Com. v. Nash, J. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMICE NASH :
:
Appellant : No. 2145 EDA 2021
Appeal from the PCRA Order Entered September 13, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0011415-2013
BEFORE: MURRAY, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED APRIL 06, 2023
Jamice Nash (Appellant) appeals pro se from the order denying his first
petition for relief filed under the Post Conviction Relief Act (PCRA).1 The trial
court convicted Appellant of attempted murder, aggravated assault, and
related crimes after he slashed his seven-year-old daughter’s neck with a
knife. We affirm.
The PCRA court explained:
On June 12, 2013, [Appellant] slit his [seven-year-old]
daughter’s throat. Prior to slitting her throat, [Appellant] had
been heard repeatedly threatening to kill the minor victim and her
mother. When police were called to the scene[, Appellant] was
holding the minor victim with his left hand and a knife in his right
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546. The PCRA court permitted Appellant’s counsel
to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)
and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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hand. [Appellant] was screaming “this is not my daughter.” After
finally yielding to police commands to drop the knife and let go of
the minor victim, she ran to the police with a gash in her neck and
informed the police that [Appellant] had cut her neck with a knife.
The bleeding was so bad, instead of waiting for an ambulance, the
police immediately drove her to Einstein Hospital. Hospital
records showed the victim received a ten-centimeter (close to four
inches) laceration to her left interior neck. Although there was no
extensive vascular damage, the minor victim was transferred to
St. Christopher’s Hospital where she [under]went surgical repair
to close the sternal mastoid muscle. She ended up spending two
days at St. Christopher’s Hospital until she was discharged to the
Department of Human Services. The minor victim testified that
[A]ppellant was taking her to school when he took out the knife
and sliced her neck. She subsequently testified that the incident
was an accident. [Appellant] also testified to the same. The minor
victim’s grandmother and mother, who were present during the
incident[,] believe [Appellant] was high at the time of the incident.
PCRA Court Opinion, 8/11/22, at 1-2. At trial, Appellant countered that he
accidentally cut the victim when, while holding a knife, he tried to fix her
uniform collar and she suddenly moved. N.T. Trial, 7/6/17, at 31-32.
Appellant’s trial was delayed as a result of his repeated changes of
counsel. On July 6, 2017, following a bench trial, the trial court convicted
Appellant attempted murder, aggravated assault, unlawful restraint (serious
bodily injury), endangering the welfare of children (EWOC) by a
parent/guardian, and possession of an instrument of crime (PIC).2 On
September 12, 2017, the trial court sentenced Appellant to 10 – 20 years in
prison, followed by 10 years’ probation for attempted murder; and concurrent
sentences of 10 – 20 years for aggravated assault; 10 years’ reporting
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2 See 18 Pa.C.S.A. §§ 901, 2702, 2902, 4304, 907.
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probation for EWOC; and five years’ reporting probation for PIC. On direct
appeal, this Court affirmed Appellant’s judgment of sentence.
Commonwealth v. Nash, 240 A.3d 119 (Pa. Super. 2020) (unpublished
memorandum). Appellant did not seek allowance of appeal with the
Pennsylvania Supreme Court.
Appellant timely filed the instant PCRA petition on December 29, 2020.
The PCRA court appointed counsel, who filed a no-merit letter and a motion
to withdraw from representation. Following appropriate notice under
Pa.R.Crim.P. 907, the PCRA court dismissed Appellant’s petition on September
13, 2021. Appellant timely appealed. Appellant and the PCRA court have
complied with Pa.R.A.P. 1925.
Appellant argues the PCRA court improperly rejected his claims of
ineffective assistance of counsel, and further asserts multiple claims of trial
court error.3 We limit our discussion to the ineffectiveness claims raised in
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3 Appellant’s pro se brief does not comport with our Rules of Appellate
Procedure. Appellant presents his issues in narrative form, together in one
section. See Pa.R.A.P. 2111 (providing the requirements for an appellate
brief); 2119(a) (providing “[t]he argument shall be divided into as many parts
as there are questions to be argued[.]”). Several issues are waived because
they contain no analysis or citation to supporting legal authority.
