Commonwealth v. Flor, 771 CAP

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: JUSTICE MUNDY
• Citation: 259 A.3d 891
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Robert Anthony FLOR, Appellant
• Docket Number: No. 771 CAP,771 CAP
• Decision Date: 22 September 2021

259 A.3d 891

COMMONWEALTH of Pennsylvania, Appellee
v.
Robert Anthony FLOR, Appellant

No. 771 CAP

Supreme Court of Pennsylvania.

Submitted: December 19, 2019
Decided: September 22, 2021

Hunter Stuart Labovitz, Esq., Peter Konrad Williams, Esq., Federal Community Defender Office, Eastern District of PA, for Appellant.

Ronald Eisenberg, Esq., Pennsylvania Attorney General's Office, Philadelphia, Jill Marie Graziano, Esq., Bucks County District Attorney's Office, for Appellee.

BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

Justice Mundy delivers the opinion of the Court with respect to Parts I, II, III(G), VI, and VII, in which Chief Justice Baer, Justice Saylor, and Justice Dougherty join; Justice Wecht delivers the opinion of the Court with respect to Parts II and III of his expression, in which Justices Saylor, Todd, and Donohue join. Justice Mundy announces the judgment of the Court with respect to all other issues.

OPINION

JUSTICE MUNDY

In this capital case, Appellant, Robert Flor, appeals from the order of the Court of Common Pleas of Bucks County denying his first, timely petition for post-conviction relief filed pursuant to the Post Conviction Relief Act (PCRA).¹

I. Background

On October 23, 2006, Appellant entered a plea of guilty to the first-degree murder of Officer Brian Gregg, of the Newtown Borough Police Department. He further entered pleas nolo contendere to various other charges in connection with the events of September 29, 2005.²

In preparation for the penalty phase, counsel for Appellant retained and consulted with a number of experts to evaluate, ascertain, and report on potential mitigation factors.³ Specifically, counsel attempted to prove that Appellant was under the influence of extreme emotional disturbance; Appellant's capacity to conform his conduct to the requirements of law was substantially impaired; and any other evidence of mitigation concerning the character and record of Appellant and the circumstances of the offense, referred to often as the "catch-all" mitigator. See 42 Pa.C.S. § 9711(e)(2), (3), and (8). In support of those mitigating factors, Appellant

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offered evidence to demonstrate he had brain damage, mental impairments, emotional disturbances, impairments caused or exacerbated by alcohol and drug abuse, and a family upbringing marked by abuse and neglect. See Flor , 998 A.2d at 626. In addition to a number of Appellant's family members testifying on his behalf, and of particular relevance to his first claim, Appellant offered expert testimony which this Court previously summarized as follows:

After the testimony of the family witnesses, the following three mental health experts, who had been retained by Appellant, then testified: (1) Dr. Jonathan Mack, a neuropsychologist and forensic psychologist who, in the weeks prior to the penalty hearing, subjected Appellant to an extensive neuropsychological evaluation to determine if brain damage was present, and the extent and effect of any such damage, N.T., 11/13/06, at 100–05, 109–10; (2) Dr. Pogos Voskanian, a physician certified in psychiatry and forensic psychiatry who conducted a psychiatric evaluation of Appellant involving four personal interviews, beginning in October 2005, as well as interviews of Appellant's mother and grandmother, and review of relevant records and collateral information, N.T., 11/14/06, at 74–75, 81–83; and (3) Dr. Alan Tepper, a psychologist and attorney, who conducted a psychological evaluation of Appellant a few weeks prior to the penalty hearing, and reviewed background materials to assess possible mitigation factors. Id. at 158, 163–64.

All three of the mental health experts concluded that Appellant suffered from one or more mental illnesses. Their diagnoses, which were not identical but did overlap, included the following: major depressive disorder, severe without psychotic features; bipolar disorder, manifesting predominantly as depression; dementia ; personality change due to brain damage (also known as organic personality syndrome) of the labile, disinhibitive, and aggressive type; post-traumatic stress disorder, related to various childhood traumas; and personality disorder, not otherwise specified. All the experts recognized Appellant's long history of alcohol and drug abuse, and agreed that he exhibited borderline intellectual functions. In addition, the experts found several events to have been significant to Appellant's state of mind at the time of Officer Gregg's murder, i.e., Appellant's loss of the custody of his young daughter, his domestic dispute with the child's mother, his drinking of alcohol, and his arrest. In the opinion of the three defense experts, on the day of Officer Gregg's murder, Appellant was acting under the influence of extreme emotional disturbance and was substantially unable to conform his conduct to the requirements of the law, due to some combination of mental illness, intoxication and long-term substance abuse, and recent stressful experiences. N.T., 11/14/06, at 28–29, 128–29; N.T., 11/16/06, at 39–41. Each expert reached these conclusions from his distinct perspective.

