Com. v. Andrews, T , 158 A.3d 1260 ( 2017 )

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2017 Pa. Super. 91
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TERRENCE PATRICK ANDREWS
Appellant No. 914 WDA 2016
Appeal from the PCRA Order Dated June 2, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0010169-2008
BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J.
OPINION BY SOLANO, J.: FILED APRIL 07, 2017
Appellant Terrence Patrick Andrews appeals from the order denying his
petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546. For the reasons that follow, we vacate the PCRA
court’s order and remand for further proceedings.
On the evening of May 29, 2008, Appellant repeatedly stabbed his
neighbor, Lisa Maas, causing her death. Appellant gave police the following
account of the killing, as summarized from our decision addressing
Appellant’s direct appeal from his conviction, Commonwealth v. Andrews,
No. 1113 WDA 2011, at 1-3 (Pa. Super. Feb. 15, 2013) (unpublished
memorandum): On the morning of the killing, Maas told Appellant “that he
smelled or stunk.” Appellant already thought Maas “looked down on him,”
and her comment “burned [him] up all day.” Appellant decided to kill her. He
waited for her to return to her apartment, forced his way into the apartment,
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and began stabbing her with his scissors. When Maas grabbed a knife to
defend herself, Appellant took it from her and used it to stab her. Maas fell
to the floor and began to choke on her blood. Appellant put a washcloth in
her mouth and secured the washcloth with tape so that he would not hear
Maas choking. When the gurgling sounds stopped and Appellant was sure
that Maas was dead, he left her apartment.
In the hallway, Appellant encountered two police officers who were
responding to a neighbor’s call regarding screams. Appellant, who was
covered in blood, told the officers, “I did it, take me to jail.” He also asked if
Pennsylvania had the death penalty. The officers found a pair of scissors and
a kitchen knife in Appellant’s pants pocket. Appellant was briefly interviewed
at the crime scene, and gave the account summarized above. See
Andrews, No. 1113 WDA 2011, at 2-3.
Appellant was charged with criminal homicide and burglary.1 He was
tried by a jury from March 22-25, 2011. At trial, Appellant offered a
diminished capacity defense, presenting expert testimony from Dr. Barbara
Ziv that he lacked the ability to form the specific intent to kill. 2 Appellant’s
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1
18 Pa.C.S. §§ 2501 and 3502, respectively.
2
“In asserting a diminished capacity defense, a defendant is attempting to
prove that he was incapable of forming the specific intent to kill; if the
defendant is successful, first degree murder is mitigated to third degree.”
Commonwealth v. Travaglia, 661 A.2d 352, 359 n.10 (Pa. 1995)
(emphasis in original), cert. denied, 516 U.S. 1121 (1996).
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counsel attempted to ask Dr. Ziv whether Appellant’s mental illness
interfered with his “ability to conform his behavior to the law.” Appellant’s
counsel explained that the testimony was relevant to the issue whether
Appellant was guilty but mentally ill. The Commonwealth objected, arguing
that the jury could not return a verdict of guilty but mentally ill because
Appellant had not offered an insanity defense. The trial court sustained the
objection. N.T., Trial, at 418-19. Defense counsel later requested a jury
instruction regarding the verdict of guilty but mentally ill, which was denied
for the same reason. Id. at 556-57. At the conclusion of the trial, the jury
found Appellant guilty of first-degree murder and burglary. After the verdict
was announced, Appellant’s counsel moved to have the verdict molded to
guilty but mentally ill; that motion was denied. Id. at 667-68.
The trial court proceeded immediately to sentencing, imposing a
sentence of life imprisonment for first-degree murder and a consecutive
term of five to ten years’ incarceration for burglary. This Court affirmed the
judgment of sentence on February 15, 2013, 3 and the Supreme Court of
Pennsylvania denied Appellant’s petition for allowance of an appeal on
October 29, 2013. 78 A.3d 1089 (Pa. 2013).
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3
On direct appeal, Appellant claimed that (1) the trial court erred in
admitting photographs of the deceased; and (2) the trial court abused its
discretion in finding that the verdict was not contrary to the weight of the
evidence because the Commonwealth’s psychiatric expert was unreliable.
Andrews, No. 1113 WDA 2011, at 3-4.
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On January 8, 2014, Appellant filed his timely pro se PCRA petition.
