Commonwealth v. Bardo

Summary

This is a concurring opinion by Justice Todd of the Supreme Court of Pennsylvania in consolidated capital post-conviction appeals involving Michael Bardo. The opinion addresses ineffective assistance claims concerning a requested change of venue and pretrial publicity, and supports affirmance of the PCRA court’s grant of penalty-phase relief while agreeing that guilt-phase relief should be denied.

Holdings

1. Under the unique circumstances presented, Bardo failed to establish that the pretrial publicity so pervaded the community as to warrant a presumption of prejudice; therefore, his change-of-venue ineffectiveness claim lacked arguable merit.
2. In the PCRA context, the prejudice inquiry is whether there is a reasonable probability that counsel's failure to obtain an out-of-county venue change affected the result, including by precluding an acquittal or a different penalty; juror assurances of impartiality, unexhausted peremptory strikes, and jury instructions do not necessarily resolve whether inherently prejudicial publicity caused prejudice.
3. The PCRA court's grant of penalty-phase relief was properly affirmed because its determination regarding the comparative persuasiveness of trial and PCRA counsel's mitigation advocacy was free of legal error and supported by the record.

Questions Presented

1. Whether trial counsel was ineffective for failing to obtain a change of venue because of allegedly prejudicial pretrial publicity.
2. Whether the PCRA court properly rejected the change-of-venue ineffectiveness claim for lack of arguable merit.
3. Whether the PCRA court properly granted penalty-phase relief based on counsel's mitigation advocacy and the possibility that the mitigation evidence could have persuaded at least one juror not to impose the death penalty.

Disposition

affirmed