Commonwealth v. Robinson

• Decision Date: 27 December 2013
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Harvey Miguel ROBINSON, Appellant.
• Court: Pennsylvania Supreme Court

82 A.3d 998

COMMONWEALTH of Pennsylvania, Appellee

v.Harvey Miguel ROBINSON, Appellant.

Supreme Court of Pennsylvania.

Submitted May 30, 2013.

Decided Dec. 27, 2013.

Eric John Montroy, Esq., Ayanna Williams, Esq., Federal Community Defender Office, Eastern District of PA, James H. Moreno, Esq., Defender Association of Philadelphia, for Harvey Miguel Robinson.

Heather F. Gallagher, Esq., Havertown, Stephen Michael VanNatten, Esq., Allentown, Lehigh County District Attorney's Office, Amy Zapp, Esq., Harrisburg, PA Ofice of Attorney General, for Commonwealth of Pennsylvania.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, and STEVENS, JJ.

OPINION

Chief Justice CASTILLE.

This is a capital appeal from the order of the Court of Common Pleas of Lehigh County denying appellant Harvey Miguel Robinson's first petition for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546. For the reasons that follow, we affirm the order of the PCRA court.

I. Background

The facts underlying appellant's conviction and sentence of death are discussed more fully in appellant's direct appeal, Commonwealth v. Robinson, 581 Pa. 154, 864 A.2d 460, 471–78 (2004), cert. denied,546 U.S. 983, 126 S.Ct. 559, 163 L.Ed.2d 470 (2005)( Robinson I ). In order to place appellant's current claims in context, some background is required.

The evidence adduced at trial and summarized more fully in Robinson I established that appellant raped and brutally murdered three women in separate incidents over a one-year span. The first rape and murder occurred in early August of 1992, with the dead and battered body of victim Joan Burghardt, who had been dead for some time, found in her apartment in Allentown on August 9. Appellant was seventeen at the time he raped and bludgeoned Ms. Burghardt to death. The second rape and murder occurred in Allentown on June 9, 1993, the victim being fifteen-year old Charlotte Schmoyer, who apparently was abducted while delivering newspapers. Appellant had viciously stabbed the young girl twenty-two times, including at least two wounds up to the hilt of the four-inch knife he used; he then dumped the child's body in a heavily wooded area.¹ A month later, on July 14, 1993, the dead body of Jessica Jean Fortney was found in the bedroom of her home in Allentown. Appellant had raped Ms. Fortney and then beat and strangled her to death.

The three murders were consolidated and tried together before a jury beginning on October 10, 1994. A primary witness for the Commonwealth at trial was Denise Sam–Cali, who had survived a similar rape and murderous assault by appellant in her Allentown home on June 28, 1993. The rape and assault on Ms. Sam–Cali thus took place less than three weeks after the murder of Ms. Schmoyer, and two weeks before the murder of Ms. Fortney. The attack followed a similar trajectory as the other rapes and murders.

Prior to the capital murder trial, appellant pled guilty to three counts of burglary, two counts of attempted criminal homicide, and two counts of firearms not to be carried without a license, relating to the multiple attacks on Ms. Sam–Cali.² In November 1994, following the guilt phase portion of the serial murder trial, the jury returned a guilty verdict of first-degree murder for each murder as well as guilty verdicts on all remaining charges. Appellant was represented by Carmen Marinelli, Esquire, at the guilt phase.

The trial then proceeded to the penalty phase and appellant presented testimony from family and friends and the expert testimony of Dr. Robert Sadoff, a forensic psychiatrist. Dr. Sadoff testified that, inter alia, appellant had an “anti-social personality disorder.” Appellant did not take the stand and testify on his own behalf. Following the presentation of evidence at the penalty phase, the jury found the following aggravating circumstances as to each murder: (1) the killing was committed during the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6); (2) appellant had a significant felony history involving the use or threat of violence, id. § 9711(d)(9); and (3) appellant was convicted of another murder before or at the time of the present murder, id. § 9711(d)(11). The jury also found the torture aggravator, id. § 9711(d)(8), respecting the murders of Ms. Schmoyer and Ms. Burghardt. The jury further concluded that the multiple aggravating circumstances outweighed a single mitigating circumstance it found respecting each case, i.e., the catch-all mitigator under Section 9711(e)(8). The mitigating factors enumerated by the jury to support the catchall circumstance included “family background and environment,” “use of alcohol and drugs,” and “school history.” The jury thus returned verdicts of death for all three murders. The trial court formally imposed the sentences of death on November 29, 1994, and imposed lesser sentences for the non-murder convictions.Appellant was represented by James Burke, Esquire, at the penalty phase.

