due respect, we have never held that a formal

diagnosis of mental retardation arising prior to age 18 is a criteria pursuant to Miller. To




                                [J-73-2013] [Stevens, J.]- 19
the contrary, we have accepted evidence of diminished intellectual functioning and age

of onset that fall short of a formal diagnosis arising before age 18. See, e.g., Williams,

61 A.3d 979 (affirming PCRA court’s finding of mental retardation in the absence of a

childhood diagnosis of mental retardation). While it would clearly be an easier case if

Appellee had been diagnosed with mental retardation prior to turning eighteen, the

PCRA court properly considered the evidence presented and the testimony of

Appellee’s experts, who diagnosed Appellee with mental retardation.

      The Majority next asserts that Dr. Martell conceded that Appellee’s label of “brain

injured,” which was how the Ashbourne school classified him, could have indicated

Appellee merely had learning disabilities. Maj. Slip Op. at 34. Dr. Martell’s testimony,

however, also indicates that the term encompassed children with mental retardation.

N.T., Atkins Hearing, 5/12/2011, at 75 (“Learning disability is a kind of brain damage.

Mental retardation is a kind of brain damage. They don’t necessarily result from brain

injury but they reflect abnormal brain functioning.”). Similarly, although the Majority

characterizes the testimony of Dr. Armstrong as indicating that Appellee’s mental

impairment was consistent with other neurological abnormalities, it is clear from her

entire testimony that in her opinion Appellee has mental retardation. Dr. Armstrong

conducted a neurological assessment, involving a battery of 45 tests, and made overall

findings, and concluded that Appellee has intellectual disability, which she explained is

the current terminology to describe mental retardation, in accord with the three prongs

adopted to define mental retardation in Miller. N.T., Atkins Hearing, 11/15/2011, at 96;

id. at 101; id. at 135-36.    The Commonwealth challenged her opinion on cross-

examination, but she was consistent that, in her opinion as a neuropsychologist, looking




                              [J-73-2013] [Stevens, J.]- 20
at the totality of the evaluations and reports, Appellee has mental retardation. Id. at

149-165.

       The Majority is, I believe, unfairly critical of the PCRA court for not distinguishing

between students with learning disabilities and those with mental retardation.            The

Commonwealth cross-examined Dr. Armstrong with regard to whether it was possible

that all of Appellee’s limitations could be ascribed to learning disabilities rather than

mental retardation, and Dr. Armstrong explained that learning disabilities and mental

retardation were not discreet categories, that someone who has mental retardation will

likely also have learning disabilities. N.T., Atkins Hearing, 11/15/2011, at 158 (“And,

yes, learning disability is not a -- some other diagnosis that’s separate from intellectual

disability or mental retardation. It’s a part of it.”). There is nothing in the PCRA court’s

opinion that betrays of lack of understanding in this regard. See PCRA Ct. Op. at 11

(referencing Dr. Armstrong’s opinion that Appellee has an intellectual disability, or

mental retardation).

       Next, the Majority expresses skepticism of Dr. Crown’s opinion that there was no

indication that Appellee intentionally depressed his I.Q. score by a lack of effort. Maj.

Slip Op. at 35. In this regard I would also note that Dr. Spangler, the only expert who

did not believe that Appellant’s I.Q. was in the range of mental retardation, rejected the

score derived by Dr. Crown because he believed that Appellee’s motivation to work

slowly could have artificially depressed his score by about fifteen points. Thus, even by

the Commonwealth’s own speculation about this slow-down effect, Appellee’s most

recent I.Q. score indicates that it is still within the range of mental retardation, at 72 (the

uncontested actual score of 57 plus 15). Moreover, the fact remains that Dr. Crown




                                [J-73-2013] [Stevens, J.]- 21
testified that nothing the Commonwealth offered altered his opinion that there was no

evidence of a lack of motivation with regard to the 2009 I.Q. test. N.T., Atkins Hearing,

5/11/2011, at 177-178.

