Com. v. Stevens

• Citation: 559 Pa. 171,739 A.2d 507
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Andre STEVENS, Appellant.
• Decision Date: 27 October 1999
• Court: Pennsylvania Supreme Court

559 Pa. 171

739 A.2d 507

COMMONWEALTH of Pennsylvania, Appellee, v. Andre STEVENS, Appellant.

Supreme Court of Pennsylvania.

Submitted December 29, 1998.

Decided October 27, 1999.

Reargument Denied December 30, 1999.

Robert Brett Dunham, James Moreno, Philadelphia, for A. Stevens.

Ahmed Aziz, Beaver, Robert S. Graci, Harrisburg, for Commonwealth.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

NEWMAN, Justice.

Andre Stevens (Appellant) appeals from the denial of his first petition pursuant to the Post Conviction Relief Act (PCRA).¹ We affirm.

I. FACTUAL AND PROCEDURAL HISTORY

On direct review of Appellant's two murder convictions, this Court summarized the relevant facts as follows:

[t]he record reveals that on February 8, 1992, Appellant was in Armando's Bar seated at the end of the bar closest to the entrance. At approximately 1:00 a.m., Brenda Jo Stevens, Appellant's estranged wife, entered the establishment with friends, walked past Appellant and took a seat near the opposite end of the bar. Shortly thereafter, Stevens and [Michael] Love, an acquaintance whom she had met a few months earlier, entered the crowded dance floor and began dancing.

When he saw them dancing together, Appellant left the bar and went to his car, which was parked across the street. There he retrieved a nine-millimeter semi-automatic pistol loaded with hollow point bullets. Appellant then returned to Armando's and made his way across the dance floor, cocking his gun as he proceeded. As Stevens and Love were leaving the dance floor in different directions, Appellant opened fire on them. He shot his estranged wife twice in the head. Appellant then turned toward Love and fired a series of shots into his body. After a brief pause, Appellant fired a final shot into Love's scrotum area and then calmly left the bar. Love remained in a state of consciousness while first aid was administered to him. However, he later died as a result of the multiple gunshot wounds.

Commonwealth v. Stevens, 543 Pa. 204, 208, 670 A.2d 623, 625,cert. denied, 519 U.S. 855, 117 S.Ct. 151, 136 L.Ed.2d 96 (1996).

At the guilt phase of his trial, Appellant waived his right to a jury trial and was convicted of two counts of first-degree murder on April 21, 1993. For the penalty phase, Appellant requested a jury, which sentenced him to death on both murder counts. On direct review, we affirmed Appellant's death sentences. Commonwealth v. Stevens, 543 Pa. 204, 670 A.2d 623 (1996). On November 6, 1996, Appellant filed a pro se PCRA petition. The PCRA court appointed counsel and Appellant filed an amended PCRA petition on March 10, 1997, raising numerous issues. The trial court held hearings on Appellant's petition, limited to two issues: first, whether trial counsel should have conducted additional investigation on mental health issues; second, whether the proportionality review conducted by this Court violated Appellant's Fifth, Sixth, Eighth, and Fourteenth Amendment rights. On April 29, 1998, the trial court denied Appellant's petition. This appeal followed.

II. DISCUSSION

A. Trial Counsel's Failure to Develop Mental Health Defense/Mitigation

From January 26, 1998 until January 29, 1998, the PCRA court conducted hearings on Appellant's claim that trial counsel was ineffective for failing to provide Appellant's mental health experts with documentation relative to Appellant's mental stability at the time of the murders. According to Appellant, this information would have allowed him to present expert testimony to make obvious that he was unable, due to his mental illness, to conform his conduct to the requirements of the law. Appellant also asserts that trial counsel was ineffective, therefore, for: (1) failing to present a diminished capacity defense that would have been available had this information been provided to his mental health experts at the time of his trial; (2) failing to present expert testimony that would have established a "diminished mental capacity", which would demonstrate a mitigating circumstance pursuant to Section 9711(e)(3);² and (3) failing to present expert testimony that would have established mitigating circumstances pursuant to the "catch-all" mitigating factor found at Section 9711(e)(8).³ Appellant also maintains that, to the extent that trial counsel pursued mental-illness mitigation evidence, he did so ineffectively by failing to develop more detailed expert testimony concerning the nature and extent of Appellant's mental illness. Appellant maintains that he is entitled to a new trial or, alternatively, a new sentencing hearing due to the alleged ineffectiveness of trial counsel.

