Com. v. Gibson

Citation940 A.2d 323
PartiesCOMMONWEALTH of Pennsylvania, Appellee v. Ronald GIBSON, Appellant.
Decision Date02 December 2005
CourtUnited States State Supreme Court of Pennsylvania

BEFORE: CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.

ORDER

PER CURIAM.

AND NOW, this 2nd day of December, 2005, this matter is remanded for evidentiary development and findings and conclusions, limited to the claim of ineffectiveness assistance of counsel on direct appeal associated with Claim No. III raised in Appellant's brief in this Court (styled as "The PCRA court erred in concluding that trial counsel's failure to investigate and present evidence of Appellant's severe intoxication at the time of the murders, history of drug and alcohol abuse, and of his dysfunctional family life did not constitute ineffective assistance where trial counsel[ candidly admitted that he undertook absolutely no investigation into potential penalty phase defenses"). In its opinion containing the factual findings and conclusions of law, the PCRA court is directed to address all aspects of the layered ineffectiveness claim, including the underlying claim of ineffective assistance of trial counsel.

Supplemental briefing in this Court is authorized, with Appellant's brief (if any) being due within 30 days after due notice to counsel following the docketing of the PCRA court's opinion, and any supplemental briefing by the Commonwealth's being due within 15 days thereafter.

Jurisdiction is retained.

Chief Justice CAPPY and Justice BAER are with the PER CURIAM remand order.

Justice NIGRO files a concurring and dissenting statement.

Justice EAKIN files a dissenting statement in which Justice CASTILLE and Justice NEWMAN join.

Justice NIGRO, concurring and dissenting.

I agree with the majority that Appellant is entitled to a remand regarding his layered ineffectiveness claim that appellate counsel was ineffective for not raising trial counsel's failure to investigate and present certain mitigating evidence at his penalty phase hearing, but I differ as to the scope of the remand to which Appellant is entitled. While the majority remands this matter for a full evidentiary hearing on Appellant's claim, and specifically on Appellant's claim as it relates to trial counsel, I would only remand the matter to allow Appellant to properly develop his claim of appellate counsel's ineffectiveness pursuant to this Court's decision in Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014 (2003), as I believe Appellant has already demonstrated on the record before us that trial counsel was ineffective at Appellant's penalty phase hearing.

The facts relevant to the only issue subject to the majority's remand are as follows. Appellant was originally represented by Thomas Ciccone, Esq., a court-appointed attorney. A few days before trial, Appellant retained Oscar Gaskins, Esq. to represent him. Given that he was hired only a short time before Appellant's trial was set to begin, Gaskins claims to have filed a motion for a continuance, which, according to Gaskins, the trial court denied. The case proceeded to trial as scheduled on October 3, 1991, and the jury returned a guilty verdict against Appellant late in the afternoon of October 9, 1991. Appellant's penalty phase hearing began first thing the following morning, for which Gaskins readily admits he was unprepared. In his affidavit/declaration attached to Appellant's PCRA petition, Gaskins states point-blank that he "did not have time to investigate the penalty phase." Affidavit/Declaration of Oscar Gaskins at 2. Nor was Gaskins able to rely on previous preparation done by Appellant's prior trial counsel as Ciccone states in his own affidavit/declaration that "at the time that I turned the case over to Gaskins, I had not investigated or prepared a penalty phase defense." Affidavit/Declaration of Thomas Ciccone at 1.

Appellant now claims that had trial counsel conducted any kind of investigation for the penalty phase, he would have discovered valuable evidence of mitigation, including evidence of Appellant's severe mental health impairments and dysfunctional family life. In support of his claim, Appellant points to, among other things, a mental health evaluation conducted three years before, an affidavit from a forensic psychiatrist outlining evidence of Appellant's mental impairment, and evidence of Appellant's dysfunctional family history, including the fact that both of `Appellant's parents abused alcohol, that Appellant's father beat his mother, and that Appellant made suicide threats as a child. Given counsel's clear admission that he did not even attempt to investigate whether this or any other potential evidence of mitigation existed, and given that such evidence did in fact exist, it is clear, at least to me, that Appellant has demonstrated on the record before us that his ineffectiveness claim has arguable merit. See Commonwealth v. Malloy, 579 Pa. 425, 856 A.2d 767, 787-88 (2004) (appellant's claim that trial counsel was ineffective for failing to present certain mitigating evidence, including evidence that appellant suffered an abusive childhood and was abandoned by his drug-addicted mother, had arguable merit where appellant established that such evidence was discoverable and could have been forwarded in mitigation had counsel undertaken even a minimal investigation).

