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Commonwealth v. Brown4/29/2005
Trial court opinion at 8 and exhibit. Accordingly, trial counsel cannot be deemed ineffective for failing to present mental health evidence to support Appellant's theory of self-defense when there was no such evidence of record. As there is no arguable merit to the issue of trial counsel ineffectiveness, the claim of appellate counsel ineffectiveness fails.
We must next determine whether appellate counsel was ineffective as a result of trial counsel's failure to investigate and prepare for the penalty phase (Argument IV). As in the prior issue, Appellant alleges that trial counsel failed to present significant mitigating evidence of Appellant's major mental illness, traumatic childhood, and organic brain damage. Although Appellant has produced a declaration of trial counsel wherein he admits that he did not conduct an investigation into Appellant's mental illness, traumatic childhood, and organic brain damage, counsel states that he was unaware of Appellant's deficiencies in this regard. As noted, the information available to trial counsel at the time of trial did not alert counsel to further investigate such issues. See Commonwealth v. Bracey, supra; Commonwealth v. Uderra, 706 A.2d 334, 339-340 (Pa. 1998) (holding that trial counsel was not ineffective for declining to present mitigation evidence regarding appellant's psychological problems and drug use when appellant failed to disclose any information about those problems prior to trial). In addition, the nature of the crime -- Appellant shooting his father following a heated argument -- did not on its face suggest that the perpetrator was mentally ill. As discussed in detail supra at 13-14, the record at the time of trial indicated that Appellant did not suffer from any mental infirmity and had not been abused by his father.
Rather than portray Appellant as mentally disabled, trial counsel portrayed Appellant as a caring friend and neighbor, a proposition consistent with the self-defense theory presented during the guilt phase. The PCRA court succinctly recognized,
All of the witnesses who testified for [Appellant] at the penalty phase portrayed Appellant as a hero (pulled witness from wreckage of auto accident); a counselor of wayward youth; a father-figure; a community leader; and a lover and protector or young children in the neighborhood. Trial court opinion at 9.
Even assuming that Appellant's claim is of arguable merit and that counsel failed to have a reasonable basis for failing to further investigate mental health and abuse issues in the penalty phase of trial, Appellant has failed to demonstrate that he was prejudiced by counsel's substandard performance. Such a showing has always been a prerequisite to a claim alleging the ineffective assistance of counsel. See Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987); Strickland v. Washington, 104 S.Ct. 2052 (1984). In order to demonstrate prejudice in this context, Appellant must show that there is a reasonable probability that, absent counsel's failure to present the mitigation evidence he currently proffers, he would have been able to prove at least one mitigating circumstance by a preponderance of the evidence and that at least one jury member would have concluded that the mitigating circumstance(s) outweighed the aggravating circumstance(s). See 42 Pa.C.S. § 9711(c). Here, the jury found the mitigating circumstances that Appellant acted under extreme mental or emotional disturbance and the catchall mitigating circumstance of other evidence of mitigation. These mitigating circumstances relate to the evidence Appellant currently proffers. Moreover, we cannot conclude that there is a reasonable probability that the jury would have afforded any more weight to the m
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