Com. v. Simminger, S. ( 2023 )

J-A26014-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN E. SIMMINGER :
:
Appellant : No. 2451 EDA 2021
Appeal from the PCRA Order Entered November 15, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003208-2016
BEFORE: BOWES, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED JANUARY 13, 2023
Steven E. Simminger appeals from the order dismissing his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.
The underlying facts of this case were previously summarized as follows:
In the early morning hours of March 13, 2016, Sean Boyd, Colin
McGovern, Casey Walsh and Gabby DiFrancesco were walking
around Rittenhouse Square in center city Philadelphia, looking for
a place to crash for the night. Appellant was roaming the same
streets. When Appellant and the four’s paths crossed, Boyd made
a snide remark about the Jersey Devils’ hat Appellant was
wearing. An argument ensued. An unarmed Boyd and McGovern
approached Appellant. Appellant took a knife out of his right coat
pocket. As McGovern got closer, Appellant lunged, stabbing
McGovern in the stomach. Appellant then lunged and slashed at
Boyd but missed. McGovern then grabbed Appellant and both
landed on the ground, wrestling, with McGovern ending up on top.
Again, Appellant stabbed the unarmed McGovern, this time in the
heart. Boyd pulled McGovern away and the two got several steps
away before McGovern collapsed from his wounds and soon died.
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* Retired Senior Judge assigned to the Superior Court.
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Appellant fled, returning to get his hat and another object before
again fleeing. Appellant went home to New Jersey, returning to
Philadelphia the next morning to the Veteran’s Administration
Hospital for treatment of a cut to his hand. The police were
eventually called, Appellant arrested, and found among his
possessions were two knives. His clothes were soaked with Colin
McGovern’s blood, as was one of the two knives. Appellant’s cell
phone displayed texts in which Appellant revealed that “he likes
stabbing,” stating that stabbing “Is a rush,” “Is satisfying” and “Is
what mother-fuckers deserve when they bother me.”
Commonwealth v. Simminger, 221 A.3d 300 (Pa.Super. 2019) (non-
precedential decision at 1-2) (cleaned up). One hour before the incident,
Appellant texted his sister several messages, including “Somebody downtown
is about to get taken, baby,” “Fuck that. They were looking at me funny,”
“I’m on a mission,” and “I need money.” N.T. (Trial), 11/15/17, at 55-57.
Based on the foregoing, the Commonwealth charged Appellant with
murder and possessing an instrument of crime (“PIC”). Following denial of
Appellant’s motions to quash and suppress, Appellant proceeded to a six-day
jury trial. The Commonwealth presented, inter alia, video surveillance of the
stabbing and the above-referenced text messages.
Appellant’s defense centered on his mental health. In that regard,
counsel presented the testimony of two experts: (1) Frank Dattilio, Ph.D., a
clinical and forensic psychologist, and (2) Cyril Wecht, M.D., a forensic medical
examiner. Counsel ultimately argued to the jury in closing argument that it
should find that Appellant had been acting pursuant to imperfect self-defense
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when he stabbed McGovern and, therefore, should be found guilty of voluntary
manslaughter.1
The jury convicted Appellant of first-degree murder and PIC. Appellant
was sentenced to life without the possibility of parole, plus two and one-half
to five years of incarceration. Appellant filed a notice of appeal to this Court,
challenging the sufficiency and weight of the evidence, the denial of his motion
to suppress, and the admission of evidence relating to a prior arrest. This
Court affirmed Appellant’s judgment of sentence. See id. Appellant filed a
petition for allowance of appeal to our Supreme Court, which the High Court
denied. See Commonwealth v. Simminger, 223 A.3d 671 (Pa. 2020).
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1 We have explained the interplay between self-defense and improper self-
defense thusly:
Self-defense is a complete defense to a homicide charge if 1) the
defendant reasonably believed that he was in imminent danger of
death or serious bodily injury and that it was necessary to use
deadly force to prevent such harm; 2) the defendant did not
provoke the threat that resulted in the slaying; and 3) the
defendant did not violate a duty to retreat. Where the defendant
has introduced evidence of self-defense, the burden is on the
Commonwealth to disprove the self-defense claim beyond a
reasonable doubt by proving that at least one of those three
elements is absent. If the Commonwealth proves that the
defendant’s belief that deadly force was necessary was
unreasonable but does not disprove that the defendant genuinely
believed that he was in imminent danger that required deadly
force and does not disprove either of the other elements of self-
defense, the defendant may be found guilty only of voluntary
manslaughter under the defense of imperfect self-defense.
Commonwealth v. Jones, 271 A.3d 452, 458 (Pa.Super. 2021).
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On January 14, 2021, Appellant timely filed the instant PCRA petition,
his first, with the assistance of counsel. Therein, he raised several claims of
ineffective assistance of trial counsel. Thereafter, Appellant filed a
supplemental petition.2 The Commonwealth filed a motion to dismiss and
Appellant filed an answer in response. The PCRA court issued notice of its
intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907.
Appellant filed a response. On November 15, 2021, the PCRA court dismissed
Appellant’s PCRA petition.
This timely appeal followed. Both Appellant and the PCRA court have
complied with Pa.R.A.P. 1925. Appellant presents the following issues for our
consideration:
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2 Appellant initially raised, inter alia, a claim that counsel was ineffective for
failing to object to the admission of the text messages on the grounds of
authenticity and hearsay. See PCRA Petition, 1/14/21, at ¶ 18; Memorandum
of Law in Support of Petition for Post-Conviction Relief, 1/14/21, at 51-57. In
his supplement, Appellant added a claim that counsel should have objected to
the Commonwealth’s statements about when the text messages occurred,
which Appellant believed misled the jury. See Supplement to Petition for Post-
Conviction Relief, 6/30/21, at 1-2 (unnumbered). Appellant filed the
supplement without leave of court. Generally, unauthorized supplements are
discouraged and any claims raised therein are waived. See Commonwealth
v. Brown, 141 A.3d 491, 504 n.12 (Pa.Super. 2016) (citations omitted).
However, where the PCRA court does not strike the supplement and addresses
it in ruling on the PCRA petition, the PCRA court will be deemed to have
implicitly permitted the filing of the supplement. Id. at 504 (citations
omitted). Instantly, the PCRA court did not explicitly permit supplementation
and did not discuss the merits of the supplemental claim in its Rule 907 notice,
dismissal order, or Rule 1925(a) opinion. Nonetheless, the court
acknowledged receipt of the supplement and heard argument on the
supplemental claim. See N.T. (PCRA), 10/6/21, at 5-14. Thus, we will deem
the supplement as having been implicitly permitted by the PCRA court.
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(1) Did the PCRA court err in dismissing Appellant’s PCRA
petition without an evidentiary hearing where Appellant
proffered evidence to establish that trial counsel was
ineffective for failing to present testimony from a forensic
psychiatrist to establish that [Appellant] did not have the
specific intent required for first degree murder, and
therefore, failing to present a viable mental health defense
including that of insanity?[3]
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3 Appellant raised for the first time within this brief the specific claim that
counsel was ineffective for failing to retain a psychiatric expert to establish an
insanity defense. Thus, the Commonwealth asks this Court to find this portion
of Appellant’s first issue waived for failure to raise it before the PCRA court.
See Commonwealth’s brief at 11-12. Appellant, on the other hand, argues
that he “is simply making a new argument to support the preserved issue of
whether counsel was ineffective for not obtaining a psychiatrist’s assistance
to present a viable mental health defense.” Appellant’s reply brief at 3.
It is well-settled that “[i]ssues not raised in the lower court are waived and
cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). “This
requirement bars an appellant from raising a new and different theory of relief
for the first time on appeal.” Commonwealth v. Phillips, 141 A.3d 512, 522
(Pa.Super. 2016) (cleaned up). There are several distinct defenses related to
mental health, which include imperfect self-defense, diminished capacity by
way of voluntary intoxication, and insanity. See supra n.1 (defining imperfect
self-defense, which will mitigate first-degree murder to voluntary
manslaughter); Commonwealth v. Padilla, 80 A.3d 1238, 1263 (Pa. 2013)
(“A defense of diminished capacity negates the element of specific intent, and
thus mitigates first-degree murder to third-degree murder. . . . [T]o prove
diminished capacity due to voluntary intoxication, a defendant must show that
he was overwhelmed to the point of losing his faculties and sensibilities.”
(cleaned up)); Commonwealth v. Andre, 17 A.3d 951, 962 (Pa.Super.
2011) (explaining that if “the Commonwealth [is] unable to prove criminal
intent because the defendant has met his burden regarding the cognitive
incapacity aspect of the insanity defense, then the defendant must be
adjudicated not guilty by reason of insanity”).
In Appellant’s PCRA petition, his claim assailing counsel’s expert witness
strategy was devoid of any mention of an insanity defense. Instead, he
mentioned self-defense, imperfect self-defense, and intoxication. More
generally, he argued that “based on the opinion of a psychiatrist, [Appellant’s]
actions demonstrate his unreasonable belief that he was in danger caused by
(Footnote Continued Next Page)
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(2) Did the PCRA court err in dismissing Appellant’s PCRA
petition without an evidentiary hearing where Appellant
proffered evidence to establish that trial counsel was
ineffective for failing to properly investigate and present fact
witnesses regarding [Appellant’s] historical mental health
issues with family and friends?
