Commonwealth v. Robinson, H., Aplt (concurring)
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[J-50-2013][M.O. Castille, C.J.] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT COMMONWEALTH OF PENNSYLVANIA, Appellee v. HARVEY MIGUEL ROBINSON, Appellant : : : : : : : : : : : No. 662 CAP Appeal from the Order entered on 6/21/12 in the Court of Common Pleas, Criminal Division of Lehigh County at No. CP-39-CR-0000058-1994 SUBMITTED: May 30, 2013 CONCURRING OPINION MR. JUSTICE SAYLOR DECIDED: December 27, 2013 I join Parts I and V of the majority opinion and concur in the result relative to the balance. With respect to Parts II and III, concerning Appellant s claim that his penalty counsel performed a deficient mitigation investigation and was ineffective in the presentation of the evidence which he did uncover, I support the majority s decision to credit the post-conviction court s finding that Appellant failed to establish sufficient prejudice. I have difficulty, however, to the extent the majority attempts to rationalize penalty counsel s handling of the mitigation case, including the presentation of lifehistory witnesses and the opinion testimony from Dr. Sadoff. See, e.g., Majority Opinion, slip op. at 33-35. As to the life-history aspect, the majority recognizes that the defense presentation was paltry. See id. at 35. For my part, moreover, I fail to see that Dr. Sadoff s testimony added much affirmatively helpful testimony to the mix, id. at 33, or that the psychiatrist s testimony somehow converted a paltry case of life-history mitigation into a full human picture of Appellant, id. at 34. In point of fact, as I read the eight pages of transcript covering Dr. Sadoff s direct examination by penalty counsel, beyond reinforcing the Commonwealth s position that Appellant is a sociopath, the psychiatrist did little more than confirm the unremarkable propositions that substance abuse can affect conduct and that anti-social behavior can be learned. See N.T., Nov. 9, 1994, at 2575-83. In other words, with or without Dr. Sadoff, the mitigation presentation was paltry, and, in such circumstances, I question the reasonableness of presenting this sort of expert testimony and thus requiring an explanation for the defense s own position that the defendant is a sociopath. See, e.g., Cummings v. Sec'y for Dep't of Corr., 588 F.3d 1331, 1368 (11th Cir. 2009) (observing that a diagnosis of antisocial personality disorder ... is not mitigating but damaging ). On my review of this record, I see the absence of available strategic choices at the penalty stage as having more to do with the appointment, a month before trial, of a relatively new attorney with no experience in homicide cases as capital penalty counsel, See N.T., Dec. 17, 2010, at 21-22, 25, than with some inherent centrality to the defense mitigation case of the limited psychiatric testimony which counsel adduced. Regarding Part IV, I support the majority s holding that the post-conviction process is not generally a forum for the innovation of new legal principles. Nevertheless, I am circumspect as to whether this approach should be absolute, particularly since we are now deferring to the post-conviction forum claims which traditionally were considered on direct appeal. See Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002). [J-50-2013][M.O. Castille, C.J.] - 2
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