Dr. Mack opined that Appellant had sustained mild to moderate brain damage, caused by a series of head injuries and chronic alcohol abuse. N.T., 11/14/06, at 8–11, 17, 23–24. Dr. Mack further opined that Appellant's brain damage had resulted in the loss of an "internal brake" in his brain, which normally functions to inhibit inappropriate responses or inappropriate behavior due to anticipation of negative consequences. N.T., 11/13/06, at 167–68; N.T., 11/14/06, at 18–19. Dr. Mack explained that alcohol consumption exacerbated Appellant's problems: "You add those two [loss of

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the internal brake and alcohol consumption] together and you get even worse disinhibition, disinhibition of brain functions, but [Appellant's] brain is bad without alcohol. He's missing his brain, to a large extent, regardless of whether he's on mood altering substance, or sedating substances or not." N.T., 11/13/06, at 167–68. In addition, Dr. Mack opined that it was "very likely [that Appellant was] in major depressive disorder at the time of the incident in question, as triggered by the removal of his daughter by Children and Youth Services, a few weeks prior, and severe fighting, dysfunction with his daughter's mother." N.T., 11/14/06, at 20.

Dr. Voskanian opined that, at the time of Officer Gregg's murder, Appellant was suffering from bipolar disorder and from alcohol and cocaine dependence, and in addition was acutely intoxicated. N.T., 11/14/06, at 83. Dr. Voskanian determined that Appellant's bipolar disorder manifested predominantly as depression, and he suggested multiple causes, including his genetic background, his traumatizing upbringing, his substance abuse, and/or his head injuries. Id. at 119–20. Finally, in Dr. Voskanian's view, "the entire rampage at the emergency room, it starts after [Appellant] shot himself in the hand and he could see the emergency room through the hole of the gunshot wound through his hand. That's when he completely loses any volition and control over his behavior." Id. at 128.

Dr. Tepper testified regarding Appellant's long history of treatment for drug and alcohol abuse and dependence, beginning in 1992, and then continuing in March 1999, from November 2002 to February 2003, in April 2004, and in February 2005. Finally, on September 20, 2005, just nine days before Officer Gregg's murder, Appellant began drug and alcohol treatment as part of a program to regain custody of his daughter. N.T., 11/16/06, at 16–23. Dr. Tepper also focused on Appellant's poor problem-solving skills. Specifically, he testified as follows: "[w]ell, [Appellant], when he is sober and somewhat stable, he has real modest ability to solve problems. If he's more upset, angry, impulse [sic], high, drugged, those problem solving abilities are going to be diminished even further." Id. at 26–27; see also id. at 34 ("under times of stress, under times of difficulty, when feeling angry, when getting mad, getting upset, if he's drinking, if he's high or intoxicated, modest problem solving skills he has, are only going to be diminished further. There's also the underlying brain damage so that influences how he interacts and reacts in general and that is going to be aggravated with, if not stress, specifically when he's under the influence of alcohol or drugs."). With regard to Appellant's emotional functioning, Dr. Tepper opined that Appellant's "cumulative history of developmental interferences [from his childhood] ... really disabled him from later developing a strong kind of sense of himself and ability and confidence." Id. at 29. Finally, Dr. Tepper testified that Appellant had difficulty with "impulse control," which rendered him at times unable to control himself. Id. at 37–41. On the day of Officer Gregg's murder, Dr. Tepper opined, Appellant was behaving in an "impulsive" way, "meaning that he was making threats, that he was talking about either [sic] hurting individuals. He talked about killing himself. He'd been drinking alcohol." Id. at 36.

Thus, as summarized above, the defense experts all concluded that Appellant had difficulty controlling his behavior and his actions. Furthermore, the

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