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Commonwealth v. Ogrod12/30/2003
of the second confession and the fact that Appellant decided not to testify at the second trial, defense counsel and Appellant agreed that they should not call the witnesses. Id. at 32-33. The testimony on this issue follows:
A . . . the presentation at the first trial was that he was really, really tired before -- when he went down to the Police Administration, based upon the fact that he had worked like a 12- or 16-hour shift -
Q. I see.
A. -- the night before.
Q. So that all of these witnesses dealt with his activity with reference to the inference that he was too tired to make a truthful and voluntary statement?
A. That's correct.
Q. Okay. Now, you called them in the first trial?
A. Yes.
Q. And not in the second trial?
A. Well, their testimony went hand in glove with Walter then following them and testifying in front of the jury at the first trial. I think the stage was set by having these witnesses testify about Walter and what kind of worker he was and then describing that he was working, I think, until 5:00 a.m. or 6:00 a.m. that morning, that he then went down to the police station in response to a note that the detectives had left on his door. And so it just segued into him going in and testifying at the first trial, I went down there, I was exhausted, they kept me down there, I didn't know what I was saying. But the dynamic changed at the second trial where Walter was not going to testify, number one; and, number two, the theory was playing one statement off against the other.
Id. at 32-33. The record, therefore, demonstrates that defense counsel made a reasoned decision not to call the witnesses at the second trial: (1) because he planned to play one confession off another; and (2) because Appellant decided not to testify at the second trial. The decision of defense counsel not to call witnesses to testify to Appellant being sleep deprived or weak-willed was a strategic one that does not provide a basis on which to grant a new trial.
Penalty Phase Hearing Claims of Error
The penalty phase took place on October 9, 1996. At the hearing, the Commonwealth incorporated the record from the guilt phase of the trial in support of the alleged aggravating circumstance that the killing of Barbara Jean occurred during the felony of attempted involuntary deviate sexual intercourse. N.T. 10/9/96 at 8; see 42 Pa.C.S. § 9711(d)(6).
As mitigating circumstances, Appellant argued that: (1) he had no significant history of prior criminal convictions; (2) he was under the influence of extreme mental or emotional disturbance at the time of the killing; and, (3) that there was other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense (the catchall mitigator). Pursuant to the catchall mitigator, Appellant asserted that: he was emotionally disturbed at the time of the killing; he suffered from childhood abuse that affected his emotional and psychological development; and he attempted to better himself through his life by seeing a psychiatrist, enlisting in the Army Reserves and learning to drive a truck. N.T. 10/9/96 at 5-6; see 42 Pa.C.S. § 9711(e)(1), (4), (8).
At the penalty hearing, Dr. Peter David Ganime, M.D. (Dr. Ganime), a psychiatrist, Father John Bonavitacola (Father Bonavitacola), the prison Chaplain, and Appellant testified in support of the mitigating circumstances. Dr. Ganime testified that he first met Appellant when Appellant was eleven-years-old, at which time his mother sought to have him committed to the hospital that employed Dr. Ganime. N.T. 10/9/96 at 12. N
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