Com. v. Brown, W. ( 2015 )

J-S05017-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
WILLIAM BROWN, :
:
Appellant : No. 817 WDA 2014
Appeal from the PCRA Order Entered April 7, 2014,
In the Court of Common Pleas of Indiana County,
Criminal Division, at No. CP-32-CR-000451-2010.
BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 10, 2015
Appellant, William Brown, appeals from the order entered on April 7,
2014, that denied his petition for relief filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
The PCRA court provided the following factual background:
This matter came before the Court on [Appellant] William
Brown’s Petition for Post-Conviction Collateral Relief pursuant to
the Post-Conviction Collateral Relief Act (PCRA). A hearing on
the Petition was held December 11, 2013. [Appellant’s]
conviction stems from events occurring on February 28, 2010,
when [Appellant] caused the death of his cellmate, Jayson
Stewart, while both were incarcerated in the Restricted Housing
Unit at SCI Pine Grove. Following a three-day jury trial ending on
December 9, 2010, [Appellant] was found guilty of Murder of the
First Degree and Aggravated Assault. He is currently serving a
life sentence without parole at SCI Forest, in Marienville,
Pennsylvania. [Appellant] was represented at trial by court-
appointed counsel, Fred D. Hummel, Jr., and [Appellant] alleges
that he was provided with ineffective assistance of counsel.
J-S05017-15
PCRA Court Opinion, 4/8/14, at 1. The PCRA court denied Appellant’s
petition for relief.
Following the denial of his PCRA petition, Appellant filed this timely
appeal where he raises the following issues for this Court’s consideration:
I. Whether trial counsel was ineffective in his representation
of the Appellant in that he failed to:
(a) fully utilize the volume of the psychiatric and medical
evidence at his disposal to support the Appellant’s defense
of diminished capacity;
(b) fully utilize the evidence of the solitary confinement
and “snitching” that weighed heavily on his mental health?
II. Whether trial counsel was ineffective for failing to utilize
the prior history of mental illness along with the
examination of Dr. Martone to show that the Appellant did
not knowingly or intelligently waive His Miranda[1] rights?
III. Whether trial counsel was ineffective for not ensuring that
the Appellant understood the significance of cooperating
with the Commonwealth’s psychiatrist?
Appellant’s Brief at 4 (full capitalization omitted).
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA
court’s determination is free of legal error. Commonwealth v. Phillips, 31
A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877
A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be
1
Miranda v. Arizona, 384 U.S. 436 (1966).
-2-
J-S05017-15
disturbed unless there is no support for the findings in the certified record.
Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
2001)).
When considering an allegation of ineffective assistance of counsel,
counsel is presumed to have provided effective representation unless the
PCRA petitioner pleads and proves that: (1) the underlying claim is of
arguable merit; (2) counsel had no reasonable basis for his or her conduct;
and (3) Appellant was prejudiced by counsel’s action or omission.
Commonwealth v. Pierce, 527 A.2d 973, 975-976 (Pa. 1987). “In order
to meet the prejudice prong of the ineffectiveness standard, a defendant
must show that there is a ‘reasonable probability that but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.’” Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012).
A claim of ineffective assistance of counsel will fail if the petitioner does not
meet any of the three prongs. Commonwealth v. Williams, 863 A.2d
505, 513 (Pa. 2004). “The burden of proving ineffectiveness rests with
Appellant.” Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007).
Appellant first avers that counsel was ineffective at trial for failing to
utilize psychiatric and medical evidence from his prior involvement with
mental health professionals to support Appellant’s defense of diminished
capacity. We disagree with Appellant’s assertion.
-3-
J-S05017-15
At the outset, we note that Appellant concedes that trial counsel did
not fail to present evidence of Appellant’s past psychiatric issues.
Appellant’s Brief at 12-13. Rather, Appellant asserts that trial counsel
should have provided even more evidence of prior treatment for mental
illness. Id. Appellant goes on to claim that:
A principle of trial practice coming from the erudite and
entertaining Cornell University Law School Professor Irving
Younger provides that if a jury hears a piece of evidence once
they [sic] will probably not remember it, if they [sic] hear that
evidence twice then it may enter into the jury’s discussion, but if
they [sic] hear a third time, then they [sic] will probably accept
and utilize that evidence in reaching their [sic] verdict.