       In particular, the Commonwealth played for Dr. Crown the recorded conversation

in which Appellee indicated his intent to play the “nut role” and “beat the system,” and

Dr. Crown was still not persuaded to alter his opinion. Id. at 176. While the Majority

may not agree with Dr. Crown, the fact remains that it was his expert opinion, as a

neuropsychologist. Moreover, it was bolstered by multiple other experts as well as lay

witnesses. The PCRA court was well within its discretion to consider credibility, and to

accept this testimony.

       The Majority also takes the PCRA court to task for not considering that there may

be a powerful incentive to malinger and to slant evidence to establish mental

retardation. Maj. Slip Op. at 35-36 (citing Commonwealth v. DeJesus, 58 A.3d 62, 85-

86 (Pa. 2012)).    Although “[t]he prospect of malingering and the incentive to slant

evidence to influence a finding of mental retardation are relevant considerations to

argue to the Akins factfinder in an appropriate case,” id. at 85, there is no indication that

the factfinder in this case failed to scrutinize such considerations. The thrust of the

Commonwealth’s presentation of evidence with regard to Appellee’s I.Q. score was that

his prior I.Q. scores were more accurate indicators of his intelligence than the most

recent test administered by Dr. Crown precisely because of Appellee’s Atkins motivation

to do poorly.     Every expert who testified, however, stated that Appellee was not

malingering, and the only expert to speculate about Appellee’s motivation to work slowly

did not expect such a motivation to depress his score beyond 15 points, see, e.g. N.T.




                               [J-73-2013] [Stevens, J.]- 22
Atkins Hearing, 11/17/2011, at 139 (Dr. Spangler testifying that a lack of motivation will

decrease an I.Q. score by an average of 15 points), thus rendering the effect harmless

within the context of the considered issue. The PCRA court relied on all of the experts,

including the Commonwealth’s, in this respect. PCRA Ct. Op. at 8.

      The Majority also disregard’s the PCRA court’s acceptance of Appellee’s experts’

opinions that the decrease from his earlier I.Q. scores (the 1972 score (80) and the

1979 score (85)) to the 2009 I.Q. score of 57 was attributed to neurological impairments

that happened after 1979. Maj. Slip. Op. at 36. According to the PCRA court, Dr.

Martell testified that Appellee likely suffered dementia as a teenager as a result of

boxing and from exposure to neurotoxins from his family’s kennel and his contact with

chemicals in his lawn care business. PCRA Ct. Op. at 8. The court then observed the

evidence in the record that from the age of ten until he left home at 18, Appellee used

creosote four to five times a year, inhaling the vapors and absorbing it through his skin,

and was exposed to the pesticide Sevin, which the family used to treat the dogs for

fleas and ticks. Id. at 8-9. When Appellee started his lawn care business, he was

exposed to malathion, which he used to treat lawns without a respirator or protective

clothing. Id. at 9. The court noted that in 1990 these products were found to cause

mental retardation. Id. As further evidence that Appellee suffered from neurological

impairments as a result of boxing and his exposure to neurochemicals, the PCRA court

relied on the testimony of Dr. Armstrong, who concluded, based on her administration of

45 neurological tests, that Appellee had “an unusually severe profile of neuro-

psychological impairments.” PCRA Ct. Op. at 11; N.T., Atkins Hearing, 11/15/2011, at

96.




                              [J-73-2013] [Stevens, J.]- 23
      The Majority asserts that the defense did not demonstrate a causal connection

between the chemicals to which Appellee was exposed, specifically, creosote, Sevin,

and malathion, and his subsequent drop in I.Q. However, Dr. Armstrong asserted in her

report that Sevin “inhibits cholinesterase, and is also linked with memory impairment,”

and that “Malathion binds with cholinesterase, and causes memory impairment in

humans.” Reproduced Record (R.R.) Vol. 3, 18R.         Dr. Martell testified that these

chemicals are organophosphates which kill the nervous system of humans. N.T., Atkins

Hearing, 5/12/2011, at 22; id. at 26 (“One of the things with these neurotoxins is they

are cumulative. They are stored in the fat in our bodies. The fat kind of concentrates

and magnifies them. So the more you are exposed to it, the more it builds up in your

system and then the more corrosive it is on your brain and nervous system.”); id. at 158

(Dr. Martell noting that creosote was banned in 1990 because of the risk it posed to the

nervous system).