Counsel was appointed and, after being given several extensions, filed an
amended PCRA petition on December 29, 2015. The amended petition
contained one claim: “Trial counsel gave ineffective assistance when she
failed to advise Petitioner to plead guilty but mentally ill to the charge of
homicide.” Amended Pet. at 3. Appellant contended that had he entered a
plea of guilty but mentally ill (rather than unsuccessfully pleading not guilty
and going to trial on a diminished capacity defense), he would have been
entitled to psychiatric treatment while serving his life sentence after
conviction. Id. at 4.
On May 6, 2016, after reviewing the Amended Petition, the
Commonwealth’s Answer, and the record, the PCRA court issued a notice of
its intent to dismiss Appellant’s PCRA petition pursuant to Rule 907 of the
Pennsylvania Rules of Criminal Procedure. The PCRA court stated:
Petitioner alleges that trial counsel was ineffective for
failing to advise Petitioner to plead guilty but mentally ill to the
charge of homicide. However, Petitioner was not entitled to
plead guilty but mentally ill because he did not raise an insanity
defense. Importantly, Petitioner did not raise an insanity defense
because he did not meet the legal definition of insanity. As such,
the underlying claim is without merit, and the Court finds that
there is no merit to Petitioner’s ineffective assistance of counsel
claim. See Commonwealth v. Spotz, 47 A.3d 63, 108 n.34
(Pa. 2012) (claims deemed meritless where assertions therein
are not explained, developed, or supported by the record
factually or legally).
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Rule 907 Notice, 5/6/16. On May 10, 2016, Appellant filed a response to the
Rule 907 notice, 4 and on June 2, 2016, the PCRA court issued an order
denying Appellant’s PCRA petition.
On June 27, 2016, Appellant filed a timely notice of appeal. On July
14, 2016, the PCRA court issued an order stating: “The Court set forth in its
Notice of Intent to Dismiss, dated May 6, 2016, the Court’s reasons for
denying Appellant’s Post Conviction Relief Act Petition. This satisfies the
requirement of Pa. R. App. 1925 that the Court set forth its reasons for
issuing the Order Appealed from.” 5 Appellant raises the following issue, as
stated in his brief:
Whether trial counsel gave ineffective assistance when she failed
to advise Appellant to plead guilty but mentally ill to the charge
of homicide?
Appellant’s Brief at 4.
Preliminarily, we recognize that in reviewing the propriety of an order
granting or denying PCRA relief, this Court is limited to ascertaining whether
the evidence supports the determination of the PCRA court and whether the
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4
The filing was entitled “Response to Notice of Intention to Dismiss; and, in
the Alternative, Motion for Leave to File Amended PCRA Petition Pursuant to
Rule 905(A) of the Pennsylvania Rules of Criminal Procedure.” Appellant did
not explain how he would amend the petition if leave were granted.
5
The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b)
statement of matters complained of on appeal, and Appellant did not file
one.
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ruling is free of legal error. Commonwealth v. Payne, 794 A.2d 902, 905
(Pa. Super.), appeal denied, 808 A.2d 571 (Pa. 2002).
Counsel is presumed to have been effective. To overcome this
presumption, a PCRA petitioner must plead and prove that: “(1) the
underlying legal claim is of arguable merit; (2) counsel’s action or inaction
lacked any objectively reasonable basis designed to effectuate his client’s
interest; and (3) prejudice, to the effect that there was a reasonable
probability of a different outcome if not for counsel’s error.”
Commonwealth v. Natividad, 938 A.2d 310, 321 (Pa. 2007).
Here, the PCRA court dismissed Appellant’s petition without a hearing
because it concluded that Appellant’s underlying legal claim lacked arguable
merit. The PCRA court reasoned that Appellant was not entitled to plead
guilty but mentally ill because he did not present an insanity defense at trial.
Although the PCRA court did not cite any authority in support of this
reasoning, the Commonwealth makes the same argument in its brief, relying
on a Crimes Code provision, 18 Pa.C.S. § 314, that provides, in relevant
part:
§ 314. Guilty but mentally ill
(a) General rule.—A person who timely offers a defense of
insanity in accordance with the Rules of Criminal Procedure may
be found “guilty but mentally ill” at trial if the trier of facts finds,
beyond a reasonable doubt, that the person is guilty of an
offense, was mentally ill at the time of the commission of the
offense and was not legally insane at the time of the commission
of the offense.
