Com. v. Gorby

• Decision Date: 20 June 2006
• Citation: 909 A.2d 775
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Thomas J. GORBY, Appellant.
• Court: Pennsylvania Supreme Court

Page 775

909 A.2d 775

COMMONWEALTH of Pennsylvania, Appellee, v. Thomas J. GORBY, Appellant.

Supreme Court of Pennsylvania.

Submitted March 27, 2003.

Decided June 20, 2006.

Dennis Ralph Paluso, Esq., Billy Horatio Nolas, Esq., Washington, for Thomas J. Gorby.

Michael Joseph Fagella, Esq., Amy Zapp, Esq., Washington, for Commonwealth of Pennsylvania.

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

OPINION

Justice SAYLOR.

After multiple remands in this capital post-conviction appeal, we resolve Appellant's layered claim of ineffective assistance of counsel deriving from his trial counsel's investigation and presentation of sentencing mitigation.

The background underlying Appellant's conviction for first-degree murder and subsequent death sentence is set forth in Commonwealth v. Gorby, 527 Pa. 98, 588 A.2d 902 (1991). Briefly, the killing occurred in December 1985 after Appellant asked Drayton Spahr, the victim, for a ride from one tavern to another. Upon arrival, Appellant killed Mr. Spahr in his car, using a knife. Later, Appellant appeared at both taverns in clothes bearing markings from dried blood and displayed the victim's wad of money, distinctive belt, and wallet. See id. at 104-05, 588 A.2d at 904-05. At one point, Appellant produced his bloodstained knife and used it to shave hair from a bartender's arm; in statements to police, witnesses characterized Appellant's appearance and behavior as highly irregular.

In preparing for the penalty phase of trial, Appellant's trial counsel was aware that: there were accounts of his client having behaved irrationally around the time of his offenses; Appellant had abused intoxicating substances from the time of his early youth; he had a "rough childhood"; he performed poorly in school and in educational testing despite normal intelligence; he had had various encounters with the juvenile justice system; and he had been hospitalized on one or more occasions, including as a result of a head injury suffered in an automobile accident at 18 years of age. Nevertheless, counsel did not believe that any of these circumstances represented, or presented a basis for further inquiry into, potential mitigation. Trial counsel formed his conclusion largely based on his interviews with Appellant and his mother, Betty Stevens, and step-father, Gilbert Stevens. He did not obtain medical, educational, or social-history records, nor did he consult a mental-health professional during his investigation and preparation.

Immediately after Appellant's conviction and prior to the penalty phase of trial, Appellant's trial counsel appeared to express some uncertainty in terms of the presentation of mitigating circumstances at a capital trial.¹ Counsel proceeded to offer a single mitigation witness, Appellant's step-father, whose entire direct testimony proceeded as follows:

Q Would you state your full name for the record please.

A Pardon me?

Q State your full name for the record.

A Gilbert L. Stevens

Q And what is your address?

A R.D. 2, Box 110, Eighty-Four, Pa.

Q What is your relationship to Mr. Gorby?

A He's my stepson.

Q Prior to December 21st, 1985, within the few months immediately prior to that, was he working with you or for you?

A He worked for me. We cut wood and stuff like that around the house. He helped me build my home.

Q What kind of work would he do for you when he was helping you build your home?

A We laid the block; most of the block he helped me with and roughed in the decks. The walls I put up later.

Q What kind of a worker was he?

A He worked with me all day long. He worked pretty hard, I'd have to say a good worker.

Q Would he work with you on a regular daily basis?

A Pardon me?

Q Would he work with you on a regular daily basis?

A No. If I asked him to do something he would always give me a hand. He never refused unless he had somewhere to go or something to do.

Q Your Honor, I have no other questions.

N.T., at 1097-98.

In his brief closing penalty-phase argument before the jury,² Appellant's trial counsel suggested that it could be inferred from the circumstances surrounding the killing that Appellant had been drinking; contended that the Commonwealth had not established a motivation or precipitating event relative to the killing; reminded the jurors of the gravity of their decision and the difficulty of counsel's own position; entreated them not to make a mistake; and referenced the mitigation evidence that he had presented solely on the following terms:

You heard testimony of Gilbert Stevens now, who is the stepfather, you have heard the testimony of Betty in the case. Again this doesn't count here. What counts is the testimony that Mr. Stevens gave you.