      As Dr. Armstrong explained, the chemicals with which Appellee had worked in

the past have been discovered to cause brain injury, specifically impacting the

memory.6 She continued that these chemicals also affect the central nervous system


6
      Dr. Armstrong testified:

      He was working with a lot of toxic chemicals that we know cause brain
      injury, specifically to memory, probably beyond memory, but results from
      studies -- they're depending on animal studies -- where we know how to
      test memory. Studies aren't being done on humans for obvious reasons.
      And so -- in any case, we know that the chemicals -- that he worked with
      insecticides, even herbicides, the creosote, all can cause destruction of
      the laying down of memory, destruction of memory systems.

N.T., Atkins Hearing, 11/15/2011, at 103.




                             [J-73-2013] [Stevens, J.]- 24
and neurological functioning.7     On cross examination, Dr. Armstrong explained that

mental retardation is a neurological problem, and neurological problems result from

repeated, excessive exposure to chemicals that effect the nervous system. N.T., Atkins

Hearing, 11/15/2011, at 213-216. Acknowledging that malathion is used to treat head

lice, Dr. Armstrong testified that this was controversial, as many disagreed with its use

for that purpose, and that using it one time was of a different degree than its repeated

use causing a buildup in the body. Id. As a neurologist, the neurological impact of

these chemicals was within the witness’s expertise.        Moreover, the Commonwealth

attempted to discredit her, and she did not waiver from her opinion that repeated

exposure, as experienced by Appellee, would have had a neurological impact. She

notably verified that Appellee in fact had neurological impairments through her testing

and evaluation of him. Thus, in her expert view, his objective status was consistent with

her expectation premised on his history. I see no error in the PCRA court accepting her

opinion, and I disagree with the Majority that the record does not support the PCRA

court’s findings and conclusions in this regard.

7
       Specifically, she testified as follows:

       . . . it's not just the creosote. It's -- it's the carbaryl, which is known to
       cause memory loss; the malathion, which is an insecticide, that affects --
       that's known to affect the CNS [central nervous system] and it causes a
       variety of neurological symptoms in humans including memory . . . And
       even the herbicides that he used, the Roundup that he used to spray
       around the lawns, that causes abnormal cell signaling. These insecticides
       tend to accumulate in fatty tissues. So they don't -- they're not breathed
       out or metabolized quickly. They remain in the body for awhile. So these
       are drugs that we know that would affect neurological functioning.

N.T., Atkins Hearing, 11/15/2011, at 105-06.




                                [J-73-2013] [Stevens, J.]- 25
      In a similar vein, the Majority asserts there was no evidence that Appellee was

ever injured during his participation in the boxing program, undermining the PCRA

court’s factual finding on this matter. Maj. Slip Op. at 36. However, Dr. Armstrong’s

report indicated that the neurological defects she encountered were consistent with

“boxing and sparring with frequent head blows.” R.R. Vol. III at 18R. Moreover, she

obtained this information from Appellee. N.T., Atkins Hearing, 11/15/2011, at 104 (“He

told me that he had -- I asked him to try to quantify how many blows to the head and

gave different estimates and he could choose what he thought fit. And he said probably

at least a hundred blows to his head.”). Appellee’s mother testified that in addition to

one significant blow, there were other injuries that caused her concern. Id. at 15 (“. . .

he came home with just too many injuries. There were times when he would go to bed

at six o'clock at night and I'd have to go and keep waking him up, just to make sure that

he was all right.”); id. at 71 (“There were plenty of other times where his ear would be

swollen or, you know, bruised eye, things of that nature.”).        Whether the Majority

believes that this evidence was credible is not relevant. The fact finder accepted Ms.

Hackett’s testimony and Dr. Armstrong’s opinion in this regard, and there is record

support for it. Because the PCRA court’s finding of sub-average intellectual functioning

was amply supported by the record, this Court is bound by these factual findings.