(3) Did the PCRA court err in dismissing Appellant’s PCRA
petition without an evidentiary hearing where Appellant
proffered evidence to establish that trial counsel was
ineffective at the time of closing argument when she
conceded [Appellant’s] competency and that he did not have
psychosis?
(4) Did the PCRA court err in dismissing Appellant’s PCRA
petition without an evidentiary hearing where Appellant
proffered evidence to establish that trial counsel was
ineffective for failing to object to specific jury instructions
that were clearly not supported by the evidence as there
was no testimony from a psychological position for an
insanity defense?
(5) Did the PCRA court err in dismissing Appellant’s PCRA
petition without an evidentiary hearing where Appellant
proffered evidence to establish that trial counsel was
ineffective for coercing [Appellant] to waive the defense of
voluntary intoxication, and thus, waiving the corresponding
____________________________________________
his mental health conditions and that he did not have the specific intent
required for first-degree murder.” Memorandum of Law in Support of Petition
for Post-Conviction Relief, 1/14/21, at 20. Additionally, he contended that his
“judgment was impaired and ‘diminished his ability to have the specific intent
to commit murder.’” Id. at 21. Thus, the mental health defenses Appellant
referenced and intimated at were imperfect self-defense and diminished
capacity by way of voluntary intoxication, and those were the defenses the
PCRA court addressed in considering this issue in its Rule 1925(a) opinion.
See PCRA Court Opinion, 2/3/22, at 11-12. In fact, the PCRA court’s Rule
1925(a) opinion addressing this issue is devoid of any discussion as to
counsel’s conduct in relation to an insanity defense. Accordingly, insofar as
Appellant argues that counsel was ineffective for failing to retain an expert to
establish an insanity defense, that theory of relief is waived for failure to raise
it before the PCRA court. See Pa.R.A.P. 302(a).
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jury instruction, which could result in a verdict less than
first-degree murder?
(6) Did the PCRA court err in dismissing Appellant’s PCRA
petition without an evidentiary hearing where Appellant
proffered evidence to establish that trial counsel was
ineffective for abandoning Appellant’s defense of self-
defense, which a defense expert witness had presented, by
conceding in her closing argument that he was guilty of
voluntary manslaughter?
(7) Did the PCRA court err in dismissing Appellant’s PCRA
petition without an evidentiary hearing where Appellant
proffered evidence to establish that trial counsel was
ineffective for failing to object to the admission of hearsay
evidence in the form of text messages located on his alleged
cell phone at trial and when the Commonwealth misstated
the facts in its closing argument concerning the timing of
the text messages, as the Commonwealth did not properly
authenticate the messages?
Appellant’s brief at 7-8 (cleaned up).
On appeal from a PCRA court’s decision, our scope of review is “limited
to examining whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal error. We view
the findings of the PCRA court and the evidence of record in a light most
favorable to the prevailing party.” Commonwealth v. Johnson, 236 A.3d
63, 68 (Pa.Super. 2020) (en banc) (cleaned up). The PCRA court’s credibility
determinations are binding on this Court when supported by the certified
record, but we review its legal conclusions de novo. Id. When a PCRA court
dismisses a PCRA petition without first holding an evidentiary hearing, this
Court examines “whether the PCRA court erred in concluding that there were
no genuine issues of material fact and in denying relief without an evidentiary
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hearing.” Commonwealth v. Hart, 199 A.3d 475, 481 (Pa.Super. 2018).
Evidentiary hearings are required only when factual issues are in dispute. Id.All of Appellant’s claims challenge the effective assistance of trial
counsel. We observe that counsel is presumed to be effective and the
petitioner bears the burden of proving otherwise. See Johnson, supra at 68
(citation omitted). To do so, the petitioner must establish the following three
elements:
(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel’s action or failure to act; and (3) the
petitioner suffered prejudice as a result of counsel’s error, with
prejudice measured by whether there is a reasonable probability
that the result of the proceeding would have been different.
Id. (citations omitted). Failure to prove any of the three elements will result
in dismissal of the ineffectiveness claim. Id. (citation omitted).
The first prong involves a legal determination of whether the claim has
arguable merit. See Commonwealth v. King, 259 A.3d 511, 520 (Pa.Super.
2021). As to the second prong, this Court does “not employ a hindsight
analysis in comparing trial counsel’s actions with other efforts he may have
taken.” Id. (cleaned up). “The test for deciding whether counsel had a
reasonable basis for his action or inaction is whether no competent counsel
would have chosen that action or inaction, or, the alternative, not chosen,
offered a significantly greater potential chance of success.” Id. (cleaned up).
Finally, a petitioner establishes prejudice “if there is a reasonable probability
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that, but for counsel’s errors, the result of the proceeding would have been
different.” Id. at 521 (cleaned up).
Appellant’s first two claims allege that counsel was ineffective for failing
to call a witness. When a petitioner asserts that counsel was ineffective for
failing to call a witness, he must establish, for purposes of the second and
third prongs of the general ineffectiveness test, that: “(1) the witness existed;
(2) the witness was available to testify for the defense; (3) counsel knew of,
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 testimony of
the witness was so prejudicial as to have denied the defendant a fair trial.”
Commonwealth v. Selenski, 228 A.3d 8, 16 (Pa.Super. 2020) (cleaned up).
Upon review, the certified record supports the PCRA court’s findings and
we discern no error in the decision to dismiss these two claims. Thus, we
affirm the PCRA court’s dismissal of Appellant’s first two claims on the basis
of the thorough opinion of the PCRA court. Specifically, the PCRA court
provided sound reasoning for concluding that the psychiatric testimony
Appellant claims counsel should have utilized did not offer a greater chance
for success. See PCRA Court Opinion, 2/3/22, at 6-12 (indicating that the
new expert’s opinions were largely based on “sheer speculation,” and “a
proposed alternate trial strategy based on conjecture cannot substantiate a
claim for ineffective assistance of counsel”). Likewise, the PCRA court acted
in its discretion in holding that Appellant was not prejudiced by counsel’s
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failure to call Appellant’s family members as witnesses because their evidence
would have been cumulative of Dr. Dattilio’s testimony. See id. at 12-13.
Appellant next argues that counsel was ineffective during closing
arguments when she stated that Appellant was competent and did not suffer
from psychosis. We consider this claim mindful of the following:
The right to effective assistance of counsel extends to closing
arguments, the purpose of which is to sharpen and clarify the
issues presented to the trier of fact. Because of the broad range
of legitimate defense strategies at this stage of the proceeding,
great deference is accorded counsel’s tactical decisions in
his closing presentation. A misstatement by counsel when
referring to evidence does not necessarily demand relief,
particularly because the jury is instructed that the arguments of
counsel are not evidence. Although we do not disregard
completely the reasonableness of other alternatives available to
counsel, the balance tips in favor of a finding of effective
assistance as soon as it is determined that trial counsel’s decision
had any reasonable basis.
Commonwealth v. Cooper, 941 A.2d 655, 664 (Pa. 2007) (cleaned up).
In the case sub judice, the PCRA court rejected Appellant’s claim that
counsel was ineffective for stating during closing argument that Appellant was
competent where Appellant in fact was competent to stand trial and, when
considered as a whole, counsel’s closing argument “exhorted the defense
theory of an imperfect self-defense excellently.” PCRA Court Opinion, 2/3/22,
at 13-16. Moreover, counsel’s discussion of psychosis served to undermine
the testimony of the Commonwealth’s expert witness, who opined that
Appellant did not suffer from psychosis, by emphasizing that the defense
never claimed Appellant suffered from psychosis. Our review of the certified
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record supports the PCRA court’s findings and we discern no error in its
decision. Accordingly, we affirm the dismissal of this claim.
Appellant next argues that counsel was ineffective for failing to object
to the trial court instructing the jury on the insanity defense. We consider this
claim pursuant to the following well-established principles:
A trial court has broad discretion in formulating and delivering
instructions to a jury. When reviewing the exercise of that
discretion, an appellate court must evaluate the trial court’s
instruction as a whole to determine if it was fair or prejudicial. A
trial court may use such language as it chooses, so long as the
law is clearly, adequately, and accurately presented to the jury for
its consideration. We will not rigidly inspect a jury charge, finding
reversible error for every technical inaccuracy, but rather evaluate
whether the charge sufficiently and accurately apprises a lay jury
of the law it must consider in rendering its decision. Error cannot
be predicated on isolated excerpts of the charge, but it is the
general effect of the charge that controls.
Commonwealth v. Drummond, ___ A.3d ___, No. 28 EAP 2021, 2022 WL
17171610, at *6 (Pa. Nov. 23, 2022) (cleaned up). The PCRA court aptly
discussed its reasoning for dismissing this claim, the certified record supports
its findings, and we discern no error in its decision. Accordingly, we affirm the
dismissal of this claim on the basis of the PCRA court’s analysis. See PCRA
Court Opinion, 2/3/22, at 17-19 (rejecting Appellant’s claim that counsel was
ineffective for failing to object to a jury instruction regarding insanity because
“[t]he evidence clearly was sufficient to warrant the instruction”).