Appellant’s Brief at 13-14. We point out that there is no rule requiring
counsel to present evidence three times. Appellant’s displeasure with the
manner in which trial counsel presented a defense, by itself, does not
amount to ineffectiveness, and the failure to be repetitive satisfies no
ineffective assistance of counsel standard of which this Court is aware. The
fact that Appellant now wishes trial counsel had provided repetitive evidence
and points to other medical records that “could have” been presented,
provides no basis for relief. These bald assertions fail to establish a
reasonable probability that, but for these alleged deficiencies, the result of
the proceeding would have been different. Reed, 42 A.3d at 319.
Moreover, trial counsel did provide evidence of Appellant’s psychiatric
issues and treatment, and the PCRA court concluded that there was a
-4-
J-S05017-15
reasonable basis for counsel to refrain from pursuing the details of
Appellant’s prior treatment any further than he did. Trial counsel’s rationale
was that the past psychiatric treatment was as a result of prior crimes, some
of which were violent. The PCRA court addressed this issue as follows:
[Appellant] argues that counsel failed to interview or call
expert witnesses who previously treated him while he was
confined prior to this matter. Counsel did call one expert
witness, Dr. Martone, who testified on [Appellant’s] behalf that
in her opinion he could not form specific intent due to his mental
disabilities. The Commonwealth’s expert, Dr. Blumberg, offered
testimony contradicting this finding and [Appellant] now claims
that had other experts been called to support Dr. Martone’s
conclusions it would have given them more weight. By failing to
provide additional witnesses to bolster Dr. Martone’s testimony,
[Appellant] alleges counsel was ineffective. He also alleges that
counsel did not obtain his complete medical records, particularly
his Department of Corrections records from 2009-2010. Counsel
testified that Dr. Martone conducted tests with [Appellant] and
discussed his past mental health history, beginning when he was
first recognized as having difficulties at age eleven. [Appellant]
also testified that he was honest with Dr. Martone about his
history, including various confinements at a boot camp, mental
health facilities, and state correctional institutions. Counsel
maintains that medical records were obtained from 2001 to the
date of the trial and because the records were available, it was
not necessary for witnesses from any corresponding treatment
centers to testify. Furthermore based on the fact that the
majority of [Appellant’s] treatment records were connected with
criminal activities, including firing a gun at a police officer,
counsel did not believe it would be advantageous to open certain
records. Counsel’s choice not to introduce potentially damaging
information contained in [Appellant’s] records was a strategic,
tactical decision in presenting his defense. This does not render
counsel ineffective; therefore, this claim is without merit.
PCRA Court Opinion 4/8/14, at 3-4. We agree with the PCRA court. Trial
counsel did present evidence of Appellant’s mental health issues and
-5-
J-S05017-15
presented evidence from an expert Dr. Martone, on these matters. The fact
that counsel did not present evidence that could potentially open the door to
details of Appellant’s criminal past was a strategic decision, and we discern
no error in the PCRA court’s decision on this issue.
In the second part of Appellant’s first issue, Appellant attempts to
raise claims concerning the effect solitary confinement had on him and the
way Appellant was treated by other inmates while incarcerated at SCI Pine
Grove. Appellant now contends that he was taunted and shunned as a
“snitch” because he had informed on an individual in an unrelated case and
that individual ended up being housed at SCI Pine Grove. Appellant’s Brief
at 24.
Appellant argues that trial counsel failed to provide enough evidence
regarding the impact solitary confinement had on him, the way it may have
impacted the intent to kill, and the resulting diminished capacity.
Appellant’s Brief at 24. Appellant goes on to cite to five articles allegedly
espousing the deleterious effects that solitary confinement has on prisoners.
Id. However, Appellant has failed to establish the existence of a witness
who was prepared and willing to testify as to how Appellant was allegedly
mistreated by other inmates, the accuracy and application of the
aforementioned articles, the manner and degree to which Appellant’s mental
state was impacted, or how the absence of this testimony denied Appellant a
-6-
J-S05017-15
fair trial. See Commonwealth v. Walls, 993 A.2d 289, 302 (Pa. Super.
