CRIMINAL LAW

Death Penalty • Ineffective Assistance of Counsel • Aggravating Circumstances • Mitigation • Guilty Plea

Commonwealth v. Fears, PICS Case No. 14-0326 (Pa. Feb. 19, 2014) Eakin, J. (41 pages).

The PCRA court correctly dismissed Fears’ petition requesting collateral relief from his criminal convictions for first degree murder, corruption of minors, abuse of a corpse and involuntary deviate sexual intercourse and his death sentence. Affirmed.

Fears pled guilty to multiple charges relating to the sexual assault and death of a 12-year old victim. Pursuant to a court-ordered presentence investigation a psychiatrist interviewed Fears and diagnosed him with pedophilia. At the penalty phase the same psychiatrist testified on his behalf that during the incident Fears was overtaken with a sexual urge and acted upon it and then panicked and killed the victim when the victim threatened to report him. The psychiatrist opined that Fears’ sexual impulse and subsequent panic impaired his judgment and his alcohol consumption may have further impacted his judgment and impulse control. The trial court found one aggravating circumstance, that the killing was committed in the perpetration of felony, and the catch–all mitigating circumstance of evidence concerning his character, record and circumstances of the offense. The court held that the aggravator outweighed the mitigation and imposed a death sentence.

Fears, based on his proffer of mental infirmity, argued he suffered from diminished capacity which prevented him from forming the specific intent to kill and he contends that trial counsel was ineffective for failing to investigate and present a diminished capacity defense. Although appellate counsel raised this issue on direct appeal, Fears argued that appellate counsel should have presented expert testimony to support a diminished capacity defense. The PCRA court found that the diminished capacity claims were not previously litigated. Fears could not show that appellate counsel acted unreasonably. Her performance was more than adequate where she questioned trial counsel as to why he did not explore expert evaluation before advising Fears on a plea; and she developed expert testimony as to diminished capacity at the evidentiary hearing on trial counsel’s ineffectiveness. Fears’ claim of counsel’s ineffectiveness was meritless.

In his mitigation claim, Fears alleged his mental problems prevented him from making a knowing, voluntary and intelligent guilty plea and waiver of a jury at the penalty phase. He also alleged appellate counsel was ineffective for failing to further investigate his psychiatric diagnosis. Fears’ claim regarding the guilty plea failed because it was litigated on direct appeal. Trial counsel reasonably relied on a psychiatrists conclusion that Fears was coherent and had no mental disorders other than pedophilia. Thus, trial counsel was not ineffective and therefore appellate counsel cannot be deemed ineffective.

Fears challenged his guilty plea to two counts of IDSI on several grounds. The record supports the PCRA court’s opinion that forcible compulsion was established. Fears IDSI plea fell within the closely-related crime exception. Thus, the corpus delicti rule was not violated. Fears was aware of the facts underlying and the nature of his IDSI offenses. Thus, his claim that he did not understand the nature of the IDSI counts was meritless. Fears killed the victim minutes after the sexual assault and after the victim threatened to report the assault. Thus, the PCRA court properly found evidence supporting the aggravating circumstance. The record supported the PCRA court’s finding that Fears was not prejudiced by the second count of IDSI because the inclusion of the extraneous charge was harmless error where he was never sentenced on the charge and it did not affect his penalty phase. Appellate counsel cannot be ineffective for failing to raise meritless claims.

Fears asserted that appellate counsel was ineffective for failing to investigate and present evidence of Fears’ family and social history on direct appeal. He alleged that additional witnesses would have testified as to the sexual abuse he had suffered, the effect of his multiple foster care placements, and how his family and social factors impacted his decision making, perceptions and judgment. However, the record was clear that appellate counsel developed the claim of trial counsel’s ineffectiveness for failing to explore these mitigating circumstances.

The Eighth Amendment does not prohibit execution of a chronically mentally ill person. Fears did not have a claim under Atkins because he did not allege that he was retarded and he failed to present any analysis as to why the Eighth Amendment prohibits the execution of the chronically mentally ill. This claim was waived for lack of development.

The trial court properly found that Fears’ waiver of a penalty phase jury was knowing, intelligent and voluntary. His allegation that the prosecutor improperly called him “a predator” in the penalty phase closing argument was a non sequitur. There was no jury and there is no evidence that the alleged misconduct influenced the trial court. Although the trial court relied on the pre-sentence report in its sentencing decision, Fears failed to prove that the court relied on any of the improper victim impact evidence in the report. It is presumed that a trial court sitting as a fact-finder will disregard prejudicial evidence. Thus, appellate counsel was not ineffective in her litigation of these meritless claims.

At the time of Fears’ sentencing, Pennsylvania law required a proportionality review for death sentences and he argued he never received such review on direct appeal. The PCRA court’s finding that a proportionality review was held is not supported by the record. However, Fears’ suggested remedy, a new penalty phase, was not viable. Proportionality review was an appellate process, not part of sentencing. Even if he were granted a new penalty phase, he would not be entitled to proportionality review because such review had been abolished. Additionally, he did not cite any similar cases to show his sentence was disproportionate. Even if this claim was developed, Fears failed to prove prejudice.

Fears failed to show that he was entitled to relief based on the cumulative effect of errors and the PCRA court’s order is affirmed. A concurring opinion emphasized the comprehensiveness of appellate counsel’s presentation.

A dissenting opinion focused on trial counsel’s lack of training or experience in capital litigation, his caseload and the lack of investigative resources and stated that the averments of Fears’ PCRA petition and the accompanying proffers raise serious questions as to whether he was denied his constitutional right to an adequate defense.