FREE CONSULTATIONS

Email or Call (215) 564-0644

    Failure to Present Mitigation Evidence Issues in Pennsylvania PCRA Petitions & Appeals

    Trial counsel’s failure to present mitigation evidence at sentencing in criminal cases often becomes the subject of appeals and Post-Conviction Relief Act petitions in Pennsylvania. Mitigation evidence is often presented during the sentencing phase of a criminal case in order to get a lesser sentence. Mitigation evidence often includes evidence of the defendant’s background, education, family history, mental health, etc.

    The reality is that any decent criminal defense lawyer will have a strategy for presenting mitigation evidence. For example, a criminal lawyer may choose to present specific evidence to show or characterize the defendant in a specific way. If the basis for presenting or not presenting evidence is reasonable, a subsequent appeal or PCRA petition raising the issue will be unsuccessful. For example, in Commonwealth v. Williams (PA Supreme Court, 2004), trial counsel’s failure to investigate and present psychiatric mitigating evidence was not ineffectiveness where the strategy was to portray the defendant as a good son and athlete, even though the strategy was not successful.

    In some situations, a criminal defendant declines to present evidence of mitigation, even after being warned by the judge that failure to present mitigation evidence may result in the death penalty, or a criminal defendant may specifically instruct his attorney not to present mitigation evidence.

    There have been multiple Pennsylvania court cases where a criminal defendant specifically instructs his attorney not to present mitigation evidence at sentencing. Then, in a later PCRA petition, the defendant tries to argue that trial counsel was ineffective for failing to present mitigation evidence. Courts generally deny PCRA relief in these cases.

    In fact, Pennsylvania courts have consistently recognized that a criminal defendant has a right to decide whether to present mitigating evidence. Defense attorneys have no duty to introduce/argue mitigation where the client specifically instructs otherwise. See e.g., Commonwealth v. Taylor (PA Supreme Court, 1998).

    More: PCRA Petitions – Filing Subsequent Petitions – By a Phila. Criminal Defense Lawyer

    Raising the Issue of Mitigation Evidence in a PA PCRA Petition

    The key is being able to show what mitigation evidence would have been presented. In essence, the PCRA court must be presented with the following:

    • the nature of the mitigation evidence,
    • that such evidence existed at the time of the sentencing hearing,
    • the evidence was able to be presented (i.e., witnesses were available),
    • trial counsel knew of the existence of the evidence, and
    • the failure to present the evidence caused prejudice.

    The last element is critical. The defendant in a PCRA petition or appeal must show that he was prejudiced by trial counsel’s failure to present mitigation evidence, i.e., the outcome would have been different. If the defendant is unable to show that the outcome would have been different, the claim fails, even if all the other elements are proven.

    PCRA & APPEALS IN PENNSYLVANIA – GET A FREE CASE REVIEW (215) 564-0644

    Disclaimer: This website does not create any attorney-client relationship or provide legal advice. Our lawyers provide legal advice only after accepting a case. It is imperative that any action taken is done on advice of counsel. Read full disclaimer below.

    David S. Nenner

    "Top Rated Criminal Defense Lawyer"
    (2015-2022)

    MURDER, Att. Murder CHARGES – Negotiated Significantly Lower prison sentence (Feb. 2022, PHILA)

    Mr. Anderson faced murder and attempted murder charges after an incident in Northeast Philadelphia involving the shooting death of Anderson’s sister’s boyfriend and the boyfriend’s roommate who was shot 5 times and survived. The decedent had previously beaten the...

    Att. MURDER CHARGES – NOT GUILTY JURY VERDICT (April 2022, PHILA)

    The Commonwealth alleged that Mr. Shelton shot and seriously injured a male in a bar in North Philadelphia called Circles. There was video of the shooting which happened outside the bar. However, Mr. Nenner presented witnesses who testified that the person in the bar...

    MURDER, Robbery CHARGES – NOT GUILTY JURY VERDICT (MAY 2021, PHILA)

    Mr. Nenner's client was charged with multiple crimes (murder, conspiracy, aggravated assault, robbery, etc.) after a shooting death occurred at a gambling house in North Philadelphia. At trial, Mr. Nenner successfully presented a self-defense argument and convinced...

    MURDER CHARGE – NOT GUILTY JURY VERDICT (MAY 2021, PHILA)

    Mr. Nenner’s client was charged with murder and gun charges in Philadelphia. The client was accused of shooting and killing another male on Arch Street near the 5600 block of Ithan Street in Philadelphia. The jury returned a verdict of not guilty after deliberating...

    Drug Possession Case – Motion to Suppress Granted

    Mr. Nenner presented evidence that to show that the traffic stop was a pretextual stop. The officer had no reason to pull the car over. The judge agreed and suppressed the evidence. As a result, the prosecution withdrew the charges.

    Sentencing for 1st Degree Murder in PA

    In this article below we discuss sentencing for 1st degree murder cases in Pennsylvania. In later articles, we will discuss sentencing for 2nd and 3rd degree murder cases. If you or a loved one is facing murder charges in Philadelphia or the surrounding counties,...

    Philadelphia Criminal Trials – Evidence Pointing to Another Perpetrator in Drug Possession or Drug Manufacture Cases

    In criminal trials in Philadelphia, one pretty common defense tactic is pointing the finger at another person at trial. This can raise enough doubt to result in a not guilty verdict by the judge or jury that the defendant was not the perpetrator of the crime. Here’s...

    Philadelphia Murder & Gun Possession Cases Increasing in 2021 – A Look at Common Charges & Defenses

    A look at PA criminal law for Murder (1st, 2nd, 3rd Degree), Aggravated Assault, Robbery, Possession of a Firearm, Carrying a Firearm Without a License, Carrying a Firearm in Philadelphia (misdemeanor).

    Pennsylvania Murder Charges, Deceased Person’s Statements Used to Prove Guilt

    Defense Trial Strategies – Excluding Statements That Accuse the Defendant Prosecutors often look to a deceased individual’s statements made prior to a murder to show that the defendant is guilty. These statements may point to a history of violence between the deceased...

    Pennsylvania (State) Drug Charges, Dog Sniffs & Constitutional Law

    Federal and Pennsylvania state courts treat narcotics dog searches differently. So different that the same scenario could result in different outcomes in federal versus state court. For example, a Philadelphia resident is pulled over for speeding. During the traffic...