Summary
The Pennsylvania Supreme Court addressed two consolidated capital appeals arising from Michael Bardo’s PCRA proceedings. The Court unanimously affirmed the denial of guilt-phase relief at Docket No. 650 CAP, while an equally divided Court affirmed by operation of law the grant of a new penalty-phase hearing at Docket No. 651 CAP. The opinion concerns claims that trial counsel were ineffective for failing to investigate and present mitigating mental-health, family-history, abuse, and alcohol-related evidence.
Topics
Practice areas
Questions Presented
- Whether the PCRA court erred in granting Bardo a new penalty-phase hearing based on ineffective assistance for failing to investigate and present additional mitigating evidence.
- Whether trial counsel was ineffective for failing to pursue a change of venue based on pretrial publicity.
- Whether counsel was ineffective for failing to object to alleged victim-impact evidence.
- Whether counsel was ineffective for failing to investigate and present a voluntary-intoxication defense.
- Whether the Commonwealth violated Brady by failing to disclose potentially mitigating information in Children and Youth Services records.
- Whether counsel was ineffective in obtaining and using Children and Youth Services records.
- Whether guilt-phase evidence was improperly incorporated into the penalty phase.
- Whether the jury instructions and the Commonwealth's closing arguments improperly limited or misstated the use of mitigating evidence.
- Whether cumulative error warranted post-conviction relief.
Holdings
- A PCRA petitioner must prove by a preponderance of the evidence that counsel's underlying claim has arguable merit, counsel lacked a reasonable strategic basis for the challenged act or omission, and the petitioner suffered prejudice under Strickland and Pennsylvania precedent.
- When evaluating alleged prejudice from counsel's failure to present additional mitigation in a capital case, the reviewing court must compare the mitigation presented at trial with the credited mitigation evidence presented in PCRA proceedings and reweigh the totality of the mitigating evidence against the aggravating circumstances.
- Voluntary intoxication does not establish the statutory mitigating circumstance of substantial impairment unless the evidence shows that the defendant was overwhelmed or overpowered by alcohol to the point of losing his faculties and being incapable of forming a specific intent to kill. Alcohol abuse or dependence is not automatically mitigating under the catch-all provision.
- Pretrial publicity alone does not establish actual prejudice or require a change of venue; the defendant must generally show that publicity prevented the empaneling of an impartial jury, subject to the heightened rule for pervasive and inflammatory publicity.
Key quotations
“The Court is unanimous in the view that the appeal at Docket No. 650 CAP should be affirmed, but is evenly divided on the appeal at Docket No. 651 CAP; therefore, the grant of penalty phase relief, at issue in No. 651 CAP, is affirmed by operation of law.” (at 1)
“To establish Strickland prejudice, the petitioner must show that there is a reasonable probability that the outcome of the proceeding would have been different but for counsel’s action or inaction.” (at 4)
“In sum, based on our thorough review of the documents of record, the penalty phase hearing, and the PCRA hearing, we would reverse the PCRA court’s order insofar as it granted Bardo a new penalty phase hearing.” (at 51)
Factual background
Bardo was arrested in September 1992 after the killing and indecent assault of his three-year-old niece. He told police that he sexually assaulted the child, covered her mouth to quiet her, placed her body in a trash bag, and threw it from a bridge into a creek. The jury convicted him of first-degree murder and aggravated indecent assault and imposed a death sentence after finding two aggravating circumstances. In post-conviction proceedings, Bardo presented additional evidence concerning alcohol use, psychiatric diagnoses, childhood neglect and abuse, and mitigation evidence that trial counsel allegedly failed to present.
Procedural history
Bardo was convicted in 1993 of first-degree murder and aggravated indecent assault and sentenced to death. The Supreme Court of Pennsylvania affirmed the judgment of sentence on direct appeal in 1998. After a PCRA hearing, the PCRA court denied Bardo's guilt-phase and several penalty-phase claims but granted a new penalty-phase hearing based on alleged ineffective assistance in presenting mitigation evidence. Bardo appealed the denial of his claims at No. 650 CAP, and the Commonwealth appealed the grant of penalty-phase relief at No. 651 CAP.
Remand instructions
None stated. The denial of relief at No. 650 CAP was affirmed. The Commonwealth's appeal at No. 651 CAP was evenly divided, so the grant of penalty-phase relief was affirmed by operation of law.