Appellant next argues that counsel rendered ineffective assistance by
coercing Appellant to waive a voluntary intoxication defense. The PCRA court
found the underlying claim lacked merit as Appellant had provided no evidence
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of coercion and was colloquized by the trial court regarding counsel’s strategic
decision to forego the voluntary intoxication defense and Appellant’s
agreement with that strategy at the time of the charging conference.
Moreover, the PCRA court concluded that Appellant failed to establish
prejudice because the jury was still asked to consider a verdict less than first-
degree murder by virtue of Appellant’s claim of imperfect self-defense. See
PCRA Court Opinion, 2/3/22, at 16-17. After review, the certified record
supports the PCRA court’s findings and we discern no error in its decision.
Accordingly, we affirm the dismissal of this claim.
In his penultimate claim, Appellant argues that counsel provided
ineffective assistance by abandoning Appellant’s invocation of self-defense
and conceding to the jury during closing argument that Appellant was acting
pursuant to imperfect self-defense and, therefore, should be found guilty of
voluntary manslaughter. Our Supreme Court has held that a “strategic
decision to concede guilt only to manslaughter during closing arguments is
qualitatively different from a complete failure to subject the state’s case to
adversarial testing[.]” Commonwealth v. Cousin, 888 A.2d 710, 720 (Pa.
2005), abrogated on different grounds, Commonwealth v. Roebuck, 32
A.3d 613 (Pa. 2011). Indeed,
there are multiple scenarios in which a defense attorney may
reasonably determine that the most promising means of
advancing his client’s interests is to admit what has become plain
to all concerned—that his client did in fact engage in at least some
of the underlying conduct complained of—but either to argue for
conviction of a less severe offense, or to plead for mercy in
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sentencing based upon the facts viewed in a light favorable to the
defendant.
Id. at 719.
In the case sub judice, the PCRA court concluded that counsel was not
ineffective for abandoning Appellant’s claim of self-defense and conceding in
closing argument that Appellant was guilty of voluntary manslaughter. The
court found that Appellant presented no evidence that he objected to counsel’s
strategy and counsel’s decision to encourage “the jury [to] find the lesser
charge of voluntary manslaughter rather than a full self-defense was realistic,
especially in light of the overwhelming evidence presented, including videos
of the stabbings.” PCRA Court Opinion, 2/3/22, at 19-21. The certified record
supports the findings of the PCRA court and we discern no error in its decision
to dismiss this claim. See Cousin, supra at 720 (“There is no indication,
moreover, that counsel failed to engage in appropriate cross-examination,
adduce evidence favorable to the defendant, or make appropriate objections
during the trial. It was only when the presentation of evidence was complete
and counsel realized that expecting an acquittal on the homicide charge was
unrealistic, that he decided to advocate in favor of the lowest level of homicide
possible under the circumstances.”). Accordingly, we affirm the dismissal of
this claim.
Finally, we turn to Appellant’s arguments regarding the text messages.
We begin with Appellant’s supplemental PCRA claim that counsel was
ineffective for failing to object to the Commonwealth’s misstatement of the
timeline for the text messages during closing arguments. Upon review, the
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certified record reveals that the Commonwealth did not misstate the timeline
for the text messages in its closing argument. Rather, the Commonwealth
argued that the totality of the circumstances, which included the text
messages from right before the murder about Appellant being on a mission,
the messages a couple days prior about enjoying stabbing people who bother
him, and the physical evidence regarding the stab wounds, evinced Appellant’s
specific intent to kill. See N.T. (Jury), 11/21/17, at 86-89. Therefore,
Appellant’s claim that counsel was ineffective for failing to object to the
Commonwealth’s misstatement is without merit and the PCRA court did not
err in dismissing this claim.4
Next, Appellant argues that counsel was ineffective for failing to object
to the admission of the text messages on the grounds of authenticity. The
PCRA court offered a sufficient explanation why counsel’s failure to object on
these grounds warranted no relief as the underlying claim lacked merit. See
PCRA Court Opinion, 2/3/22, at 21-23. Specifically, the cell phone was taken
from Appellant’s possession within hours of the incident and substantial
circumstantial evidence supported the conclusion that Appellant was the
author and receiver of the relevant text messages. See id. at 23 (observing
that “the vast majority of the messages were with ‘Stephanie’, [Appellant’s]
sister’s name” and “[n]umerous texts referred to mom and/or dad” and
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4 We observe that the PCRA court did not address this claim in its Rule 1925(a)
opinion. However, we may affirm the decision of the PCRA court on any legal
basis apparent from the record. See Commonwealth v. Parker, 249 A.3d
590, 595 (Pa.Super. 2021) (citation omitted).
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Appellant’s “imaginary friend, ‘Harry’”). The certified record supports the
findings of the PCRA court and we discern no error in its decision to dismiss
this claim. Therefore, we affirm the dismissal of this claim on the basis of the
PCRA court’s opinion.5 See id. at 21-23.
Finally, we turn to Appellant’s claim that counsel was ineffective for
failing to object to the admission of the text messages on hearsay grounds.
This Court has held that when the Commonwealth proves that a defendant
authored the relevant text messages, it is “proper for the trial court to admit
those text messages into evidence under the party-opponent exception to the
rule against hearsay.” Commonwealth v. Williams, 241 A.3d 1094, 1103
(Pa.Super. 2020). As discussed supra, the Commonwealth established that
Appellant authored the relevant text messages. Thus, the PCRA court did not
err in dismissing Appellant’s PCRA claim as the underlying claim lacks merit.
See Commonwealth v. Parker, 249 A.3d 590, 595 (Pa.Super. 2021) (“This
Court may affirm a PCRA court’s order on any legal basis.” (citation omitted)).
Based on the foregoing, we affirm the order of the PCRA court dismissing
Appellant’s ineffective assistance of counsel claims. The parties are instructed
to attach a copy of the PCRA court’s February 3, 2022 opinion to all future
filings in this matter.
Order affirmed.
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5 We assume the PCRA court’s reference to the "seminole case" of
Commonwealth v. Koch, 39 A.3d 996 (Pa.Super. 2011), on page 21 of its
opinion was a typographical error and not a suggestion that Koch was based
upon tribal law.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2023
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Circulated 12/19/2022 10:58 AM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA CRIMINAL TRIAL DIVISION
Vs. 2451 EDA 2021
STEVEN SIMMINGER CP-51-CR-0003208-2016
OPINION
FILED
FEB:. 3 2022
O'KEEFE,J.
Appeals/Pos! 'nai
Office of JUdic1a1 Records
Defendant, Steven Simminger, appeals this court's dismissal of his Post-Conviction Relief
Act (hereinafter, for the sake of brevity referred to as PCRA) petition pursuant to 42 Pa.C.S. §
9541 et seq.
PROCEDURAL HISTORY:
On March 13, 2016, the defendant was arrested and charged with murder and possessing
an instrument of crime. Simminger was bound over for trial on all charges following a March 30,
2016, preliminary hearing. A motion to quash was heard and denied on June 2, 2016. Mr. Sim-
minger' s Suppression Hearing was heard and denied on August 31, 2017, with trial commencing
November 22, 2017. A jury convicted Simminger of first-degree murder and possessing the in-
strument of a crime, and he was subsequently sentenced to life without the possibility of parole
plus two and a half to five years' incarceration. The defendant timely filed a notice of appeal. The
0051_Opinion
Superior Comi of Pennsylvania affirmed the judgement of sentence on August 21, 2019, with our
Supreme Court denying allocatur on January 28, 2020.
A counseled PCRA petition was filed January 14, 2021, which was supplemented June
30th. The Commonwealth filed a motion to dismiss on July 9, 2021, to which the defendant re-
sponded on August 2 11 ct. After an independent review of the record in its entirety, a notice pursuant
to Pa.R.Crim.P. 907 was sent to the parties on October 15th. On November 1st, the defendant filed
a response to the 907 notice and after another independent review the petition was dismissed on
November 15th. Timely appeal was made, necessitating this opinion.
STANDARD OF REVIEW:
When reviewing an order denying a PCRA petition, an appellate court looks to whether
the PCRA court's decision is supported by the evidence ofrecord and is free of legal error. Com-
monwealth v. Spatz, 624 Pa. 4, 84 A.3d 294 (2014). On questions of law, the standard ofreview
is de nova and the scope of review is plenary. Commonwealth v. Henkel, 90 A.3d 16, 20
(Pa.Super.2014). The court will grant great deference to the factual findings of the PCRA court
and will not disturb those facts unless they have no support in the record. Id.FACTS:
In the early morning hours of March 13, 2016, Sean Boyd, Colin McGovern, Casey Walsh
and Gabby Difrancesco were walking around Rittenhouse Square in center city Philadelphia, look-
ing for a place to crash for the night. (N.T. 11-14-2017, pp. 75-77). Steven Simminger was roam-
ing the same streets. When Simminger and the four's paths crossed, Boyd made a snide remark
about the Jersey Devils' hat the defendant was wearing. (N.T. 11-14-2017, pp. 77-79; 11-16-2017,
pp. 5-8). An argument ensued. An unarmed Boyd and McGovern approached the defendant.