Philip Lauer, Esquire, and Mary Ennis, Esquire, (hereafter “appellate counsel”) were appointed to represent appellant for purposes of post-sentence motions and direct appeal. The death sentences related to the murders of victims Burghardt and Schmoyer were vacated on post-sentence motions, and new penalty hearings were granted as to those murders. The trial court determined that the jury had impermissibly considered the murders of Ms. Schmoyer and Ms. Fortney when finding the (d)(11) aggravating circumstance for the murder of Ms. Burghardt and had impermissibly considered the murder of Ms. Fortney in passing upon the penalty for the murder of Ms. Schmoyer. The Commonwealth did not appeal the grant of sentencing relief as to these two murders. Appellant filed a direct appeal from his sentence of death for the murder of Ms. Fortney, and our Court consolidated that appeal as of right with the discretionary, interlocutory appeals appellant lodged respecting the murders of Ms. Burghardt and Ms. Schmoyer, with those appeals limited to the guilt phase. Robinson, 864 A.2d at 478 n. 25.

On direct appeal, the Court reviewed a number of claims of trial counsel ineffectiveness related to both the guilt and penalty phases of trial, thus affording appellant unitary review. The Court explained that the collateral claims fell within the “narrow exception” to the Grant rule (which requires deferral of ineffectiveness claims to PCRA review), which was articulated in Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003), because both guilt phase and penalty phase counsel testified on post-sentence motions.³ Ultimately, the Court affirmed the three first-degree murder convictions and affirmed the judgment of sentence of death related to the murder of Ms. Fortney.⁴

On July 24, 2006, James Moreno, Esquire, of the Philadelphia-based Federal Community Defender Office (“FCDO”) filed an “Ex Parte Motion,” seeking an order permitting the transport of appellant for an MRI and PET scan. On August 3, 2006, appellant filed a pro se petition for PCRA relief. His pro se petition stated that he was being represented by Moreno and Rebecca Blaskey, Esquire, also with the FCDO, for purposes of a federal habeas corpus petition.⁵ A full four years later,on August 2, 2010, the FCDO finally filed a counseled PCRA petition, raising two claims of counsel ineffectiveness related to the penalty phase and a claim that the sentence of death in this case violated the Eighth Amendment. The PCRA court conducted four days of evidentiary hearings during which expert witnesses from both sides testified. Appellant also presented the testimony of his trial counsel, his appellate counsel, Dr. Sadoff, and the brief testimony of John Lesko, another convicted capital murderer who resided on death row in the same prison as appellant for a time. Following the hearing, the PCRA court denied appellant PCRA relief by order dated June 21, 2012. Appellant filed this appeal pursuant to 42 Pa.C.S. § 9546(d).⁶

In the opinion accompanying its order, the PCRA court first addressed appellant's claim that trial counsel were ineffective for failing to adequately investigate and present mitigating evidence at the penalty phase of the trial and his derivative, layered claim that appellate counsel were ineffective for failing to raise the issue of trial counsel's ineffectiveness on appellant's hybrid direct appeal. The primary information that was allegedly not obtained by trial counsel (or obtained but not provided to Dr. Sadoff) related to school records. Appellant's theory of collateral attack was that the school records would have demonstrated that in 1981, when appellant was 6, he tested to a full scale IQ of 126, which was in the superior range, but in 1989, when he was 14 and a resident at Harbor Creek (a juvenile placement facility), he tested to a full scale IQ of 100, which is in the average range. Appellant's PCRA experts opined that the difference in the two test results was significant and would have warranted further neuropsychological testing because it suggested possible frontal lobe brain damage. According to appellant's experts, the theory of possible frontal lobe brain damage was further supported by the PET scan and MRI of appellant's brain secured by the FCDO's ex parte motion.

The PCRA court reasoned that the issue was without merit because appellant did not credibly prove its necessary factual predicate, i.e., that trial counsel failed to obtain and provide appellant's school records to Dr. Sadoff. The PCRA court explained that resolution of the issue ultimately came down to a credibility determination between trial counsel's testimony that he had obtained the school records and provided them to Dr. Sadoff and Dr. Sadoff's testimony that it was his practice to record every document he reviewed in preparing his report. Dr. Sadoff further testified that he was “confident” that he did not receive the records because the school records were not listed in his report. As...