      Moving to whether Appellee demonstrated “significant adaptive limitations,”

Williams, 61 A.3d at 983, which is the second factor from our definition of mental

retardation in Miller, we have explained that “[a]lthough an individual's I.Q. score is the

primary measurement for limited intellectual functioning, because the interaction

between limited intellectual functioning and deficiencies in adaptive skills is necessary




                              [J-73-2013] [Stevens, J.]- 26
to establish mental retardation, a sufficiently high I.Q. score, in itself, will not bar a court

from finding an individual is mentally retarded.” Williams 61 A.3d at 983; Miller, 888

A.2d at 630–31. Similarly, a low I.Q. score will not “in itself categorize a person as

mentally retarded.”     Williams, 61 A.3d at 983; Miller, 888 A.2d at 630–31.8               In

addressing the adaptive behavior criteria, we have accepted that the focus is on an

individual’s weaknesses, not his strengths. Williams, 61 A.3d at 992.

       The PCRA court heard from five experts - four for Appellee and one for the

Commonwealth - as well as lay witnesses, over the course of several days.                     It

considered the evidence presented, weighed the expert opinions, made credibility

determinations, and ultimately found, based on the totality of the evidence, that

Appellee demonstrated the adaptive limitations required by the Miller test to prove


8
        We have defined adaptive behavior as “the collection of conceptual, social, and
practical skills that have been learned by people in order to function in their everyday
lives, and limitations on adaptive behavior are reflected by difficulties adjusting to
ordinary demands made in daily life.” Williams, 61 A.3d at 983-84; Miller, 888 A.2d at
630. According to the AAIDD, significant limitations in adaptive functioning means
“performance that is at least two standard deviations below the mean of either (a) one of
the following three types of adaptive behavior: conceptual, social, or practical, or (b) an
overall score on a standardized measure of conceptual, social and practical skills.”
Williams, 61 A.3d at 983-84; Miller, 888 A.2d at 630. In addition,

       The DSM–IV requires significant limitations in at least two of the following
       skill areas: communication, self-care, home living, social/interpersonal
       skills, use of community resources, self-direction, functional academic
       skills, work, leisure, health, and safety. For assessing adaptive ability, the
       DSM–IV also considers “the suitability of the instrument to the person's
       socioeconomic background, education, associated handicaps, motivation,
       and cooperation.... In addition, behaviors that would normally be
       considered maladaptive (e.g., dependency, passivity) may be evidence of
       good adaptation in the context of a particular individual's life (e.g., in some
       institutional settings).

Williams, 61 A.3d at 983-84 (internal citations omitted).



                                [J-73-2013] [Stevens, J.]- 27
mental retardation. PCRA Ct. Op. at 15. There is a wealth of evidence to support this

finding.

       Specifically, Dr. Martell testified that in his opinion, under the DSM-IV guidelines,

Appellee was impaired in five of the eleven categories: functional academics; social and

interpersonal skills; self-direction; self-care; and safety.    All of the defense experts

agreed with Dr. Martell in this regard.     N.T., Atkins Hearing, 5/12/2011, at 38 (Dr.

Martell); id. 5/11/2011, at 65-66 (Dr. Crown); id. 11/15/2011, at 135-36 (Dr. Armstrong);

id. 5/12/2011, at 197-99 (Dr. O’Brien). The PCRA court accepted this testimony and

thus was within its discretion to conclude that Appellee was impaired in these five

adaptive functioning categories.

       With respect to functional academics, Dr. Martell reviewed Appellee’s academic

records and found clear evidence of impairment in this category. For instance, Appellee

had to repeat the first grade three times. N.T., Atkins Hearing, 5/12/2011, at 40 (“I’ve

seen a lot of people. I think this is the first time I’ve ever seen someone who had to

repeated [sic] first grade three times. That to me speaks of a very early onset and

profound impairment that one would need to do that.”).         As a result, he was placed in

the Ashbourne school, where he was labeled “brain injured” and “required intensive one

on one support and supervision as he continued to struggle academically, was

consistently behind his grade level [academically],. . . and had difficulty understanding

abstract concepts.”    PCRA Ct. Op. at 11-12; N.T., Atkins Hearing, 5/12/2011, 41