2
Simminger took a knife out of his right coat pocket. As McGovern got closer, Simminger lunged,
stabbing McGovern in the stomach. The defendant then lunged and slashed at Boyd but missed.
McGovern then grabbed the defendant, and both landed on the ground, wrestling, with McGovern
ending up on top. Again, Simminger stabbed the unarmed McGovern, this time in the heart. Boyd
pulled McGovern away and the two got several steps away before McGovern collapsed from his
wounds and soon died. The defendant fled, returning to get his hat and another object before again
fleeing. (N.T. 11-14-2017, pp. 80-85; 11-15-2017, pp. 26-32; 11-16-2017, pp. 9-10). Simminger
went home to New Jersey, returning to Philadelphia the next morning to the Veteran's Administra-
tion Hospital for treatment ofa cut to his hand. (N.T. 11-14-2017, pp. 144-148). The police were
eventually called, the defendant arrested, and found among his possessions were two knives. His
clothes were soaked with Colin McGovern's blood, as was one of the two knives. (N.T. 11-14-
2017, pp. 139-142). Simminger's cell phone displayed texts in which the defendant revealed that
'he likes stabbing', stating that stabbing "Is a rush," "Is satisfying" and "Is what mother-fuckers
deserve when they bother me." (N .T. 11-15-2017, pp. 44-4 7).
LEGAL DISCUSSION:
Denial of PCRA Petition
The standard and scope of review for the denial of a PCRA petition is well-settled. The
appellate court examines a PCRA appeal in the light most favorable to the prevailing paiiy at the
PCRA level. The court's review is limited to the findings of the PCRA court and the evidence of
record. Additionally, the reviewing court grants great deference to the factual findings of the
PCRA court and will not disturb those findings unless they have no support in the record. In this
respect, the appellate court will not disturb a PCRA court's ruling if it is supported by evidence of
record and is free of legal error. However, where the petitioner raises questions of law, the stand-
3
ard of review is de nova, and the scope of review is plenary. Commonwealth v. Henkel, 90 A.3d
16, 20 (Pa.Super.2014), appeal denied, 101 A.3d 785 (Pa.2014) (citations and quotation marks
omitted).
Appellant asserts that this court erred in summarily dismissing claims raised in his PCRA
petition. (Statement of Matters Complained of on Appeal, p. 1). Pennsylvania Rule of Criminal
Procedure 907 provides the standard for dismissing a PCRA petition without a hearing:
"( 1) the judge shall promptly review the petition, any answer by
the attorney for the Commonwealth, and other matters of record re-
lating to the defendant's claim(s). If the judge is satisfied from this
review that there are no genuine issues concerning any material fact
and that the defendant is not entitled to post-conviction collateral
relief, and no purpose would be served by any fmiher proceedings,
the judge shall give notice to the parties of the intention to dismiss
the petition and shall state in the notice the reasons for the dismissal.
The defendant may respond to the proposed dismissal within 20
days of the date of the notice. The judge thereafter shall order the
petition dismissed, grant leave to file an amended petition, or direct
that proceedings continue."
There is no absolute right to a post-conviction petition hearing. It is clear, that a judge can
dismiss an initial petition without a hearing if the court concludes that there are no genuine issues
concerning any material fact, that the defendant is not entitled to post-conviction relief, and no
purpose would be served by further proceedings. Commonwealth v. Payne, 794 A.2d 902, 906
(Pa.Super. 2002) (citing Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.Super. 2001)). The
court may deny a defendant's request for an evidentiary hearing where the supporting factual al-
legations are "patently frivolous and is without a trace of support in either the record or from other
evidence." Id. If "allegations of ineffectiveness of counsel are baseless or meritless then an evi-
dentiary hearing is unnecessary and the unfounded allegations should be dismissed." Common-
wealth v. Clemmons, 505 Pa. 356, 479 A.2d 955, 957 (1984). Furthermore, it is almost axiomatic
4
that it is the defendant in a PCRA proceeding who bears the burden of proof and need meet that
burden by a preponderance of the evidence. 42 Pa.C.S § 9543(a).
Ineffective Assistance of Counsel
The law in Pennsylvania is straightforward that counsel is presumed effective and a de-
fendant claiming ineffective assistance of counsel bears the burden of proving otherwise. Com-
monwealth v. Fears, 624 Pa. 446, 86 A.3d 795 (2014); Commonwealth v. Cross, 535 Pa. 38, 634
A.2d 173 ( 1993). To overcome this presumption, a defendant must meet a three-component stand-
ard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):
First, the underlying claim must have arguable merit. Commonwealth v. Lauro, 819 A.2d 100, 105-
106 (Pa.Super.2003); Commonwealth v. Rollins, 558 Pa. 532, 542, 738 A.2d 435, 441 (1999);
Commonwealth v. Travaglia, 541Pa.108, 661A.2d352, 356 (1995). Second, no reasonable basis
must exist for counsel's actions or failure to act. In making this determination, the appellate court
does not question whether there was a more logical course of action which counsel could have
pursued, but rather did counsel's decision have any reasonable basis. Commonwealth v. Rollins,
supra, 558 Pa. at 542, 738 A.2d at 441. Lastly, the defendant must establish that he suffered
prejudice because of counsel's error, such that there is a reasonable probability that the outcome
of the proceeding would have been different absent such an error. Commonwealth v. Fears, supra,642 Pa. at 461, 86 A.3cl at 804; Commonwealth v. Lesko, 609 Pa. 128, 15 A.3d 345, 373-74 (2011)
(citing Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987)). It is not enough for the
defendant to claim that counsel could have taken different steps, but rather, he must prove that
counsel's strategy was "so unreasonable that no competent lawyer would have chosen it." Com-
monwealth v. Dunbar, 503 Pa. 590, 4 70 A.2d 74, 77 (1983); Commonwealth v. Albrecht, 510 Pa.
603, 511 A.2d 764, 775 (1986). Counsel is presumed to have rendered effective assistance, and,
5
if a claim fails under any required element of the Strickland test, the court may dismiss the claim
on that basis. Commonwealth v. Vandivner, 634 Pa. 482, 490, 130 A.3d 676, 680 (2015). To
obtain relief based upon a claim of ineffective assistance of counsel, a petitioner must establish by
a preponderance of evidence that counsel's ineffectiveness "so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S. §
9543(a)(2)(ii).
Failure to Present Testimonv from Forensic Psvc/liatrist
Simminger's first allegation of ineffective assistance is trial counsel's failure to present a
forensic psychiatrist to establish that the defendant lacked the specific intent to kill necessary for
a first degree murder at the time of the stabbing and therefore failing to present a "mental health
defense." (Statement of Errors Complained of on Appeal, p. 1). It should be noted, first and fore-
most, that trial counsel hired, and presented the testimony of Dr. Frank M. Dattilio, Ph.D., a clinical
and forensic psychologist, as well as Cyril Wecht, M.D. a forensic medical examiner. Simminger
contends that only a forensic psychiatrist, not psychologist, would be the proper expert and that
counsel's conduct was so far below the standard of criminal defense that no competent lawyer
\Vould hire a psychologist rather than his newfound psychiatrist, Dr. Stephen Mechanick, M.D.
Dr. Mechanick reports that he reviewed Simminger's United States Naval records, VA
records, the two reports of the aforementioned psychologist as well as that expert's notes, the report
of the psychiatrist hired by the prosecution, a portion of the defendant's trial transcripts which
consisted only of the sections containing the testimony of Dr. O'Brien, the Commonwealth psy-
chiatrist, and of Dr. Dattilio on November 17th and 20 1h of2017 (although trial testimony began on
November 14th and was presented the 15!11, 16th, 17!11, 20 1h, and 21st), the Superior Court opinion on
direct appeal, and the report of Cyril Wecht, M.D., the medical examiner hired by the defense prior
6
to trial. The psychiatrist does not claim to have reviewed the videotape surveillance from the
Rittenhouse Hotel showing the stabbing (Discs 1 and 2), the videotape from the Metro Bakery or
the videotape of Mr. Simminger in the police interview room (although these were reviewed by
the psychologist who testified at trial). Dr. Mechanick's report alleges numerous claims of defi-
ciencies in the evaluation and testimony by the defense expert, Dr. Dattilio, resulting in an inade-
quate defense at trial. Dr. Mechanick's claims are addressed in detail below.
Expert's Failure to Test
Dr. Mechanick contends that:
"The defense's psychology expert, Dr. Dattilio, noted that Mr.
Simminger "appeared to have some cognitive deficits" and that neu-
ropsychological testing would be needed to evaluate this. Given Mr.