See Commonwealth v. Buterbaugh, 91 A.3d 1247, 1262 (Pa. Super.
2014) (en banc) (failure to conform to the Rules of Appellate Procedure results
in waiver of the underlying issue); see also Pa.R.A.P. 2119(a), (b) (require,
ng a properly developed argument for each question presented including a
discussion of and citation to authorities).
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Appellant’s brief and preserved in Appellant’s Pa.R.A.P. 1925(b) concise
statement.4
Appellant presents the following issues:
(1) Whether trial counsel rendered ineffective assistance by
failing to present the testimony of [Appellant’s] or the victim’s
treating physicians.
(2) Whether trial counsel rendered ineffective assistance by
failing to request a continuance.
(3) Whether trial counsel rendered ineffective assistance by
failing to move for a mistrial.
(4) Whether trial counsel rendered ineffective assistance by
failing to present an insanity defense.
(5) Whether the Commonwealth committed a Brady5 violation,
which was compounded by the denial of a trial continuance.
See Appellant’s Brief at 2, 4, 6-7, 9-10, 11.
In his first four issues, Appellant claims trial counsel was ineffective.
Counsel is presumed to be effective; a PCRA petitioner bears the burden of
proving otherwise. Commonwealth v. Thomas, 270 A.3d 1221, 1226 (Pa.
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4 Appellant also argues claims of trial court error and sufficiency of the
evidence which are not cognizable under the PCRA. See 42 Pa.C.S.A. § 9543
(setting forth the eligibility requirements for PCRA relief). To the extent
Appellant claims trial counsel rendered ineffective assistance by not
challenging the sufficiency of the evidence before trial, the claim lacks merit.
Appellant was convicted of the charged crimes beyond a reasonable doubt.
See, e.g., Commonwealth v. Sanchez, 82 A.3d 943, 984 (Pa. 2013)
(“[O]nce a defendant has gone to trial and has been found guilty of the crime
or crimes charged, any defect in the preliminary hearing is rendered
immaterial.”).
5 See Brady v. Maryland, 373 U.S. 83 (1963).
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Super. 2022). To establish ineffective assistance of counsel, the petitioner
must demonstrate (1) the underlying claim has arguable merit; (2) there was
no reasonable basis for counsel’s action or inaction; and (3) but for counsel’s
error, there is a “reasonable probability the result of the proceeding would
have been different.” Id. (quoting Commonwealth v. Treiber, 121 A.3d
435, 444 (Pa. 2015)). Failure to satisfy any of the three prongs is fatal to the
claim. Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “[C]ounsel
cannot be held ineffective for failing to pursue a meritless claim[.]” Thomas,
270 A.3d at 1226 (citation omitted).
Appellant first argues trial counsel rendered ineffective assistance by
not calling as a witness the victim’s treating physician or his own physician.
Appellant’s Brief at 2 (capitalization modified). Appellant asserts:
It should be even know[n] to a layman how important this doctor
or [Appellant’s] personal doctor would have been at trial. More
importantly, it should be more of an issue to this Superior Court
that counsel wasn’t even given an opportunity to contact or review
this doctor as a potential witness.
Id. (capitalization modified).
To prove arguable merit based on trial counsel’s failure to call a
witness, a PCRA petitioner must
show that the witness existed and was available; counsel was
aware of, or had a duty to know of the witness; the witness was
willing and able to appear; and the proposed testimony was
necessary in order to avoid prejudice[.]
Commonwealth v. Robinson, 278 A.3d 336, 343 (Pa. Super. 2022)
(citations omitted).