N.T., at 1102.³ Counsel sought and obtained a charge describing the mitigating circumstance delineated in Section 9711(e)(3) of the death penalty statute, prescribing that mitigating circumstances shall include the capacity of a capital defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law, 42 Pa.C.S. § 9711(e)(3), but he did not frame the evidence in such terms in his closing remarks to the jury. Moreover, in its charge to the jurors, the trial court did not mention the catch-all mitigator authorizing consideration of "[a]ny other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense," 42 Pa.C.S. § 9711(e)(8), and counsel voiced no objection, although this was the only category of mitigation within which the affirmative evidence that counsel had presented in the penalty phase potentially could be assessed. The jurors unanimously found the aggravating circumstances alleged by the Commonwealth to have been established beyond a reasonable doubt,⁴ and each juror determined that Appellant had failed sufficiently to establish any mitigating circumstance, thus requiring the imposition of a death sentence. See 42 Pa.C.S. § 9711(c)(1)(iv) (prescribing that "the verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance specified in subsection (d) and no mitigating circumstance or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances").

In January 1996, Appellant filed a petition for relief under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, which was supplanted by an amended petition filed by appointed counsel. Appellant averred, inter alia, that his trial counsel failed to investigate, develop, and present mitigating evidence concerning his life history and mental-health condition, including evidence of abuse and neglect suffered during his childhood and major mental health impairments, for example, cognitive disorder diminishing, inter alia, his ability to reason, make sound judgments, and control impulses. According to the petition, the "good worker" evidence that counsel did actually adduce was paltry and dwarfed by the other available and compelling mitigation. The petition averred that counsel's deficient stewardship stemmed from his failure to undertake a sufficient and reasonable mitigation investigation, including failures to speak with readily available life-history witnesses, obtain medical and social history records, and explore mental-health issues that were obviously of potential relevance as indicated by the circumstances of Appellant's background and his offenses. Further, Appellant alleged that a mental-health expert, with knowledge of Appellant's violent, chaotic, and unhappy childhood, and his history of cognitive and psychological impairments, would have explained to the jury the long-lasting and debilitating effects of such conditions, including the impact on Appellant's affect and behavior, thus suggesting some lesser degree of moral culpability in terms of the decision whether to impose a life or death sentence. The petition also alleged that the abjectness of counsel's deficient performance was manifested by his confusion connected with the presentation of mitigation; his failure to adequately develop the mitigation claim deriving from Appellant's asserted intoxication; and the basic failure to obtain an instruction under Section 9711(e)(8) of the death penalty statute to furnish the jury with some framework for considering the limited evidence that counsel did adduce, or at least to lodge an objection to the omission of such charge. Finally, the petition averred that Appellant's counsel on direct appeal was ineffective for omitting from the appeal any challenge to trial counsel's stewardship, which allegedly would have required relief from the death sentence.

In support of his petition, Appellant submitted numerous declarations containing life-history and mental-health information within recognized categories of mitigation in capital sentencing proceedings. For example, the declarations included ones from Appellant's mother and two aunts attesting to his rearing in an impoverished, dysfunctional household;⁵ Appellant's separation from his two sisters at an early age; verbal and physical abuse of Appellant throughout his early childhood, for example, in the form of frequent beatings by household members and sexual molestation by other persons; Appellant's witnessing of violent and life-threatening altercations between his mother and her several husbands that resulted in physical impairments to her, as well as Appellant's unsuccessful efforts as a youth to defend her on such occasions;⁶ the discharge of firearms in the household as a fear tactic; Appellant's abnormal behavior in rocking and banging his head against walls and objects for several hours on multiple occasions; and the decision of Appellant's step-father to ultimately bar him from the household in his teenage years, rendering him homeless throughout a substantial portion of that period of his life. Most of these declarants indicated that trial c...