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    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.


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    David S. Nenner

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