Simminger' s history of a very serious head injury and traumatic
brain syndrome, this should have been pursued. However, the rec-
ords I reviewed indicated that Mr. Simminger never had neuropsy-
chological testing. Such testing, if it showed cognitive impairment,
would have been essential to evaluate the role that the brain injury
played in Mr. Simminger' s behavior at the time of the offense. Ac-
cordingly, it is my opinion that Dr. Dattilio's evaluation was defi-
cient in not pursuing this, and this contributed to Mr. Simminger's
inadequate defense." [Emphasis added] (Stephen Mechanick Re-
port 12-29-2020, p. 11).
The psychiatrist is proposing that the psychologist was substandard for not performing cer-
tain neuropsychological testing, that those tests might have shown cognitive impairment. How-
ever, it is pure and utter, unsupported guesswork. This psychiatrist failed to perform the very tests
that he complains the psychologist did not perform. He can't say Simminger has cognitive im-
pairment, but he guesses that if the tests showed cognitive impairment, then a different defense
than the one chosen would have been appropriate. Clearly this claim is completely devoid of merit.
In discussing these allegations further, it is imperative to note, that the defense presented
in this case was one of imperfect self-defense, which if accepted by the jury would result in a
voluntary manslaughter conviction rather than a first- or third-degree murder finding. The PCRA
7
psychiatrist contends that the proper defense was one of diminished capacity, which would have
reduced a first-degree case to one of third-degree murder. He does this despite never having
viewed the videos of the stabbing, the interview the following morning while in police custody,
nor having reviewed the testimony of the witnesses to the incident, as well as a whole host of other
individuals testifying at trial.
The law is clear that an ineffective assistance of counsel claim cannot "generally succeed
through comparing, by hindsight, the trial strategy employed with alternatives not pursued. A
finding that a chosen strategy lacked a reasonable basis is not warranted unless it can be concluded
that an alternative not chosen offered a potential for success substantially greater than the course
actually pursued." Commonwealth v. Howard, 553 Pa. 266, 274, 719 A.2d 233, 237 (1998) (in-
ternal citations omitted). Here, counsel's trial strategy was completely reasonable, and defendant's
claim that an alternative strategy would have been successful is unwarranted, even if it were not
solely based on conjecture about what tests that still have never been performed could have possi-
bly revealed or by the presentation of a witness who has failed to review all available evidence.
Expert's Failure to diagnose Possible Frontal Lobe Damage
Dr. Mechanick further impugns the psychologist:
"Mr. Sirnminger was the victim of a serious car accident in 1994
that resulted in a concussion, traumatic brain injury, and partial am-
putation of his left leg. It is my opinion that Mr. Simminger' s brain
injury from that accident, as well as two other concussions he expe-
rienced, may have causedfi·ontal lobe damage that further impaired
his ability to process information, his judgment, and his impulse
control." [Emphasis added]. (Stephen Mechanick Report 12-29-
2020, p. 10)
Again, the psychiatrist is guessing. The doctor cites no tests since 1994 that had been
performed to assess frontal lobe damage, nor any tests he performed to properly make this assess-
8
ment, and to claim Dr. Dattilio was incompetent for not making such an untested claim is untena-
ble. To say the defendant may have .fi'ontal lobe damage, with no substantiation, no proper eval-
uation or testing is completely devoid of credit. This new expert's claim that the prior expert was
inadequate because the defendant may have .fi'ontal lobe damage is sheer speculation and cannot
be the basis of a finding of ineptness.
Expert's Failure to Alter Conclusions
Further along in Dr. Mechanick's conclusions he reports:
"It is my opinion that Dr. Dattilio failed to adequately address
the issue of how Mr. Simminger' s psychiatric illness and substance
intoxication impaired his ability to form specific intent. It is my
opinion that Dr.Dattilio should have discussed this issue with Mr.
Simminger' s attorney had [sic] helped the attorney to develop an
appropriate defense.
It is my opinion that, although Dr. Dattilio opined that Mr. Sim-
minger had a number of psychiatric diagnoses, and that he was par-
anoid and impaired at the time of the offense, he failed to consider
and develop an appropriate psychiatric/psychological opinion that
would have been helpful to Mr. Simminger's defense." (Stephen
Mechanick Report 12-29-2020, p. 12)
It appears this psychiatrist is mandating that mental health expert witnesses are to tailor
their analysis and conclusions to fit into the defense which presents the best chances of winning,
rather than basing one's conclusions on the evaluations made of the defendant. "Expe1i testimony
is generally admissible to aid the jury when the subject matter is distinctly related to a science,
skill or occupation which is beyond the knowledge or experience of an average lay person." Com-
monwealth v. Minerd, 562 Pa. 46, 55, 753 A.2d 225, 230 (2000) (internal citations omitted). Such
an expert may testify in the form of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3)
the witness has applied the principles and methods reliably to the facts of the case. See Grady v.
Frito-Lay, Inc., 576 Pa. 546, 839 A.2d 1038, 1045 (2003). Expert testimony cannot be used to
9
bolster the credibility of witnesses. Commonwealth v. Jvfinerd, supra; Commonwealth v. Johnson,
456 Pa.Super. 251, 254, 690 A.2d 274, 276 (1997). This psychiatrist's opinion of what would be
a successful defense, as well as his unsubstantiated claim to know the interaction between the trial
attorney and psychologist is not within the purview of his expertise, and frankly somewhat offen-
sive. His claim that it is incumbent upon the expert witness to develop an opinion based on what
he believes will win the case, rather than a scientific review of the evidence and evaluations is, to
say the least, not an acceptable criticism of the trial expert in this matter, and as such defendant's
claim of trial counsel's ineffectiveness in not procuring such an expert is inappropriate.
Defendant's perception of Risk a{ier Altercation
Another conclusion by the PCRA psychiatrist:
"It is my opinion that Mr. Simminger had an impaired perception of
risk after the altercation, as he thought other people (the man's
friends) would come after him. Based on my review of the available
records and Mr. Simminger's statements to me, he did not realize
the other man had died until after he went to the VA." (Stephen
Mechanick Report 12-29-2020, p. 11)
The psychiatrist neglects to advise how the defendant's perception that other people would
come after him was indicative of a mental illness that the trial expert misdiagnosed. When the
fight occurred, Simminger was fighting against two males, with tvvo female companions nearby.
When Simminger ran away, the decedent was walking towards his companions. (N.T. 11-14-
2017, pp. 84-85). Indeed, Simminger told this psychiatrist that "the two men walked back to the
two women." (Stephen Mechanick Report 12-29-2020, p. 3). Mr. Colin McGovern collapsed
shortly thereafter, but there was no testimony indicating that the defendant knew McGovern was
dead at that point. Nor, since the decedent was in the company of three other individuals, does the
psychiatrist explain how Simminger's fear that others would come after him was an impaired per-
10
ception of risk. Again, this conclusion is without basis, is factually incorrect and clearly not a
reason to declare the trial expert incompetent.
Failure o(Counsel to l'vfeet with Expert
Counsel and the PCRA expert contend throughout their writings that counsel failed to meet
often enough with her experts resulting in a deprivation of justice for this defendant. For example,
"Dr. Dattilio should have discussed the issue ... with trial counsel" (Memorandum of Law in Sup-
port of Petition for Post-Conviction Reliefp. 21); " ... again due to trial counsel's lack of involve-
ment with her expert ... " (Memorandum of Law in Support of Petition for Post-Conviction Relief
p. 22); and "It is my opinion that Dr. Dattilio should have discussed this issue with Mr. Sim-
rninger' s attorney ... and discuss the available defenses with Mr. Simminger' s attorney" (Stephen
Mechanick Report 12-29-2020, p. 12). Again, there is nothing to substantiate this claim. Nothing
has been presented as to how often counsel met with, telephoned, or had any other type of com-
munication with the experts nor the extent of their communications. The lack of even a scintilla
of evidence is fatal to this claim.
Presenting the Wrong Defense
The crux of the psychiatrist's complaints is that trial counsel and the expe1i psychologist
presented the wrong defense. The new psychiatrist contends the proper defense was diminished
capacity, not imperfect self-defense. The PCRA expert contends that Simminger's psychiatric
illness and substance intoxication impaired his ability to form specific intent to kill and that that
was the only proper mental health explanation that should have been used, even though the psy-
chiatrist had not viewed any of the surveillance videos of the killing nor the video of the defendant
when in police custody. Likewise he had not reviewed any of the fact witness' testimony.
Mechanick further complains that the psychologist's conclusions were insufficient in that he used
11
terms such as "mental condition at the time of the instant offense contributed to his belief that he
was in immediate danger" and "that his actions in his mind were justified as a measure of self-
defense." (Stephen Mechanick Report 12-29-2020, p. 12). Such criticism is petty and trifling.
Dr. Dattilio was clear in his report and testimony that the defendant incorrectly believed he was in
danger of death and responded to protect himself. Moreover, the new expert's report confirms the
imperfect self-defense argument in that Simminger told the psychiatrist "He stated that [he] took
the knife that he was carrying with him out of his pocket because he felt scared ... Mr. Simminger
stated that he stabbed the man to protect himself." (Stephen Mechanick Report 12-29-2020, p. 3).
