Commonwealth v. Lopez

¶1concurring.

¶2I join the majority opinion in all relevant respects. I write separately only to distance myself from the conclusion regarding Appellant’s claim that he was improperly precluded from arguing that the jury should consider his co-conspirators’ sentences as a mitigating factor. After correctly analyzing this as a claim that appellate counsel was ineffective for failing to raise an allegation of trial court error, the majority inexplicably concludes that “trial counsel was not ineffective for failing to pursue this issue.... ” Majority opinion — Pa. at ——, 854 A.2d at 471. The reference to trial counsel’s ineffectiveness is inapt since the PCRA petition and the brief before this court raise this as a derivative allegation of trial court error, apparently recognizing, as the majority fails to, that the alleged error that Appellant is complaining about is the trial court’s decision to “preclude” the admission of this evidence.

¶3To the extent that Appellant attempts to also raise this as a claim of trial counsel ineffectiveness in his brief before this court, this claim is waived for failing to include it in the PCRA petition. Moreover, this claim is not properly developed pursuant to the three-prong Pierce1 standard of ineffectiveness. Accordingly, the majority opinion should merely base its conclusion on the fact that Appellant cannot establish trial court error, and thus, any claim of appellate counsel ineffectiveness necessarily fails.

¶4Justice NIGRO joins this concurring opinion.

¶6concurring.

¶7I concur in the result, as I respectfully differ with the majority’s approach to several claims presented in this capital, post-conviction appeal.

¶8For example, I would not treat Appellant’s claim of ineffective assistance of counsel in failing to retain a defense mental-health expert as previously litigated on direct appeal. In my view, the issue is sufficiently distinct from the claim raised on direct appeal, in terms of a failure to develop life-history-type mitigation, to warrant independent review. Cf. Wiggins v. Smith, 539 U.S. 510, 523-24, 123 S.Ct. 2527, 2536, 156 L.Ed.2d 471 (2003) (distinguishing mental health from life history mitigation in terms of the essential scope of capital counsel’s penalty-related investigation). Notably, as well, the PCRA court treated the claim on its merits, and I would affirm its reasoning as such. In particular, in its role as fact-finder, the PCRA court accepted the testimony of the Commonwealth’s expert psychiatrist to the effect that Appellant suffered from no mental health deficits; furthermore, the court highlighted the substantial weaknesses in the case of mental-health mitigation offered by Appellant in the post-conviction proceedings. In this regard, the PCRA court’s findings, and related determination concerning a lack of prejudice, are amply supported by the record.

¶9Additionally, with regard to the testimony of Dr. Isadore Mihalakis to the effect that the victim experienced terror, I would reference the Court’s decision in Commonwealth v. King, 554 Pa. 331, 721 A.2d 763 (1998), in which the Court struck the torture aggravate in a direct appeal based on similar testimony by Dr. Mihalakis. See id. at 366-68, 721 A.2d at 781-82. I would also expressly note that the difference in outcome here must thus lie in the governing standard of review, namely, the burden on a PCRA petitioner, and/or one challenging counsel’s stewardship, to establish prejudice, versus the more exacting burden imposed on the Commonwealth of establishing harmlessness upon the finding of preserved trial error on direct appeal. See generally Commonwealth v. Howard, 538 Pa. 86, 99-100, 645 A.2d 1300, 1307-08*559(1994) (elaborating on this distinction and its consequences on appellate and/or post-conviction review).