2010) (stating that in order to prevail on a claim of ineffectiveness for failing
to call an expert witness, the petitioner must prove that: (1) the witness
existed; (2) the witness was available to testify for the defense; (3) counsel
knew or should have known of the existence of the witness; (4) the witness
was willing to testify for the defense; and (5) the absence of the witness’s
testimony was so prejudicial as to have denied him a fair trial). Because
Appellant presented no evidence that satisfies these requirements, we
discern no error in the PCRA court denying relief on this claim.
Next, Appellant avers that counsel was ineffective for not presenting
evidence concerning the way Appellant was treated by other inmates while
incarcerated at SCI Pine Grove and the effect that being labeled a snitch had
on him. However, upon review of the record, we note that this specific issue
was not raised in the PCRA court or in his Pa.R.A.P. 1925(b) statement of
errors complained of on appeal. Accordingly, this issue is waived. Pa.R.A.P.
1925(b)(4)(vii).2
2
As set forth above, the issue concerning counsel’s alleged failure to present
evidence that Appellant’s mental state was diminished as a result of a co-
defendant being housed at the same SCI and the fact that Appellant endured
taunts and “grinding” as a result of being labeled a “snitch” is waived as it
was not properly preserved for appeal. We note, however, that on August
21, 2014, this Court received a motion for remand filed by Appellant’s
counsel. In that motion, Appellant sought to have our Court remand this
case to the PCRA court for a hearing on this additional claim of
ineffectiveness because it had not been properly raised on appeal. In an
-7-
J-S05017-15
Appellant next claims that trial counsel was ineffective for failing to
show that, due to his mental illness, Appellant did not knowingly and
intelligently waive his Miranda rights. Appellant claims that his statement
to Pennsylvania State Police Officers was coerced due to his mental illness,
his lack of intelligence, and an allegation that Appellant’s clothing was
withheld by prison officials until he made a statement regarding the murder
of his cellmate. Appellant’s Brief at 26-27.
In deciding whether a defendant has validly waived his Miranda
rights, the trial court must determine: 1) whether the waiver was voluntary,
in the sense that the defendant’s choice was not the result of governmental
pressure; and 2) whether the waiver was knowingly and intelligently made,
in the sense that the decision was reached with full comprehension of both
the nature of the right being waived and the consequences of that choice.
Commonwealth v. Kunkle, 79 A.3d 1173, 1180 (Pa. Super. 2013)
(citation omitted). Additionally, we point out that:
order filed on August 28, 2014, this Court denied Appellant’s motion for
remand without prejudice to Appellant’s ability to again make this motion
before this panel. However, the record reflects that Appellant did not renew
the motion before this panel. Nevertheless, had Appellant renewed the
motion, we would have concluded that no relief was warranted. Because
counsel raised PCRA counsel’s alleged ineffectiveness for the first time on
appeal from the order denying PCRA relief, it is unreviewable at this
juncture. See Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.
2014) (stating that “claims of PCRA counsel’s ineffectiveness may not be
raised for the first time on appeal.”) (citing, inter alios, Commonwealth v.
Jette, 23 A.3d 1032, 1044 n. 14 (Pa. 2011)).
-8-
J-S05017-15
Under Miranda, probative evidence, such as a confession, may
be suppressed to punish and deter police misconduct, and
thereby enforce constitutional protections. Thus, in the
suppression realm, the focus is upon police conduct and whether
a knowing, intelligent, and voluntary waiver was effected based
on a totality of the circumstances, which may include
consideration of a defendant’s mental age and condition, low IQ,
limited education, and general condition. When a defendant
alleges that his waiver or confession was involuntary, the
question is not whether the defendant would have confessed
without interrogation, but whether the interrogation was so
manipulative or coercive that it deprived the defendant of his
ability to make a free and unconstrained decision to confess.
Commonwealth v. Sepulveda, 55 A.3d 1108, 1136-1137 (Pa. 2012)
(internal citations and quotation marks omitted). However, there is no per
se rule that there can be no voluntary waiver when a person is mentally ill.