(“[Appellee] took this Metropolitan Achievement Test at age nine-and-a-half and that

placed his math and reading scores at the second grade level, which is significantly

below where one should be at that age.”); id. (noting that a progress report from when




                               [J-73-2013] [Stevens, J.]- 28
Appellee was ten stated that he “seems to still have difficulty with abstract aspects such

as the months, time and the relationship between such things as continents, countries,

states and cities.”). See also N.T., Atkins Hearing, 5/12/2011, at 40 (reading from a

1980 individualized education plan for Appellee that provided: “The multi-disciplinary

team finds [Appellee] to be brain injured and unable to benefit from a special education

program . . . at a public school special education class at this time.”); id. at 41-42 (“So

after age 10 when he would be in fifth grade, he’s functioning at a second grade level.

And then finally by . . . age 16 he was only functioning at a sixth grade level in reading

and fourth or fifth grade level in math.”).

       In addition, Appellee’s former teacher from the Ashbourne school, Judy Pezola,

testified that she taught him for a year from 1974-75, and that the school was for “kids

who were labeled learning disabled; kids who were labeled brain injured; kids who were

labeled emotionally disturbed. . .” N.T., Atkins Hearing, 5/11/2011, at 9. Ms. Pezola

recalled that when Appellee was ten years old, he read at a second grade level and

could not independently complete age appropriate academic work. Id. at 12.

       With regard to social and interpersonal skills, the PCRA court noted Dr. Martell’s

testimony that Appellee’s school records indicated significant deficits in this skill area,

referring to an Ashbourne school progress report referring to his susceptibility to

manipulation, N.T. Atkins Hearing, 5/12/2011, at 47 (“[Appellee] allows himself to be

manipulated by his classmates.”), and another progress report indicating that he did not

interact appropriately with his peers and did not tolerate frustration adequately. Id.

(“Past and present teacher observation indicate that [Appellee] does not interact




                                [J-73-2013] [Stevens, J.]- 29
appropriately with any of his peers. Does not tolerate frustration adequately.”); PCRA

Ct. Op. at 13.

         In accepting Dr. Martell’s testimony about Appellee’s social and interpersonal

skills, the PCRA court noted that it was consistent with testimony it heard from lay

witnesses such as Appellee’s mother and aunt, who testified that as a child Appellee

had few friends, had trouble making friends, and preferred to socialize with children who

were much younger. PCRA Ct. Op. at 13; N.T., Atkins Hearing, 5/13/2011, at 9-11; id.

at 82.

         Turning to the skill area of self-direction, the PCRA court accepted Ms. Pezola’s

testimony that Appellee required structure and supervision to complete a task, and that

it was necessary to provide step-by-step instructions to him. PCRA Ct. Op. at 13; N.T.,

Atkins Hearing, 5/11/2011, at 30. The PCRA court found this testimony consistent with

other testimony that Appellee was able to follow specific instructions of limited scope

and duration on his own, but was unable to follow directions on relatively simple

activities, such as learning to jump rope. PCRA Ct. Op. at 14; N.T., Atkins Hearing,

5/13/2011, at 10.

         Similarly, with respect to the skill area of self-care, the PCRA court accepted

Appellee’s expert’s opinion that his history demonstrated impairments in this area.

PCRA Ct. Op. at 15. Specifically, the PCRA court accepted testimony that Appellee

frequently wet the bed until age ten or eleven; suffered from enuresis (self-wetting) into

his teens; had difficulty tying his own shoes and using utensils consistently; and needed

supervision while getting dressed to prevent him from wearing his clothes backwards or

putting his shoes on the wrong feet. N.T., Atkins Hearing, 5/12/2011, at 48-49.




                                [J-73-2013] [Stevens, J.]- 30
       Finally, as to safety, the fifth skill area which Dr. Martell identified Appellee as

impaired, the PCRA court accepted Appellee’s evidence of several instances which

showed, in the opinions of the experts, a dangerous disregard for his own safety.

