Commonwealth v. Michael

¶1dissenting.

¶2On June 17,1999, Appellant submitted a letter to this Court expressing a desire to abandon the present appeal. Accordingly, I would remand to the PCRA court for a determination as to whether Appellant’s apparent waiver is knowing, voluntary and intelligent.

¶3Although I would not reach the merits of Appellant’s claims at this juncture, I note my disagreement with the majority’s approach to the disposition of the issue concerning trial counsel’s alleged ineffectiveness in failing to present mitigating *376circumstances in the penalty phase of trial. Prior to the penalty phase, Appellant expressed a desire to stipulate to the existence of several aggravating factors and the absence of any mitigating factors, functionally agreeing to a death sentence. See 42 Pa.C.S. § 9711(c)(1)(iv)(providing 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 circumstances”). Apprehending the gravity of such stipulation, the trial court conducted an on-the-record colloquy, in which Appellant essentially confirmed his understanding of the penalty that would result from his stipulation; indicated that he had been advised concerning the nature of the penalty phase proceeding and the role of aggravating and mitigating circumstances; and maintained that he was nonetheless committed to proceeding on the stipulation. Nevertheless, the trial court, quite appropriately, instructed trial counsel to fully prepare for the penalty phase proceeding as follows:

Now, you understand that even though you have given those instructions, my instructions to [trial counsel] are going to be to do everything that he can possibly think of to prepare a defense, including further discussions with you. I’m going to direct that he remain in daily contact with you to make sure you haven’t changed your mind. I’m going to have him contact your family and your friends and any other witnesses that may possibly be available and to have them subpoenaed and to have them available.

¶4The trial court also secured Appellant’s consent to such preparation. Further, at the penalty phase proceeding, upon the actual proffer of the stipulation, the trial court conducted a second colloquy, in which Appellant stated that his decision was voluntary, again acknowledged his understanding concerning the effect of the stipulation, and indicated that he believed that trial counsel was prepared to actually conduct the defense.

¶5The difficulty, however, is that there is no contemporaneous, on-the-record description of trial counsel’s actual preparation. Pertaining to the penalty phase of a capital case, I believe *377that, even where a client fails to cooperate and opposes the proffer of a defense, counsel retains the obligation to conduct a reasonable investigation. See Johnston v. Singletary, 162 F.3d 630, 643 (11th Cir.1998); Matthews v. Evatt, 105 F.3d 907, 920 (4 th Cir.1997); Blanco v. Singletary, 943 F.2d 1477, 1503 (11th Cir.1991). Notwithstanding the client’s expressed wishes, lacking proper preparation by trial counsel and an on-the-record articulation of that preparation, there is simply no basis in the trial record from which to assess whether the defendant’s decisions were properly informed. See generally Allen v. State, 662 So.2d 323, 328-29 (Fla.1995).1 Holding counsel to such a standard eliminates the risk that a capital defendant, whose advocate cannot frame a colorable defense around concrete facts generated from a reasonable investigation, might decide for that reason alone that there is no hope of avoiding the least favorable outcome.

¶6In the present case, even if trial counsel was not so obligated by our capital jurisprudence, the record discloses that the trial court specifically instructed him to undertake full preparation. Yet, not only is there no contemporaneous record concerning what counsel actually did, upon his examination at the PCRA hearing, trial counsel characterized his preparation as “cursory.” Although he was able to identify several witnesses (a close friend and “maybe some of the family members”), trial counsel described the evidence as “very minor” and relied heavily upon Appellant’s expressed wishes to excuse his failure to fully prepare:

Q: [Did your investigation tap] in to other areas of mitigation regarding the family dynamics or any of the abuse issues we had talked about?

*378A: Well, certainly it did, and certainly I was aware of that. You have to understand I did a cursory preparation based on the judge’s request to do so. [Appellant] was instructing me all along from this point not to. In fact, he did so at the sentencing proceeding.

THE COURT: [D]id you or did you not make a complete preparation to present mitigating circumstances? You referred to cursory. You referred to quick investigation. Did the Court not instruct you to do a complete defense for mitigation? Did you understand that was what you were to do?

A: Yes, Your Honor.

THE COURT: Did you do it?

A: I don’t know, Your Honor. Your Honor, I’ll tell you what I did do. I talked to these witnesses. I talked to Mr. Michael about who he wanted, what he wanted to present. That’s what I did, you know.

¶7Relative to the development of potential mental health mitigation evidence, trial counsel also indicated as follows:

Maybe that’s what [the trial court] wanted me to do, but you have to understand Mr. Michael did not want mitigation. But certainly all those that you’ve raised could have been mitigating factors in a death penalty proceeding.

¶8Counsel proceeded as indicated despite the fact that the trial court'had secured Appellant’s on-the-record consent to full preparation, and counsel never reported to the trial court that such consent was subsequently withdrawn. It is also significant that post-conviction counsel was able to create a substantial record of mitigating evidence at the PCRA hearing.

¶9On this record, I cannot agree with the majority that the Rule of Professional Conduct pertaining to the general scope of an attorney’s representation would apply to obviate review of trial counsel’s actual performance as it relates to Appellant’s decision to accept the death penalty.