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Our review discloses Appellant failed to demonstrate the physicians
were available and willing to testify at trial, and the omission of this testimony
caused him prejudice. See id. Further, we agree with the PCRA’s court’s
assessment that Appellant’s claim lacks arguable merit and is waived:
In order to be convicted of attempted murder, it must be shown
that you took a direct step in furtherance of the crime. In the
present case[,] we have a four-inch cut on the neck, which caused
surgical repairs and a two[-]day hospital stay. Not to mention
that had the knife severed the victim’s jugular vein, which has no
protection from bone or cartilage, we could have had a much
more tragic result. There was also testimony … that [Appellant]
was threatening to kill the victim and her mother. It should also
be noted that defense counsel asked [A]ppellant twice,
during his testimony, whether there were any other
witnesses [Appellant] would like to call. In both
instances[,] [Appellant] answered no. Based on the area of
the knife wound, the immediate action of the police rushing the
victim to the hospital, the testimony of the victim’s mother and
grandmother and [A]ppellant’s own testimony, [t]his [c]ourt
believes the outcome of the proceedings would not have changed
based upon the testimony of the treating doctor[.]
PCRA Court Opinion, 8/11/22, at 4. Appellant’s first issue merits no relief.
See id.; see also 42 Pa.C.S.A. § 9543(a)(3) (providing PCRA petitioner must
plead and prove “the allegation of error has not been previously … waived.”);
Thomas, 270 A.3d at 1226; Spotz, 84 A.3d at 311.
In his second issue, Appellant argues trial counsel rendered ineffective
assistance by not requesting a continuance on the day of trial. Appellant’s
Brief at 2. Appellant asserts he met counsel for the first time that day. Id.
at 3. Appellant acknowledges he
went through a parade of ineffective counsels appointed by the
court until he finally retained counsel himself. At this time the
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court set aside our constitution in order to get this trial over with
as “[the trial court] made it clear.” No person would agree that
[Appellant] received a fair trial of counsel that he meets [sic] the
same day trial commences.
Appellant’s Brief at 3 (capitalization modified). According to Appellant,
“defense counsel had no time to review pertinent evidence in this case. It is
uncertain if counsel even knew [Appellant] had recently been declared
incompetent.” Id. at 9 (capitalization modified). Appellant concedes “trial
counsel requested a continuance because she knew that she needed to
investigate the case and plan in order to be effective[.]” Appellant’s Brief at
10 (capitalization modified, emphasis added). Additionally, we agree with the
PCRA court’s assessment:
Defense counsel (Mary Moran, Esquire,) was privately retained by
[Appellant] and entered her appearance on June 5, 2017, knowing
that the trial was to commence on June 5, 2017. This case had
been on the docket for close to four years due to defense
continuances and a parade of attorneys at [A]ppellant’s request.
[Appellant] himself retained new representation that day.
[Appellant] was of course present at the commencement of trial
and never raised an objection during the colloquy of [the trial
judge].
PCRA Court Opinion, 8/11/22, at 5-6 (emphasis added). Appellant’s second
issue merits no relief. See 42 Pa.C.S.A. § 9543(a)(3); Thomas, 270 A.3d at
1221, 1226.
In his third issue, Appellant argues counsel rendered ineffective
assistance by not moving for a mistrial. Appellant’s Brief at 11. Appellant
states:
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[O]n cross-examination[,] trial counsel asked Officer [Allen]
Carroll[,] “Prior to this occasion had you any interaction with
[Appellant] before?” Officer Carroll responded that he had.
Defense counsel followed up, “You had interaction with
[Appellant]?” Carroll responded[,] “Yes, but 110 East. It’s a
playground park over there. A couple of times I received calls for
a male ….” He was interrupted by defense counsel. The court
responded by stating[,] “You asked him.”
Id. (capitalization and punctuation modified, citation omitted). After a brief
recess, and with the agreement of counsel, the question was withdrawn and
the answer stricken. Id. Appellant argues this evidence nevertheless
prejudiced the trial court, which sat as fact finder. See id. We disagree.
“A judge, as factfinder, is presumed to disregard inadmissible evidence
and consider only competent evidence.” Commonwealth v. Davis, 421 A.2d
179, 183 n.6 (Pa. 1980) (citations omitted); see also Commonwealth v.