Specifically, the PCRA court noted one instance where Appellee injured himself when

he climbed a tree and attempted to remove branches with a chainsaw while intoxicated.

PCRA Ct. Op. at 15; N.T., Atkins Hearing, 5/12/2011, at 50; N.T., Atkins Hearing,

11/15/2011 at 210.       Additionally, on one Fourth of July, Appellee held onto a lit

firecracker until it exploded, and, at another time, alarmed his family members by

jumping into a waterfall without any regard for his safety. PCRA Ct. Op. at 16-17; N.T.,

Atkins Hearing, 5/12/2011, at 135-36.

       Accepting this testimony, and finding it credible, the fact finder concluded that

Appellee demonstrated adaptive limitations as required by the Miller definition of mental

retardation. In reaching this conclusion, the PCRA court considered the evidence from

Appellee’s life that indicated a lack of adaptive functioning and the expert’s testimony

providing insight into this evidence, and ultimately concluded, as the experts testified,

that some limited adaptive functioning in Appellee’s employment did not undermine the

specific lack of adaptive functioning in the five skill areas identified by Dr. Martell.

       To the extent the Majority is critical of Dr. Martell’s opinion about Appellee’s

functional academics, alleging it was formed without a complete review of all of

Appellee’s school records, see Maj. Slip Op. at 37, this fact was brought out on cross-

examination, and Dr. Martell stated that the records he had not reviewed did not alter

his opinion. N.T., Atkins Hearing, 5/12/2011, at 113. Similarly, the Majority notes that

although some members of Appellee’s family claimed he could not tie his shoes and




                                [J-73-2013] [Stevens, J.]- 31
that he wet himself, Ms. Pezola (his former teacher at the Ashbourne school) could not

recall such problems. This type of conflicting testimony is proverbial in these cases,

and is for the fact finder to evaluate.     After careful consideration, the PCRA court

accepted the family members’ testimony. The fact that there is evidence to the contrary

in the record does not invalidate the PCRA court’s finding.

       Further, the Majority faults the PCRA court for failing to recognize that when

Appellee injured himself after he climbed a tree and attempted to remove tree branches,

he was intoxicated. To the contrary, however, the PCRA court explicitly recognized this.

PCRA Ct. Op. at 15. The court nevertheless accepted Dr. Martell’s characterization of

this incident as one of three demonstrating deficits in the skill area of personal safety.

       Next, the Majority asserts that the PCRA court should have considered evidence

that, in his adult life, Appellee had no adaptive limitations that prevented him from

running a business. Maj. Slip Op. at 38. However, the PCRA court heard evidence

about Appellee’s work in this regard, and also heard expert testimony that this evidence

did not alter the experts’ ultimate opinions. Indeed, it is noteworthy that Dr. Martell

declined to find that Appellee demonstrated a lack of adaptive functioning in the skill

area of work, which is one the eleven aspects identified in the DSM-IV. See Williams,

61 A.3d at 983-84; n.3, supra. The PCRA court acknowledged that Appellee operated

two businesses, completing tasks that required a low level of intellectual ability and

which could be learned by repetition, PCRA Ct. Op. at 15, and with the assistance of

friends and family. Id.; N.T., Atkins Hearing, 11/15/2011, at 25. Ultimately, the PCRA

Court accepted the testimony of Appellee’s experts that none of Appellee’s actions or




                               [J-73-2013] [Stevens, J.]- 32
responsibilities were inconsistent with a diagnosis of mental retardation. Again, this

conclusion was well within its sound discretion.

        Further, the Majority highlights evidence in the record that shows that Appellee

was manipulative and could communicate effectively. Maj. Slip Op. at 38-39. This

evidence, however, was presented to the experts and the PCRA court, and the court

found that because Appellee showed adaptive limitations in five of the eleven

categories, he had met his burden of proving adaptive limitations as defined by the

DSM-IV and adopted by this Court in Miller.