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(b) Plea of guilty but mentally ill.—A person who waives his
right to trial may plead guilty but mentally ill. No plea of guilty
but mentally ill may be accepted by the trial judge until he has
examined all reports prepared pursuant to the Rules of Criminal
Procedure, has held a hearing on the sole issue of the
defendant’s mental illness at which either party may present
evidence and is satisfied that the defendant was mentally ill at
the time of the offense to which the plea is entered. If the trial
judge refuses to accept a plea of guilty but mentally ill, the
defendant shall be permitted to withdraw his plea. A defendant
whose plea is not accepted by the court shall be entitled to a
jury trial, except that if a defendant subsequently waives his
right to a jury trial, the judge who presided at the hearing on
mental illness shall not preside at the trial.
(c) Definitions.—For the purposes of this section and 42
Pa.C.S. § 9727 (relating to disposition of persons found guilty
but mentally ill):
(1) “Mentally ill.” One who as a result of mental disease or
defect, lacks substantial capacity either to appreciate the
wrongfulness of his conduct or to conform his conduct to the
requirements of the law.
(2) “Legal insanity.” At the time of the commission of the act,
the defendant was laboring under such a defect of reason,
from disease of the mind, as not to know the nature and
quality of the act he was doing or, if he did know it, that he
did not know he was doing what was wrong.
18 Pa.C.S. § 314.
The Commonwealth misconstrues this statute. Section 314 draws a
distinction between a defendant who pleads not guilty and a defendant who
pleads guilty. Under Section 314(a), a defendant who pleads not guilty may
be found by a fact-finder to be guilty but mentally ill only if the defendant
“offers a defense of insanity.” 18 Pa.C.S. § 314(a); see Commonwealth v.
Hatfield, 579 A.2d 945, 947 (Pa. Super. 1990). The reason for this rule is
that, under Pennsylvania law, mental illness is not a defense to criminal
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liability unless the mental illness rises to the level of legal insanity under
Section 314(c)(2). This limitation is set forth in Section 315(a) of the Crimes
Code:
The mental soundness of an actor engaged in conduct charged
to constitute an offense shall only be a defense to the charged
offense when the actor proves by a preponderance of evidence
that the actor was legally insane at the time of the commission
of the offense.
18 Pa. C.S. § 315(a); see Hatfield, 579 A.2d at 947 (holding that evidence
of mental illness is irrelevant to guilt where a defendant does not invoke an
insanity defense).6
Thus, under Section 314(a), if a defendant wishes to plead not guilty
on the basis of his mental illness, he must claim to have been legally insane
when he committed the crime. If the fact-finder then agrees that the
defendant was insane, it will find the defendant not guilty on the basis of
that defense.7 But if the fact-finder concludes that the defendant committed
the crime while he was mentally ill but not insane, it may not acquit him on
the basis of the mental illness; instead, it may find the defendant “guilty but
mentally ill.” Such a verdict then triggers provisions of the Sentencing Code
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6
Section 315 contains a definition of legal insanity identical to that in
Section 314(c)(2). See 18 Pa. C.S. § 315(b).
7
The Mental Health Procedures Act contains procedures for involuntary
commitment of individuals found not guilty by reason of insanity. See Act
§§ 304, 305, 404, 406, 50 P.S. §§ 7304, 7305, 7404, 7406.
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that enable the defendant to receive mental health treatment while
undergoing his criminal punishment. See 42 Pa. C.S. § 9727.8
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8
The Legislature added this “guilty but mentally ill” innovation to
Pennsylvania law in 1982, following the acquittal due to mental illness of
John W. Hinckley, Jr. for the attempted assassination of President Reagan.
See Commonwealth v. Trill, 543 A.2d 1106, 1119 (Pa. Super. 1988),
appeal denied, 562 A.2d 826 (Pa. 1989). To decrease the number of
acquittals based on an insanity defense, the 1982 legislation provided juries
with a “guilty but mentally ill” verdict as an alternative to finding the
defendant not guilty by reason of insanity. Id. For persons found guilty but
mentally ill, Section 9727 of the Sentencing Code provides, in part:
Disposition of persons found guilty but mentally ill.
(a) Imposition of sentence.—A defendant found guilty but
mentally ill or whose plea of guilty but mentally ill is accepted
under the provisions of 18 Pa.C.S. § 314 (relating to guilty but
mentally ill) may have any sentence imposed on him which may
lawfully be imposed on any defendant convicted of the same
offense. Before imposing sentence, the court shall hear
testimony and make a finding on the issue of whether the
defendant at the time of sentencing is severely mentally disabled
and in need of treatment pursuant to the provisions of the act of
July 9, 1976 (P.L.817, No.143), known as the “Mental Health
Procedures Act.”
(b) Treatment.—
(1) An offender who is severely mentally disabled and in need of
treatment at the time of sentencing shall, consistent with
available resources, be provided such treatment as is
psychiatrically or psychologically indicated for his mental illness.