When a petitioner alleges trial counsel's ineffectiveness in a PCRA petition, he must prove by a preponderance of the evidence that his conviction or sentence resulted from ineffective assistance of counsel "which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S. § 9543(a)(2)(ii). We have interpreted this provision in the PCRA to mean that the petitioner must show: (1) that his claim of counsel's ineffectiveness has merit; (2) that counsel had no reasonable strategic basis for his action or inaction; and (3) that the error of counsel prejudiced the petitioner — i.e., that there is a reasonable probability that, but for the error of counsel, the outcome of the proceeding would have been different. See Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999)

. We

presume that counsel is effective, and it is the burden of Appellant to show otherwise.

The documents and information that form the bases of these ineffective claims concern the mental illness of the Appellant at the time of the murders. First, Appellant points to twenty-two pages of handwritten notes taken from his residence during the execution of a search warrant at the time of his arrest. They can be loosely described as a journal, and were probably written during a period of time before the murders. In his testimony at the PCRA hearing, Dr. Rodney Steven Altman, a board-certified psychiatrist who assisted in the presentation of Appellant's mitigation case, described these notes as "fragmented," "scattered," "disorganized," "rambling," "confused," and "psychotic." Dr. Altman testified that the notes contained symbolism that was indicative of schizophrenic illness, and that the sequence of words and phrases was "perseverative,"⁴ which Dr. Altman explained as "where the speech or thought process is stuck in a certain topic or certain word or certain phrase or certain rhyming quality." As an example of the perseverative quality of Appellant's journal, Dr. Altman noted the unrelated grouping of the words "Bill Cosby, Bill Cousins, Bob Babich, Conrail, Bert," in this repetitive, rhyme-type of cadence. Dr. Altman testified that trial counsel did not give him this journal at the time he evaluated Appellant.⁵ The next source of information that Appellant contends his trial counsel was ineffective for failing to produce to his mental health experts at the time they evaluated Appellant prior to, and during trial, concerns aspects of Appellant's social and medical history. At the PCRA hearing, Appellant presented the testimony of his older sister, Rosemary Postich, who described two instances where Appellant suffered head injuries as a young child.⁶ Ms. Postich explained that Appellant did not walk or talk until rather late in his childhood and that he was a loner. She testified that their father was an alcoholic, and that their mother was a "dramatic" person who, in the children's presence, would threaten to kill herself or to leave the family. Ms. Postich stated that although Appellant's counsel interviewed her for approximately half an hour and she testified at Appellant's trial, counsel never questioned her about Appellant's childhood. Also at the PCRA hearing, Appellant presented the testimony from another older sister, Constance Corbitt, who corroborated much of Ms. Postich's testimony about their childhood family situation, and who also described the changes in Appellant's behavior that occurred during the periods of Appellant's separation from Brenda Jo Stevens, including his heavy drinking, substantial weight loss, and overall depression. Ms. Corbitt further testified that she was never contacted by Appellant's counsel and was not called to testify during the trial, although she was present for some of it. Appellant also presented testimony from his daughter, Karen Mangieri (formerly Karen Stevens), who had testified at the sentencing phase of Appellant's trial. She testified at the PCRA hearing that she had informed counsel of various episodes that indicated Appellant's mental illness, including paranoid suspicions about Brenda Jo Stevens using illegal drugs and abusing their grandchild.⁷ Ms. Mangieri testified that counsel did not question her about these episodes during Appellant's trial.

The final source of information that Appellant contends his trial counsel was ineffective for failing to produce to his mental health experts are the complete records of psychiatric evaluations conducted while Appellant was in the military in the 1960s. These records indicated that Appellant had been discharged from the service due to his psychological problems, and documented a specific episode where Appellant punched a waitress. Dr. Altman testified that counsel gave him some of Appellant's military records at the time of his initial evaluation, but he had never seen the "majority" of the records introduced at the PCRA hearing.

1. Guilt Phase Ineffectiveness

Appellant asserts that trial counsel's failure to produce the journal, and failure to provide the mental health experts with more information concerning his social history and past record of mental illness, denied him the ability to present a defense of...