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Commonwealth v. Brown4/29/2005
concessions of unpreparedness are untrue, because counsel offered testimony from eight mitigation witnesses at the penalty phase of trial. See Majority Opinion, slip op. at 17 n.9. An examination of the actual penalty-phase mitigation testimony, however, covering a relatively brief 30 pages of transcript, supports rather than contradicts counsels' declarations. The first witness called was a detective who had testified in the Commonwealth's case-in-chief (and thus was immediately available to counsel), and the testimony proceeded as follows:
Q: Good morning again, Detective .
A: Good morning.
Q: I stopped you very briefly out in the hall a few moments ago, did I not?
A: Yes.
Q: I asked you a question, did I not?
A: Yes.
Q: Repeating that question, since that incident back in 1967 where Mr. Brown pled guilty to voluntary manslaughter and conspiracy, according to your records, has he been arrested or convicted of any crimes since that date?
A: Since the date of 1967, our records in the city of Philadelphia show that he has not been arrested in the city.
[Counsel]: Thank you very much.
N.T., Jul. 24, 1990.
The next witness was Appellant's girlfriend, Harriet Carter, and her testimony opened as follows:
Q: I telephoned you last evening, did I not?
A: Yes.
Q: I told you over the telephone what the verdict was in this case?
A: Yes.
Q: I asked you to do something for me last night, did I not?
A: Yes.
Q: What did I ask you to do?
A: You asked me to write down everything good about John Brown.
N.T., July 24, 1991, at 1032-33 (emphasis added). The bulk of the remainder of the Ms. Carter's direct testimony (covering five pages of the transcript) consists of her reading the statement that she had prepared the previous evening. See id. at 1034-36. The remaining witnesses appear to have been persons Ms. Carter was able to summon to the courtroom, including her children Robert (whose testimony covers approximately 4 pages of transcript), Angela (2 pages), and April (2 pages); Ms. Carter's brother (3 pages); Ms. Carter's sister (1 page); and a friend of Ms. Carter's (2 pages). Counsel's post-conviction attestation that he was shocked by the guilt-phase verdict is also confirmed in the penalty-phase record, as he related this to the jury in his closing argument. See N.T., July 24, 1991, at 1075 ("and of course you saw the look of shock and surprise on my face when you announced your verdict").
Thus, the record does not support the characterization of the attorneys' post-conviction declarations as misrepresentations, but rather, strongly corroborates the declarations. Counsel's presentation of the case for life imprisonment over death contains none of the deeper, explanatory-type evidence that would require an actual investigation and which Appellant now seeks to demonstrate was available to counsel, had he performed reasonably. Rather, it is precisely of the sort that could have been fashioned immediately before the penalty phase, as counsel have attested was the case and as the record supports.
It remains my position that, in circumstances (such as here) in which affidavits, declarations, or similar evidentiary proffers are presented to a PCRA court which, if believed, would bring the reliability of the death verdict into legitimate question, a post-conviction hearing and associated fact-finding are required. See Pa.R.Crim.P. 909(2) (authorizing dismissal of a PCRA petition only where there are no material facts in issue,
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