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Commonwealth v. Brown4/29/2005
ence that would have supported Appellant's theory of self-defense (Argument III). Specifically, Appellant argues that trial counsel should have presented psychiatric evidence establishing that he suffered from mental and cognitive impairments, including bipolar disorder and organic brain damage, as well as evidence that he was threatened and abused by his father. He argues that such evidence should have been presented to support a theory of voluntary manslaughter, either by demonstrating an imperfect self-defense claim or a provocation and passion theory. He relies on trial counsel's declaration, wherein counsel states that had he known of Appellant's alleged mental and cognitive impairments, he would have presented them to the jury. Declaration of Daniel Greene at 11, Appendix of Exhibits to Initial Brief of Appellant, Exhibit 6.
We find that there is no arguable merit to the issue of trial counsel's ineffectiveness because 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 that regard. In fact, the record established the contrary. In his sworn statement to the police, Appellant was specifically asked whether he had ever been treated for mental health problems. (N.T. 7/18/91, 748). Appellant responded "no." Id. Moreover, a pre-sentence investigation report prepared by a psychologist who evaluated Appellant on December 10, 1991, indicated that Appellant reported no history of neurological, suicidal, or psychiatric problems. Exhibit B to the Commonwealth's Motion of December 14, 1999, filed in Philadelphia County Common Pleas Court. The report further indicated that Appellant did not suffer from any major mental illness, but rather was diagnosed with "personality disorder N.O.S. [not otherwise specified], with some dissocial and anti-social features." Id. The primary alleged basis for counsel to have suspected that Appellant was mentally ill at the time of trial is Appellant's "obsession with space travel." The record demonstrates, however, that trial counsel did not view such interest as irrational, but rather offered such evidence in mitigation by presenting the fact that he shared his interest in NASA and the space program with his niece and other children in the neighborhood, taking them to conventions, and educating them on the subject. (N.T. 7/17/91, 585; 7/24/91, 1035, 1044).
Additionally, the record indicated that Appellant had not been abused by his father. In his testimony at trial when he was describing the events leading to the shooting, Appellant explained that his father had thrown a garbage can at his car moments prior to the homicide. (N.T. 7/19/91, 842). When asked whether his father had ever done that before, Appellant stated, "me and my dad never had any violence of any kind." Id. He went on to state, "My dad had never hit me, not once." Id.
Even assuming such abuse and mental illness did exist, Appellant never informed trial counsel of the same, and there was no objective evidence of record that would have prompted counsel to look further into the issues. See Commonwealth v. Bracey, 795 A.2d at 944 (trial counsel not ineffective for failing to present evidence of alleged abuse where neither the defendant nor his family informed counsel of the abuse). In fact, in the same statement to police referenced above, Appellant made a flippant comment that he was sorry for what occurred and that he was "pleading insanity and self-defense." (N.T. 7/18/91, 747). Presumably recognizing the lack of record evidence establishing such defense, trial counsel filed a pre-trial motion in limine seeking to preclude from evidence any reference Appellant made regarding insanity. See
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