Commonwealth v. Brown4/29/2005
its in terms of his cognitive abilities and functioning; and life-history declarations from various witnesses attesting to Appellant's abandonment and abuse during his childhood.
The United States Supreme Court has made very clear that capital counsel have a duty to conduct a thorough investigation of the defendant's background in preparation for the penalty phase of trial. See Wiggins v. Smith, 539 U.S. 510, ___, 123 S.Ct. 2527, 2535 (2003); Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 1514-15 (2000). To the extent that a mitigation investigation is truncated, the reviewing court must determine whether the decision to curtail the inquiry was supported by reasonable professional judgment. See Wiggins, 529 U.S. at ___, 123 S.Ct. at 2536.
The majority appears to accept that counsel in this case may not have conducted the sort of thorough mitigation investigation that is contemplated under prevailing norms, but despite the disturbing implications of the declarations presented, it rejects the proposition that a factual inquiry is implicated. With respect to the mental health dynamic, the majority posits that "the record at the time of trial did not reveal evidence of mental illness or abuse that would have prompted trial counsel to conduct a further investigation in this regard." Majority Opinion, slip op. at 13. To the extent that this would be true, however, it is not dispositive, since counsel's duty to investigate was not confined to matters developed as of record. In fact, claims of ineffective assistance of counsel are most often extra-record claims; indeed, this was a primary premise of the Court's recent decision to defer them to post-conviction review so they could be properly developed on a full and complete evidentiary record. See Commonwealth v. Grant, 572 Pa. 48, 64, 66. 813 A.2d 726, 736-37 (2002).
Moreover, the majority's proposition is not accurate. In fact, as the majority itself notes (albeit in passing), in a 1991 pre-sentence report which was presumably available to counsel, Appellant was diagnosed as suffering from a personality disorder. See Majority Opinion, slip op. at 13. In addition to the other indicia of potential mental infirmity referenced in counsels' declarations (if believed), this should have triggered further inquiry on counsel's part. Accord Basemore, 560 Pa. at 292, 294-96, 744 A.2d at 735, 737-38 (finding penalty-phase counsel's awareness of unusual behavior and a mixed personality disorder on the part of his capital client important to the determination of whether further mitigation-based, mental-health investigation was warranted, and correspondingly, whether counsel's stewardship was deficient, and remanding for fact finding in this regard). Most other courts recognize that capital sentencing jurors may place substantial weight on mental health mitigation; indeed, a thorough mental-health investigation is a pillar of the American Bar Association's guidelines for the Appointment and Performance of Counsel in Death Penalty Cases.
The majority also faults Appellant for not having apprised counsel of any mental health condition. See, e.g., Majority Opinion, slip op. at 14. Again, however, the focus of ineffectiveness inquiry does not rest upon the capital defendant, but rather, on the reasonableness of the pre-trial investigation conducted by counsel. See Wiggins v. Smith, 539 U.S. 510, ___, 123 S.Ct. 2527, 2536 (2003); Commonwealth v. Malloy, ___ Pa. ___, 856 A.2d 767, 788 (2004) ("The onus is not upon a criminal defendant to identify what types of evidence may be relevant and require development and pursuit. Counsel's duty is to discovery such evidence through his own efforts, including pointed questioning of his client."); Com
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