The new expert merely contends that he would have done things differently - essentially admitting
to third degree murder rather than present an imperfect self-defense argument - but in no way does
either the defendant or his new expert come close to showing that counsel had no reasonable basis
for presenting an imperfect self-defense justification to the jury. As previously noted, a proposed
alternate trial strategy based on conjecture cannot substantiate a claim for ineffective assistance of
counsel. As such, this claim is without merit.
Failing to Present Familv Afembers
Next, defendant claims that "trial counsel was ineffective for failing to properly investigate
and present fact witnesses regarding Petitioner's historical mental health issues with family and
friends." (Statement of Errors Complained of on Appeal, p. 1). Defendant argues that his family
members should have been presented to the jury to humanize him and further support his mental
health issues, including the defendant's imaginary friend "Harry". However, this information was
presented to the jury through the extensive testimony of Dr. Dattilio, who reported that he had
interviewed all three family members in preparing his report, as well as the texts with his sister
prior to the killing concerning "Harry". "Trial counsel will not be deemed ineffective for failing
12
to assert a claim that would not have been beneficial, or for failing to interview or present witnesses
whose testimony would not have been helpful." Commonwealth v. Howard, 553 Pa. 266, 274, 719
A.2d 233, 237 (1988). "To demonstrate Strickland prejudice, a petitioner 'must show how the
uncalled \vitnesses' testimony would have been beneficial under the circumstances of the case."'
Con1mo1mea!th v. Sneed, 616 Pa. 1, 45 A.3d 1096, 1109 (2012) (quoting Commonwealth v. Gib-
son, 597 Pa. 402, 951 A.2d 1110, 1134 (2008)). Further, "counsel cannot be deemed ineffective
for failing to pursue cumulative evidence." Commonwealth v. Hall, 549 Pa. 269, 300, 701 A.2d
190, 206 (1997) (citing Commonwealth v. Cross, 535 Pa. 38, 46, 634 A.2d 173, 177 (1993)).
As Dr. Dattilio testified at length about the defendant's mental health issues, incorporating
information he had received from the defendant's family, counsel was in no way required to call
witnesses to present cumulative evidence of the defendant's mental health history. The defend-
ant's claim that this would have negated the specific intent to kill required for first degree murder
is without support and accordingly fails.
Allegatio11 oflne(fective11ess in Closimt Argument and Conceding Defendant was Competent
Next Simminger contends counsel was ineffective in her closing argument, conceding the
defendant's competency and that he did not have psychosis. (Statement of Errors Complained of
on Appeal, p. 1). An individual is competent to stand trial when they have sufficient ability to
consult with counsel with a reasonable degree ofrational understanding and to have a rational and
factual understanding of the proceedings. Commonwealth v. Watkins, 630 Pa. 652, 108 A.3d 692(2014); Commonwealth v. Pruitt, 597 Pa. 307, 951 A.2d 307 (2008). Mr. Simminger was not
found to be incompetent. The PCRA Psychiatrist did not claim that the defendant was not com-
petent. Counsel cannot be found wanting for stating the defendant was competent when he was in
fact competent.
13
As for the specific complaints about counsel's closing argument, the portion of the closing
to vvhich the defendant now protests was as follows:
"Maybe me, maybe one of you who doesn't suffer from any
kind of mental disorder; maybe if that happened to us, we wouldn't
have thought we '''ere going to be killed or jumped or beaten. How-
ever, you have to take the state of mind of Mr. Simrninger.
Murder of the first degree requires specific intent to kill.
Okay. The district attorney has talked about intentional acts. He
intentionally walked here. He intentionally did this. He intention-
ally crossed the street. He said it at least 20 times. And I submit to
you, yes, he intentionally stabbed him. That's not the question
whether nor not the stabbing was i11fe11fional. The question is
whether the i11te11t to kill. The 111e11ta/ intent. That is what is a ques-
tion in this case. Did he possess the specific intent to kill during the
time of this incident given his mental state? ...
I submit to you we have never said that A1r. Simminger has
psychosis. We have never said that he doesn't understand what's
going on. He is competent. He understands he's competent lo stand
trial. That is not the defense i11 this case.
The defense in this case is because of his mental state, that
he believed that he was in immediate danger of being killed ... (N.T.
11-21-2017, pp. 56-57).
Dr. Dattilio states that he was diagnosed at one point with
PTSD, with schizophrenia, with the mood disorder. Dr. O'Brien
actually took that stand and said, Well, since he has so many diag-
noses and they couldn't pinpoint which one down it was, it's just the
drugs or alcohol. You have someone who is being prescribed an
anti psychotic medication. (N.T. 11-21-2017, pp. 57-58).
The defendant is being extremely selective in what they are presenting and taking a few
statements completely out of context. The closing argument needs to be reviewed as a whole. The
courts are highly deferential to a defense attorney's closing summation:
"The right to effective assistance extends to closing argu-
ments. Nonetheless, counsel has wide latitude in deciding how best
to represent a client, and deference to counsel's tactical decisions in
his closing presentation is particularly important because of the
broad range of legitimate defense strategy at that stage. Closing ar-
guments should 'sharpen and clarify the issues for resolution by the
trier of fact,' but which issues to sharpen and how best to clarify
14
them are questions with many reasonable answers. Indeed, it might
sometimes make sense to forgo closing argument altogether. Judi-
cial review of a defense attorney's summation is therefore highly
deferential." Yarborough v. Gentry, 540 U.S. 1, 5-6, 124 S.Ct.1, 4,
157 L.Ed.2d 1 (2003) (internal citations omitted).
Counsel discussed the standards applicable in a criminal trial, the jurors' duty to weigh the
evidence fairly and impartially, the evidence presented and the logical and relevant inferences
therefrom, the holes in the government's theory as well as the evidence that the prosecutor did not
present to the jury \Vhen they had the chance, the police and their actions and conclusions, the
videos presented as well as the physical evidence and the experts presented, the reason to believe
the defense experts as well as the reasons to disbelieve the prosecution expert, and did so in a way
that exhorted the defense theory of an imperfect self-defense excellently. There was nothing de-
ficient in counsel's performance. Her summation was a reasonable approach to the evidence pre-
sented, as well as in accordance with the theory presented.
Indeed, counsel's concession of the defendant's actions resulting in the death of the dece-
dent to have the jury find the lesser charge of voluntary manslaughter rather than first degree mur-
der was realistic, especially considering the overwhelming evidence presented, including videos
of the stabbings. Counsel vigorously cross-examined the prosecution's witnesses, presented a
profusion of evidence on the defendant's behalf, made appropriate objections, and advocated vo-
ciferously for her client. Our law is clear, an attorney may, when facing overwhelming evidence
of guilt, strategically decide to admit a certain amount of culpability in order to preserve credibility
with the factfinder so that their argument for a lesser degree of guilt will have a higher chance of
succeeding. Commonwealth v. Cousin, 585 Pa. 287, 301-03, 888 A.2d 710, 719-20 (2005), abro-
gated on different grounds, Commonwealth v. Roebuck, 32 A.3d 613 (Pa.2011); Commonwealth
v. Bryant, 579 Pa. 119, 855 A.2cl 726 (2004); Commonwealth v. Def-fart, 539 Pa. 5, 18, 650 A.2d
1538, 44 (1994), abrogated on different grounds, Commonwealth v. Keaton, 45 A.3d 1050 (Pa.2012);
Commonwealth v. Johnson, 572 Pa. 283, 307, 815 A.2d 563, 577 (2002); Commonwealth v. Lofion,
448 Pa. 184, 189, 292 A.2cl 327, 330 (1972). Considering the deference afforded a closing sum-
mation, and counsel clearly had a reasonable basis for this strategy, this claim is without merit.
Coerci11g Defendant to Waive Defense of Vo/1111tarv Intoxication
Appellant further contends that trial counsel's request to waive the defense of voluntary
intoxication was improper and that counsel coerced the defendant into agreeing without a knowing
waiver. (Statement of Errors Complained of on Appeal, p.1; Memorandum of Law in Support of
Petition for Post-Conviction Relief p. 27). First, it needs to be pointed out that PCRA counsel
offers not an iota of evidence that the defendant was coerced.
At the charging conference, counsel requested that, for strategic reasons, she did not want
the voluntary intoxication instruction read to the jury. When this occurred, the defendant was then
colloqued as follows:
"THE COURT: Counsel also talked to you about voluntary
intoxication. Under the law voluntary intoxication is usually not an
offense but it can reduce first degree to third degree in certain cir-
cumstances.
Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Have you gone over that with your attorney?
THE DEFENDANT: Yes.
THE COURT: You're entitled for me to charge the jury with
the voluntary intoxication charge to the jury which would allow
them to reduce any charge from first degree to third degree.
Do you understand that?
THE DEFENDANT: Yes.
16
THE COURT: And your attorney has said that she talked to
you about it and she doesn't wish to present that as a matter of strat-
egy.
Have you talked with her about that strategy?
THE DEFENDANT: Yes.
THE COURT: Do you agree with her about that strategy?
THE DEFENDANT: Yes.