        The PCRA court further considered evidence about a telephone conversation

recorded while Appellee was incarcerated, in which he explained stock trading and

difficult trading concepts to his mother, finding credible the conclusions of Appellee’s

experts that there was no evidence he actually understood what he was saying, and,

further, that even if Appellee understood the concepts he was explaining, it did not alter

their opinion that he was mentally retarded. N.T., Atkins Hearing, 5/11/2011, at 129-131

(Dr. Crown stating that mentally retarded people can invest in the stock market and

calculate their gains or losses); N.T., Atkins Hearing, 11/15/2011, at 144 (Dr. Armstrong

opining that hearing Appellee discuss stock trading did not alter her opinion in any

respect); N.T., Atkins Hearing, 5/11/2011, at 165 (Dr. Crown testifying that with respect

to learning about stock trading, Appellee is educable and could have been repeating

something he heard); N.T. Atkins Hearing, 5/12/2011, at 188 (Dr. O’Brien testifying that

“. . . I think the comments about the stock sales and stuff like that, I think it’s all part of

that sort of bravado to try to show how normal he is and how active he is, how functional

he is.”).




                                [J-73-2013] [Stevens, J.]- 33
       The PCRA court was capable of finding that Appellee is mentally retarded

despite the evidence presented by the Commonwealth and relied on by the Majority as

demonstrating his adaptive capabilities. Maj. Slip Op. at 37-40. See Williams, 61 A.3d

at 992 (holding that “[t]he PCRA court was capable of finding appellee is mentally

retarded although he is the main provider for his family and able to hold basic jobs. As

expressed by several of appellee's experts, the focus should be on an individual's

weaknesses—not his or her strengths—as mentally retarded people can function in

society and are able to obtain and hold low-skilled jobs, as well as have a family.”). We

have explained that the DSM–IV and AAMR's definitions of mental retardation accept an

individual's classification as mentally retarded “even though he may have relatively

strong skills in distinct categories.” Id. Accordingly, the Majority’s suggestion that the

PCRA court erred in finding that Appellee has significant adaptive deficiencies because

he could communicate effectively, run a lawn care business with the assistance of

family, or plan the murder for which he was convicted, is erroneous.

       The final criteria for mental retardation is onset of the condition before age 18.

Miller, 888 A.2d at 630. As support for finding this criteria, the PCRA court relied on the

individualized education plan from 1980 that stated Appellee was “brain injured” and

unable to benefit from public school special education, N.T., Atkins Hearing, 5/12/2011,

at 40; and a 1974 progress report from the Ashbourne school stating that Appellee had

difficulty grasping abstract concepts and could not form letters correctly, id. at 42.

PCRA Ct. Op. at 17. Additionally, the court relied on evidence that when Appellee was

ten years old, he was reading at a second grade level, and when he was sixteen, he

was functioning at a sixth grade level in reading, and a fourth or fifth grade level in math.




                               [J-73-2013] [Stevens, J.]- 34
Id.; N.T., Atkins Hearing, 5/12/2011, at 42. The PCRA court noted that this evidence

was corroborated by testimony from Ms. Pezola and Appellee’s family members. The

court’s finding as to this last criterion from Miller is adequately supported in the record.

       On the last page of the PCRA court’s opinion, it indicates that it reviewed all of

the testimony and the submitted briefs, and found that Appellee met, by a

preponderance of the evidence, the threshold definition of mental retardation defined by

this Court in Miller. PCRA Ct. Op. at 19. The PCRA court “found the testimony by

[Appellee’s] witnesses regarding these claims of intellectual development to be credible,

reliable, and persuasive and now holds accordingly that relief should be granted.” Id.

Given the testimony offered by numerous lay witnesses, the opinions of five experts,

four of whom testified Appellee has mental retardation, and the various records and

reports, the PCRA court’s determination that Appellee met his burden of establishing

that he has mental retardation is supported by the record.           I believe this Court is

constrained to affirm, notwithstanding individualized preferences to the contrary, and

therefore dissent from the Majority’s improper re-weighing of the evidence.

       Mr. Justice Saylor and Madame Justice Todd join this dissenting opinion.




                               [J-73-2013] [Stevens, J.]- 35
