Commonwealth v. Anderson, D., Aplt.

• Court: Supreme Court of Pennsylvania
• Decided: September 26, 2024
• Docket: 801 CAP
• Status: Published

Opinion

[J-15-2024] [MO: Todd, C.J.] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 801 CAP : Appellee : Appeal from the Judgement of : Sentence entered on May 31, 2022, : in the Court of Common Pleas of v. : Cumberland County, Criminal : Division, at No. CP-21-CR-0001964- : 2020. DAVONE UNIQUE ANDERSON, : : ARGUED: March 6, 2024 Appellant :

CONCURRING OPINION

JUSTICE McCAFFERY DECIDED: September 26, 2024

“The death penalty not only takes away the life of the person strapped to the table — it takes away a little bit of the humanity in each of us.” —Clint Smith1

If we, as a society, wish to impose death on one of our fellow citizens and thereby

diminish ourselves in the process, we had better be sure to do so only after ensuring an

examination of conscience, a complete and vigorous defense, and a full discussion of the

issues involved.

Although I agree with the Court’s result, I write separately to express my deep

discomfort with affirming a death sentence given the very poor quality of Anderson’s

representation. This level of representation should highlight the need for greater

1 Clint Smith, There is No Justice in Killing Dylann Roof, THE NEW YORKER (June 4, 2016),

https://www.newyorker.com/news/news-desk/there-is-no-justice-in-killing-dylann-roof. resources, education, and training for capital defense litigation in this Commonwealth —

a need often identified, yet never addressed.

In this case, defense counsel’s only engagement with Anderson’s capital sentence

concerns the irrelevant fact that the verdict slip initially listed one of the victims’ names —

Sydney — as an aggravating factor. The name was then crossed out and replaced with

“B1(3)[,]” which corresponds to one of the aggravating factors for a capital sentence

provided in 42 Pa.C.S. § 9711(d)(10). See id. (listing as an aggravated circumstance the

defendant’s conviction “of another murder committed in any jurisdiction and committed

either before or at the time of the offense at issue.”). As the Majority aptly demonstrates,

this argument is weak and unavailing. Clearly, the jury was referring to the murder of one

of the victims, Sydney Parmelee, as the aggravating factor. The fact that they initially

wrote the victim’s name does not show they reached a verdict based on impermissible

considerations, such as sympathy for that victim.

Counsel’s presentation of mitigating evidence before this Court is similarly meager,

with little (if any) time devoted to mitigation at argument. Moreover, in the submitted brief,

counsel fails to describe the mitigating evidence presented at trial with any level of detail.

To compound these deficiencies, defense counsel raises no other objections to

the death penalty. He does not mention, let alone raise an as applied or facial challenge

to, the constitutionality of the death penalty in Pennsylvania.

Nor is this the only issue defense counsel fails to put forth. Indeed, I am disturbed

by counsel’s failure to challenge what appears to be a quite glaring matter: Anderson’s

“voluntary” excited utterance confession to the corrections officer after he was put on

suicide watch for attempting to kill himself while in custody. In my mind, there is

[J-15-2024] [MO: Todd, C.J.] - 2 certainly a question as to whether such a statement, given by a person experiencing a

mental health crisis, can be voluntary, especially where, as here, Anderson gave this

statement after being in custody for nearly 12 hours without access to the counsel he

requested upon his arrest. Inexplicably, counsel made no attempt to argue this issue, or,

it seems, to evaluate the defendant’s competency.

Unfortunately, this dismal advocacy illustrates long-standing issues with capital

representation in Pennsylvania and the great harm ineffective lawyering poses to capital

defendants. Former Chief Justice Saylor highlighted this very problem on numerous

occasions. See, e.g., Commonwealth v. Johnson, 985 A.2d 915, 928 (Pa. 2009) (Saylor,

J., concurring) (articulating “continuing concern” with the performance of counsel in

capital cases); Commonwealth v. King, 57 A.3d 607, 636 (Pa. 2012) (Saylor, J.,

concurring) (noting “we have seen more than enough instances of deficient stewardship

to raise very serious questions concerning the presumption[]” of effective capital defense

representation); Commonwealth v. Cousar, 154 A.3d 287, 314 (Pa. 2017) (Saylor, C.J.,

concurring and dissenting) (describing “a pattern of deficient representation that we have

seen in capital litigation in Pennsylvania”) (citation omitted).2

I strongly echo former Chief Justice Saylor’s concerns. As such, I seriously

question the death penalty’s constitutionality and efficacy, given the truly dire state of

capital representation in this Commonwealth. Where the difference between a death

sentence and life sentence (or acquittal) largely depends upon the caliber of lawyer a

defendant happens to obtain, and where that difference is so vast, our capital system

2 See also Saylor, Thomas G., Death-Penalty Stewardship and the Current State of Pennsylvania Capital Jurisprudence, 23 WIDENER L.J. 1, 22-35 (2013) (describing numerous examples of ineffective capital counsel in Pennsylvania).

[J-15-2024] [MO: Todd, C.J.] - 3 cannot be anything but arbitrary. I save for another day the many other reasons for which

I believe the death penalty has no place in our Commonwealth.

[J-15-2024] [MO: Todd, C.J.] - 4