THE COURT: So it's your position you do not want the vol-
untary intoxication charge read to the jury; is that correct?
THE DEFENDANT: Yes. (N.T. 11-21-2017, pp. 42-43).
For the defendant to succeed in his claim, he \.vould need to assert that he was lying under
oath when he swore that he had discussed the strategy with his attorney and agreed with that strat-
egy, and the record clearly shows that he agreed. He is barred from doing so. See Commonwealth
v. Michaud, 70 A.3d 862, 874 (Pa.Super.2013); Commonwealth v. Pollard, 832 A.2d 517, 524
(Pa.Super.2003); Commonwealth v. Cappelli, 340 Pa.Super. 9, 489 A.2d 813, 819 (1985); Com-
monweulth v. JtVillis, 68 A.3d 997, 1009 (Pa.Super.2013).
Appellant further claims that trial counsel's action removed from the juries' [sic] consid-
era ti on a verdict less than first degree murder. (Memorandum of Law in Support of Petition for
Post-Conviction Relief p. 28). That statement is completely incorrect. Trial counsel asked for,
and the jury was subsequently charged ·with the voluntary manslaughter instruction. It was the
defense's entire theory that if the defendant should be convicted of anything, it should be voluntary
manslaughter.
Failure to Object to Jurv Instruction
Next, defendant asserts that "counsel was ineffective for failing to object to specific jury
instructions that were clearly not supported by the evidence as there was no testimony from a
psychological position for an insanity defense." (Statement of Errors Complained of on Appeal,
17
p. 2). Prior to trial, defense counsel filed two notices of insanity or mental infirmity defense. The
prosecution filed a motion to preclude any such defense, which was denied. The PCRA petition
alleges that defense counsel was ineffective in failing to object to the charge. When reviewing a
challenge to a portion of the jury charge, the appellate court must review the jury charge as a whole
to determine if it is fair and complete. A trial court has wide discretion in how it phrases its
instructions, as long as it clearly, adequately and accurately presents the law to the jury. The court
commits an abuse of discretion only when there is an inaccurate statement of the law. Common-
wealth v. Conaway, l 05 A.3d 755, 760-61 (Pa.Super.2014); Commonwealth v. Roser, 914 A.2d
447, 455 (Pa.Super.2006). The standard ofreview of a challenged jury instruction is well-settled:
When reviewing jury instructions for reversible error, an appellate
court must read and consider the charges as a whole. We will uphold
an instruction if it adequately and accurately reflects the law and is
sufficient to guide the jury through its deliberations. Error will not
be predicated on isolated excerpts. Instead, it is the general effect
of the charge that controls. An erroneous charge warrants the grant
of a new trial unless the reviewing court is convinced beyond a rea-
sonable doubt that the error is harmless.
Commonwealth v. Ketterer, 725 A.2d 801, 804-805 (Pa.Super.1999) (citing Commonwealth v.
Nichols, 692 A.2d 181, 186 (Pa.Super.1997)).
A trial court is bound to charge a jury on the correct legal principles applicable to the facts
presented at trial. Commonwealth v. Cox, 546 Pa. 515, 686 A.2d 1279 (1996). The trial court has
broad discretion in how it phrases its instructions to a jury, so long as the law is clearly, adequately
and accurately presented to the jury for its consideration. Commonwealth v. Gibson, 553 Pa. 648,
665, 720 A.2d 473, 481 (1998) (citing Commonwealth v. Hawkins, 549 Pa. 352, 701A.2d492
(1997), cert. denied, 523 U.S. 1083, 118 S.Ct. 1535, 140 L.Ed.2d 685 (1998)).
18
Prior to charging the jury, counsel discussed some of the proposed instructions including
the mental infirmity instruction. (N.T. 11-21-2017, pp. 36-40). This court read the Pe1msylvania
Suggested Standard Criminal Jury Instructions during its charge. The appellant now denounces
the charge and counsel's failure to object to it, in that "Petitioner's mental health defense was not
fully developed and supported by the evidence." (Memorandum of Law in Support of Petition for
Post-Conviction Relief p. 33). No further specificity is provided, so it is assumed that PCRA
counsel is again citing their new expert who would have done things differently. The evidence
clearly \Vas sufficient to warrant the instruction and as such counsel cannot be faulted for failing
to object to a proper instruction. See Commonwealth v. Gass, 514 Pa. 287, 523 A.2d 741, 742-43
( 1987). Accordingly, this claim is without merit.
Counsel E(fective/)I FVaived Self-De(e11se
The defendant next protests that "counsel was ineffective for abandoning appellant's de-
fense of self-defense, which a defense expert witness had presented, by conceding in her closing
argument that he was guilty of voluntary manslaughter." (Statement of Errors Complained of on
Appeal, p. 2). Defendant has further argued that counsel did this "without first discussing that
strategy vvith Petitioner and without his assent or approval." (Memorandum of Law in Support of
Petition for Post-Conviction Relief~ p. 35). Once again, there is not a scintilla of evidence prof-
lerecl that the defendant did not agree with the chosen strategy. The PCRA petition is not signed
by the defendant but by counsel. No affidavit from the defendant has been attached verifying the
contention. As such, this complaint, as several others in this petition, is unsubstantiated.
The defendant attempts to rely upon United Stales v. Cronic, 466 U.S. 648, 104 S.Ct. 2039,
80 L.Ecl.2d 657 (1984) for the proposition that counsel cannot argue that their client is guilty of a
lesser offense because that amounts to a guilty plea of the lesser offense without the defendant's
19
specific agreement. As noted in the preceding paragraph, no evidence has been offered to show
the defendant did not agree. Moreover, the defense is ignoring our Supreme Court's precedent of
Commonwealth v. Cousin, 585 Pa. 287, 888 A.2d 710 (2005), abrogated on different grounds,
Commonwealth v. Roebuck, 32 A.3d 613 (Pa.2011 ), which specifically addressed Cronic and de-
termined that it is only applicable when counsel's failure has been complete so as to thoroughly
remove any pretension that the accused had counsel's reasonable assistance. Id., 585 Pa. at 301,
888 A.2d at 718-19. See also Commonwealth v. Steele, 599 Pa. 341, 384-85, 961 A.2d 786, 811-
12 (2008), abrogated on difj'erent grounds, Pena-Rodriguez v. Colorado, 13 7 S.Ct. 855, 197
L.Ed.2d l 07 (2017). The presumption of prejudice is not triggered when trial counsel concedes
guilt of a lesser crime in their closing argument. Commonwealth v. Cousin, supra, 585 Pa. at 303,
888 A.2d at 720.
Indeed, as previously stated, counsel's concession of the defendant's actions resulting in
the death of the decedent in an attempt to have the jury find the lesser charge of voluntary man-
slaughter rather than a full self-defense was realistic, especially in light of the overwhelming evi-
dence presented, including videos of the stabbings. Counsel vigorously cross-examined the pros-
ecution's witnesses, presented a profusion of evidence on the defendant's behalf~ made appropriate
objections, and advocated vociferously for her client. The killing was on video, and counsel pur-
sued a reasonable strategy designed to best advocate for her client's interests. Our law is clear, an
attorney may, when facing overwhelming evidence of guilt, strategically decide to admit a certain
amount of culpability to preserve credibility with the factfinder so that their argument for a lesser
degree of guilt will have a higher chance of succeeding. Commonwealth v. Cousin, 585 Pa. 287,
301-03, 888 A.2d 710, 719-20 (2005), abrogated on different grounds, Commonwealth v. Roebuck,
32 A.3d 613 (Pa.2011 ); Corn111011wealth v. B1yant, 579 Pa. 119, 855 A.2d 726 (2004); Common-
20
wealth v. DeHart, 539 Pa. 5, 18, 650 A.2d 38, 44 (1994), abrogated on different grounds, Com-
monwealth v. Keaton, 45 A.3d 1050 (Pa.2012); Commonwealth v. Johnson, 572 Pa. 283, 307, 815
A.2d 563, 577 (2002); Commonwealth v. Lcdion, 448 Pa. 184, 189, 292 A.2d 327, 330 (1972).
Furthermore, in Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004), the United
States Supreme Court has found that counsel "was not additionally required to gain express con-
sent before conceding Nixon's guilt" and the decision to concede guilt in that case was not unrea-
sonable under the circumstances. Id. at 189. This allegation, without addressing Commonwealth
v. Cousin, supra. and its progeny is spurious.
Failing to Object to Defe11da11t's Text A1essages
F[nally, Simminger complains that counsel was ineffective in failing to object to the ad-
mission of defendant's text messages because they were not properly authenticated and were hear-
say. (Statement of Errors Complained of on Appeal, p. 2). These claims fail as well.
It should be noted that counsel filed and litigated a suppression motion contending the
extraction of the defendant's cell phone was the result of an overly broad search warrant. Counsel
further argued that the contents of the extraction should be suppressed, claiming the two detectives
searched the phone prior to the issuance of the search warrant. After a full hearing, the motion
was denied. Appellant claims that was not enough.
The serninole case concerning the authentication of text messages was Commonwealth v.