Treatment may be provided by the Bureau of Correction, by the
county or by the Department of Public Welfare in accordance
with the “Mental Health Procedures Act.”
(2) The cost for treatment of offenders found guilty but mentally
ill, committed to the custody of the Bureau of Correction and
transferred to a mental health facility, shall be borne by the
Commonwealth.
42 Pa. C.S. § 9727(a), (b).
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But in claiming that he should have been advised to plead guilty but
mentally ill, Appellant does not rely on Section 314(a). Instead, he relies on
Section 314(b), which, by its precise terms, specifically authorizes a
defendant to “waive[] his right to trial” and “plead guilty but mentally ill.”
Contrary to the Commonwealth’s argument, Section 314(b) does not
condition the ability to plead guilty but mentally ill on the assertion of an
insanity defense. Indeed, any such condition would make no sense. An
insanity defense requires a plea of not guilty. Here, Appellant argues that
he should have been advised to plead guilty but mentally ill. “A plea of
guilty constitutes a waiver of all nonjurisdictional defects and defenses” and
“waives the right to challenge anything but the legality of [the] sentence and
the validity of [the] plea.” Commonwealth v. Jones, 929 A.2d 205, 212
(Pa. 2007) (citation omitted). Thus, if a defendant pleads guilty but mentally
ill and the court accepts that plea, the defendant waives the defense of
insanity. There thus would be no reason for a defendant to invoke the
defense of insanity before entering a plea of guilty but mentally ill.
We have found no case law discussing the interplay between Sections
314(a) and 314(b) with respect the requirement to assert an insanity
defense, but we are confident that the statute authorizes a plea of guilty but
mentally ill by a person who does not claim to be insane. We implied as
much in Commonwealth v. Andre, 17 A.3d 951 (Pa. Super. 2011), where
we said that, “unless a person pleads guilty but mentally ill, the guilty
but mentally ill verdict only arises in the context of a legal insanity defense.”
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17 A.3d at 961 (emphasis added; explaining interplay among mens rea,
insanity, and guilty but mentally ill). The Commonwealth cites no case law
to the contrary.
We previously addressed a claim that trial counsel was ineffective for
not pursuing a guilty but mentally ill plea in Commonwealth v. Townsend,
747 A.2d 376 (Pa. Super.), appeal denied, 759 A.2d 385 (Pa. 2000). The
trial court rejected Townsend’s claim of ineffective assistance, and this Court
affirmed. In doing so, we noted that Townsend’s counsel testified, at the
post-sentence hearing, 9 that (1) she did not believe there was enough
medical evidence to support a guilty but mentally ill finding; and (2) she
discussed the option of pleading guilty but mentally ill with Townsend more
than once. 747 A.2d at 383. Further, Townsend had rejected a guilty plea
offer “because he wanted to tell his story,” and there was no reason to
believe that a guilty but mentally ill plea would have been more acceptable
to him. Id. Notably, this Court did not say that Townsend could plead guilty
but mentally ill only if he offered an insanity defense. Townsend therefore
does not support the Commonwealth’s case here.
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9
The issue in Townsend was raised on direct appeal. “Until the decision in
Commonwealth v. Grant[, 813 A.2d 726 (Pa. 2002)], all claims of
ineffective assistance of counsel had to be raised at the earliest appropriate
stage in the proceedings at which the attorney whose effectiveness was
being challenged no longer represented the defendant.” 16 West’s Pa.
Practice, Criminal Practice § 4:22 (footnotes omitted); see generally 29
Standard Pa. Practice 2d § 138.51 (discussing when claims of ineffective
assistance of counsel should be raised).
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We hold that a defendant need not assert an insanity defense before
entering a plea of guilty but mentally ill. Accordingly, the PCRA court erred
by dismissing Appellant’s claim on the ground that he did not assert such a
defense. We therefore will vacate the PCRA court’s decision and remand for
further consideration of Appellant’s claim of ineffective assistance. On
remand, Appellant will have to establish all three elements of an ineffective
assistance claim. Because he contends that he should have been advised to
plead guilty but mentally ill, these requirements will include proof that he
would have been able to satisfy the trial court “that [he] was mentally ill at
the time of the offense to which the plea is entered,” as required by Section
314(b), and that the Commonwealth would have agreed to a guilty but
mentally ill plea and the court would have accepted a guilty plea on those
terms. See Pa.R.Crim.P. 590.
Order vacated. Case remanded for further proceedings consistent with
this opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2017
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