Appellant has also shown, in my mind, that counsel had no reasonable basis for failing to investigate and present this mitigating evidence. In finding otherwise, the PCRA court below first noted that Gaskins actually presented nine witnesses at Appellant's penalty phase hearing, who basically testified that Appellant was well-liked, respectful, a good student, and a good father. One of the nine witnesses, Appellant's mother, also testified that Appellant had been left by his father at a young age and grew up in a bad neighborhood. The PCRA court found, in effect, that the presentation of this testimony constituted a reasonable strategy on the part of Gaskins. However, as the trial investigator hired by Gaskins states in his own affidavit/declaration:

I did not conduct a penalty phase investigation. Mr. Gaskins and I got a list of names from [Appellant] of people who could "cry and beg" the jury not to sentence [Appellant] to death. I never had time to interview any of these witnesses. I was unable to collect relevant records. Mr. Gaskins was forced to ... put defense witnesses on the stand, in both the guilt/innocence and penalty phase, cold. He had no idea what they would say.

Affidavit/Declaration of Karim Shabazz at 3.1 Given these circumstances, I simply do not see how the PCRA court could find that counsel's strategy was reasonable, when the evidence shows that such a strategy amounted to little more than blindly throwing witnesses up on the stand with the mere hope that they would offer some sort of testimony that would resonate with the jury. In any event, in light of counsel's admission that he conducted no investigation whatsoever for the penalty phase, it is clear to me that counsel's decision not to present the mitigating factors Appellant cites to here was not one based upon a reasonable strategy. See Wiggins v. Smith, 539 U.S. 510, 527-28, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (reasonableness of strategy depends upon reasonableness of investigation); Malloy, 856 A.2d at 788 (counsel's failure to present mitigating evidence regarding appellant's background was not based on reasonable strategy where record showed that counsel did not even conduct cursory review of appellant's background and failure to present evidence was not caused by appellant's or appellant's family's failure to cooperate in supplying information).

Finally, I believe that Appellant has also shown that he was prejudiced by counsel's admitted failure to conduct any investigation at all for the penalty phase. Such a failure ultimately resulted in the jury being deprived of important evidence in deciding whether or not certain mitigating factors were applicable or had been established. Instead, the only non-record-based mitigating evidence presented by counsel was a series of witnesses who, although counsel had "no idea what they would say," were called upon to "cry and beg" for Appellant's life.2 Under these circumstances, and where the jury ultimately found and weighed one mitigating circumstance against the three aggravating circumstances it also found, I agree with Appellant that had counsel done any investigation for the penalty phase and presented the mitigating evidence that such investigation would have uncovered, there is a reasonable probability that the ultimate outcome of the jury's penalty phase deliberations would have been different.3

In the end, I believe that Appellant has aptly demonstrated that trial counsel was ineffective for failing to conduct any investigation for his penalty phase hearing. Indeed, in support of his claim, Appellant has furnished this Court, as he did the PCRA court below, with what really amounts to a "smoking gun," a signed statement from his attorney all but conceding that he was ineffective by failing to conduct any investigation or meaningful preparation whatsoever for Appellant's penalty phase hearing. Appellant has also provided this Court, again as he did the PCRA court below, with evidence of mitigation that was discoverable and could have been presented at his penalty phase hearing had his counsel undertaken even a minimal investigation. I simply fail to see what additional support for his claim the majority expects Appellant to produce at an evidentiary hearing or indeed, what other evidence Appellant needs to produce above and beyond what he has already provided to the Court.

While I would not remand for an evidentiary...

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6 cases
  • Commonwealth v. Keaton
    • United States
    • United States State Supreme Court of Pennsylvania
    • May 30, 2012
    ...than painting him as the deranged product of a horrific background, is often a reasonable one. See Commonwealth v. Gibson, 596 Pa. 1, 940 A.2d 323, 327 (2005) (Eakin, J., dissenting) (noting two types of mitigating evidence: focusing on defendant's positive traits in order to establish his ......
  • Com. v. Gibson
    • United States
    • United States State Supreme Court of Pennsylvania
    • July 24, 2008
    ...Appellant's positive qualities at the penalty phase, and this was not an unreasonable strategy. See Commonwealth v. Gibson, 940 A.2d 323, 327-29 (Pa.2005) (Eakin, J., dissenting statement); Majority Op., at 1117 n. 3. I now dissent from this second remand to the PCRA Although claims of tria......
  • Com. v. Cam Ly
    • United States
    • United States State Supreme Court of Pennsylvania
    • October 1, 2009
    ...penalty phase where trial counsel "called no witnesses and presented no evidence at Jones' penalty hearing"); Commonwealth v. Gibson, 596 Pa. 1, 940 A.2d 323 (2005) (per curiam) (remanding for PCRA evidentiary hearing on claim of ineffective assistance of appellate counsel based on ineffect......
  • Commonwealth of Pa. v. Gibson
    • United States
    • United States State Supreme Court of Pennsylvania
    • May 12, 2011
    ...issue that arose in the proceedings on remand concerned his possible state of intoxication at the time of the offenses. See Gibson II, 596 Pa. at 1, 940 A.2d at 323 (remanding for a hearing on the ineffectiveness claim based on counsel's failure “to investigate and present evidence of Appel......
  • Request a trial to view additional results

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