See Commonwealth v. Mitchell, ___ A.3d ___, 2014 WL 7150724, 677
CAP (Pa. 2014) (stating that defendants with proven psychological defects
are capable of waiving their constitutional rights and giving voluntary
confessions). Finally, a defendant’s prior experience with Miranda warnings
may be considered when determining whether the waiver of those rights was
knowing and voluntary. Commonwealth v. Hughes, 555 A.2d 1264, 1275
(Pa. 1989).
Here, the PCRA court addressed this issue as follows:
By his own testimony at the pre-trial suppression hearing,
[Appellant] indicated that he understood his Miranda rights and
admitted freely speaking to the troopers. He also testified that
he was placed in an infirmary cell, but was given a smock to
wear and that he was unsure if he took his medications. There is
no indication that the interrogating troopers coerced him or that
-9-
J-S05017-15
the environment in which he was held would pressure him into
making a statement. Furthermore, [Appellant] has an extensive
history in the criminal justice system and is familiar with the
nature and meaning of Miranda rights, which he admitted. For
these reasons, [Appellant’s] statements cannot be considered to
be involuntary. Counsel is not obligated to raise arguments that
are not meritorious;[3] therefore there was no ineffectiveness of
counsel for failing to make the arguments that [Appellant] now
advances.
PCRA Court Opinion, 4/8/14, at 7.
We agree with the PCRA court. The record supports the conclusion
that Appellant knowingly and intelligently waived his Miranda rights. Upon
review, we discern no error in the PCRA court’s decision on this issue.
Finally, Appellant claims that trial counsel was ineffective for not
ensuring that he understood the significance of cooperating with the
Commonwealth’s psychiatrist. We conclude that no relief is due.
It is well settled that issues that are not developed or supported with
appropriate argument will be deemed waived. Commonwealth v. Garcia,
661 A.2d 1388, 1395-1396 (Pa. Super. 1995); Pa.R.A.P. 2119(b), (c) and
(d). Because Appellant has failed to support this issue with proper
argument, we deem it to be waived. Id.3
See Commonwealth v. Destephano, 87 A.3d 361, 368 (Pa. Super.
2014) (reiterating the well-settled principle that counsel may not be deemed
ineffective for failing to pursue a meritless claim).
-10-
J-S05017-15
Assuming, for the sake of argument, that we were to address the
merits of this issue, we would affirm based on the rationale enumerated by
the PCRA court. The PCRA court addressed this issue as follows:
[Appellant] next argues that counsel was ineffective for
failing to advise him to cooperate with Dr. Blumberg, the
Commonwealth’s expert in psychiatry. When Dr. Blumberg
interviewed [Appellant], he attempted to have him complete
tests, one of which was the Miller Forensic Assessment
Symptoms Test (MFAST), which is used to determine if someone
is malingering or faking symptoms. [Appellant] only partially
completed the MFAST and then refused to continue with the
remainder because he became frustrated with how lengthy it
was and wanted to be finished. Based on his observations, Dr.
Blumberg found that [Appellant] had borderline intellectual
capabilities, but believed that he was not suffering from
diminished capacity at the time of the murder. According to
[Appellant], counsel did tell him Dr. Blumberg would be talking
to him and administering tests, but did not specifically advise
him that failure to cooperate could be used against him at trial.
Counsel maintains that he did address the importance of the
tests and the need for [Appellant] to do as Dr. Blumberg asked.
Counsel testified that he was not concerned about [Appellant’s]
possible refusal to cooperate because he was cooperative during
his previous evaluation with Dr. Martone. [Appellant] has not
offered any proof to support his claim that counsel did not inform
him of the importance of completing Dr. Blumberg’s tests.
Ineffectiveness of counsel cannot be shown merely by a “bald
allegation” without further proof that counsel failed to inform a
defendant of certain information. Commonwealth v. Alderman,
811 A.2d 592, 596 (Pa.Super. 2002). (No ineffectiveness of
counsel with allegation that defendant was not informed of his
right to testify). Additionally, even if this Court were to accept
[Appellant’s] version of events, he has presented no evidence
indicating a reasonable probability that the proceedings would
have had a different outcome had counsel given more specific
advice regarding the testing.
PCRA Court Opinion, 4/8/14, 5-6.
-11-
J-S05017-15
For the reasons set forth above, we discern no error of law in the PCRA
court’s decision. Accordingly, we affirm the order denying Appellant’s PCRA
petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2015
-12-