Koch, 39 A.3d 996 (Pa.Super.2011) \Vherein the court decided:
"Pennsylvania Rule of Evidence 901 provides that authenti-
cation is required prior to admission of evidence. The proponent of
the evidence must introduce sufficient evidence that the matter is
what it purports to be. Pa.R.E. 901 (a). Testimony of a witness with
personal knowledge that a matter is what it is claimed to be can be
sufficient. Pa.R.E. 901 (b )(1 ). See also Comment, citing Common-
21
wealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 ( 1980). Furthermore,
electronic writings typically show their source, so they can be au-
thenticated by contents in the same way that a communication by
postal mail can be authenticated. Circumstantial evidence may suf-
fice where the circumstances support a finding that the writing is
genuine. Jn the Interest r~l F.P., a Minor, 878 A.2d 91(Pa.Super.2005) ....
Importantly, in In The Interest of F. P., a Minor, supra, we
rejected the argument that e-mails or text messages are inherently
unreliable due to their relative anonymity and the difficulty in con-
necting them to their author. Id at 95. We reasoned that the same
uncertainties existed with written documents: "A signature can be
forged; a letter can be typed on another's typewriter; distinct letter-
head stationery can be copied or stolen." Id. Concluding that elec-
tronic communications, such as e-mail and instant messages, can be
authenticated within the framework of Pa.R.E. 901 and our case law,
we declined to create ne'vv rules governing the admissibility of such
evidence. We held that such evidence is to be evaluated on a case-
by-case basis as any other document to determine whether there has
been an adequate foundational showing of its relevance and authen-
ticity ....
[ ... E]-mails and text messages are documents and subject to
the same requirements for authenticity as non-electronic documents
generally. A document may be authenticated by direct proof, such
as the testimony of a witness who saw the author sign the document,
acknowledgment of execution by the signer, admission of authen-
ticity by an adverse party, or proof that the document or its signature
is in the purported author's handwriting. See McCormick on Evi-
dence, §§219-221 (E. Cleary 2d Ed. 1972). A document also may
be authenticated by circumstantial evidence, a practice which is
"uniformly recognized as permissible." Commonwealth v. Brooks,
352 Pa.Super. 394, 508 A.2d 316 ( 1986) (citing e.g. Commonwealth
v. Nolly, 290 Pa. 271, 138 A. 836 (1927) (letters authenticated by
contents: facts known only to sender and recipient); Commonwealth
v. Bassi, 284 Pa. 81, 130 A. 311 ( 1925) (unsigned letter authenti-
cated by defendant's nickname written on it, along with contents in-
dicating knowledge of matters familiar to both defendant-sender and
witness-recipient); and McFarland v. McFarland, 176 Pa.Super.
342, 107 A.2d 615, 616 (1954)).
As these cases illustrate, the difficulty that frequently arises
in e-mail and text message cases is establishing authorship. Often
more than one person uses an e-mail address and accounts can be
accessed without permission. In the majority of courts to have con-
sidered the question, the mere fact that an e-mail bears a particular
22
e-mail address is inadequate to authenticate the identity of the au-
thor, typically, courts demand additional evidence.
Text messages are somewhat different in that they are intrin-
sic to the cell phones in which they are stored. While e-mails and
instant messages can be sent and received from any computer or
smart phone, text messages are sent from the cellular phone bearing
the telephone number identified in the text message and received on
a phone associated with the number to which they are transmitted.
The identifying information is contained in the text message on the
cellular telephone. However, as with e-mail accounts, cellular tele-
phones are not always exclusively used by the person to whom the
phone number is assigned." Commonwealth v. Koch, 39 A.3d 996,
1002-1005 (Pa.Super.2011).
As noted in Koch, supra, authentication of text messages requires more than mere confir-
mation that the telephone number or address belong to a particular person. However, circumstan-
tial evidence may be used for authentication. Detective Graf testified that he took possession of
the phone on the day that the defendant was arrested on March 13, 2016, within hours of the mur-
der. (N .T. 8-31-2017, pp. 36-3 7, 41; 11-14-2017, pp.133-139). Detective Lucke testified that he
did the extraction on the passcode protected phone. (N.T. 8-31-2017, pp. 48-50).
Circumstantial evidence abounds that the cell phone v,ras the defendant's as well that he
sent the texts. A few hours after the killing, the phone was taken from the defendant's possession;
the text exchanges included rampant circumstantial evidence with which to confirm the defendant
as the author, and receiver, of the abounding text messages. Clearly, the vast majority of the mes-
sages were with "Stephanie", Simminger's sister's name. Numerous texts referred to mom and/or
dad, again confirming appellant was texting his sister Stephanie. Some even referred to Sim-
minger's imaginary friend, "Harry".
Hearsay is defined as "a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Pa.R.E.801(c);
Commonwealth v. Ramtahal, 613 Pa. 316, 329, 33 A.3d 602, 610 (2011). Hearsay statements are
23
generally inadmissible unless they fall under an enumerated exception. Pa.R.E. 802. "An out-of-
court statement is not hearsay when it has a purpose other than to convince the fact finder of the
truth of the statement." Commonwealth v. Busanet, 618 Pa. 1, 56, 54 A.2d 35, 68 (2012). Rule
803 of the Pennsylvania Rules of Evidence provides certain exceptions to the hearsay rule, and in
pertinent part states:
"Rule 803. Exceptions to the Rule Against Hearsay - Re-
gardless of"Whether the Declarant Is Available as a Witness
The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a witness:
(1) Present Sense Impression. A statement describing
or explaining an event or condition, made while or immediately after
the declarant perceived it ...
(2) Excited Utterance. A statement relating to a star-
tling event or condition, made while the declarant was under the
stress of excitement that it caused ...
(3) Then-Existing Mental, Emotional, or Physical
Condition. A statement of the cleclarant's then-existing state of
mind (such as motive, intent or plan) or emotional, sensory, or phys-
ical condition (such as mental feeling, pain, or bodily health), but
not including a statement of memory or belief to prove the fact re-
membered or believed unless it relates to the validity or terms of the
declarant's will."
The texts used were not inadmissible hearsay but clearly state of mind exceptions to that
rule. Tv/O clays before the killing, the defendant texted his sister that he was getting his knives
back the next day, telling her that the knives "make me feel better," and "Fighting is so barbarian"
(N .T. 11-15-2017, pp. 42-44). He also texted her that stabbing "is a rush" and that it is "satisfying".
(N .T. 11-15-2017, p. 45). Simminger told her it is "what mother-fuckers deserve if they bother
me ... Especially the black ones ... Usually v,rho it is." (N.T. 11-15-2017, p. 45). When his sister
asked him ifhe wanted to stab someone, he responded "Been there. Done that ... More than once ... I
like the knife ... Feel better with one in my pocket." (N.T. 11-15-2017, p. 46). Also, "Somebody
is out to get me. And when they try, they are going to be sorry." (N.T. 11-15-2017, p. 47). An
hour before the killing, he texted, "Somebody downtown is about to get taken, baby" (N.T. 11-15-
24
20 17, p. 55) . Simminge r 's final texts prior to the stabbing were " I' m on a mission" and "I need
money ." (N.T. 11-15 -2017 , p. 57).
Furth ermore, th e statements we re not admitted for the truth of th e matter asserted. If a
statement is not introduced for the truth of the matter asserted, it does not fa ll within the ban of
hearsay. Co111111onwealth v. Busanet, supra. The statement was introduced to show the decedent's
th e n- ex istin g state of mind - th at he was upset and angry, c learly an exception to the hearsay rule.
It is important to note that a review of the cross-examination by defense co unsel ab ly used them
for the purpose of showing th e defendant 's infirm mental state. Accordingly, counsel cannot be
fa ulted for fai ling to object.
As such, the appe ll ant ' s PCRA petition was properly denied without a hearing
BY THE COURT:
DATE : Fe bruary 3, 2022
25
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA CRIMINAL TRIAL DIVISION
Vs . 2451 EDA 2021
STE VEN SIMMINGER CP-51-CR-0003208-2016
Proof of Service
I hereby certify that I am on this day serving the foregoing Court's Opinion upon the per-
so n(s) , and in the manner indicated belovv, which service satisfies the requirements of
Pa.R.Crirn.P. 114:
Defense Attorney: Thomas A. Bergstrom, Esquire
Buchanan , Ingersoll & Rooney, P.C.
Two Liberty Place
50 South 16th Street, Suite 3200
Philadelphia, PA 19103
Type of Service: ( ) Personal (X) First C lass Mail ( ) Interoffice ( ) Other, please specify
Defense Attorney: Ashley Shapiro, Esquire
Armstrong Teasdale LLP
2005 Market Street, 29th Floor
Philadelphia, PA 19103
Type of Service: ( ) Personal (X) First Class Mail () Interoffice ( ) Other, please specify
District Attorney: Lawrence Jonathan Goode, Esquire
Chief - Appeals Division
District Attorney's Office
3 South Penn Square
Philadelphia, PA 19107-3499
Type or Servic e: ( ) Personal ( ) First C lass Mail (X) Interoffice ( ) Other, please specify
Date: February 3, 2022