McFadden, 156 A.3d 299, 309 (Pa. Super. 2017) (reiterating that a
trial court acting as fact finder “is presumed to know the law, ignore
prejudicial statements, and disregard inadmissible evidence” (citation
omitted)). Appellant fails to demonstrate that the trial court was unable to
disregard the withdrawn question and stricken answer. Appellant’s third issue
does not merit relief.
In his fourth issue, Appellant argues counsel rendered ineffective
assistance by not presenting an insanity defense. Appellant’s Brief at 4.
Appellant claims his counsel had no opportunity to raise this defense. Id.Appellant recognizes the trial court
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was aware of [Appellant’s] prior diagnosis of PTSD and the strong
medications he was prescribed. Evidence certainly could have
supported a temporary insanity claim, that is[,] a diminished
capa[c]ity induced by medication and mental illness. Each doctor
who examined [Appellant] stated he was not competent. The
court[-]appointed psychiatrist concluded that [Appellant] was not
competent….
Id. (capitalization modified). Appellant asserts that as an infant, an uncle
threw him against a tree, causing a traumatic brain injury, and that he is
taking the medications Zyprexa and Zoloft. Id. Appellant asserts he did not
understand the legal proceedings and did not cooperate with his counsel. Id.Section 315 of the Crimes Code provides that the “mental soundness of
an actor engaged in conduct charged to constitute an offense shall only be a
defense” when the defendant was legally insane. 18 Pa.C.S.A. § 315(a). To
prevail on an insanity defense, the defendant
must prove by a preponderance of the evidence that, at the time
he committed the offense, due to a defect of reason or disease of
mind, he either did not know the nature and quality of the act or
did not know that the act was wrong. 18 Pa.C.S. § 315;
Commonwealth v. Heidnik, 526 Pa. 458, 587 A.2d 687, 690-91
(Pa. 1991).
A defense of insanity acknowledges commission of the act by the
defendant, while maintaining the absence of legal
culpability. Commonwealth v. Hughes, 581 Pa. 274, 865 A.2d
761, 788 (Pa. 2004); Commonwealth v. Cross, 535 Pa. 38, 634
A.2d 173, 175 (Pa. 1993). Where a defendant has testified at trial
and has denied committing a crime, this Court has declined to
deem counsel ineffective for failing to present a defense that
would have been in conflict with his client’s own
testimony. Hughes, 865 A.2d at 788; Commonwealth v.
Paolello, 542 Pa. 47, 665 A.2d 439, 455 (Pa. 1995).
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Commonwealth v. Smith, 17 A.3d 873, 901 (Pa. 2011). To be declared
incompetent to stand trial, an appellant must establish he was either unable
to understand the nature of the proceedings against him or to participate in
his own defense. Id. at 899-900.
Here, Appellant participated at trial and testified in his defense.
Appellant testified that the morning of June 12, 2013, he drove the victim to
his mother’s home before school. N.T., 7/6/17, at 29. After the victim dressed
for school, she went to the kitchen. Id. at 30. Appellant explained that when
he entered the kitchen, he retrieved from the table a sheetrock knife he
wanted to use for “a basement job that morning[.]” Id. at 31. Appellant
stated:
[T]he rain had fallen the day before and messed up somebody’s
basement, and I already had cut some of the Sheetrock out. So
I said, all right, I will bring the knife over there to finish up the
job.
When I am going down the steps – I had … capri pants on,
and the pockets was short. I had the knife in my pockets. So the
knife fell out [of] my pocket when I’m going down the stairs. So
I put it back in my pocket. It fell out again.
My car was right out at the front of the house. So I said, all
right, being that my car was right out in front of the house, I will
just hold the knife in my hand and bring it to the car.
I was walking in front of [the victim]. While I am walking in
front of her, I turn around to see [the victim] behind me. When I
said, “[] come on,” I observed her uniform collar – like she had on
a uniform collar like this one. It was tucked in like this. And, so,
I said “Come on, …. Let me fix you.” She said, “No, Dad,” and
moved away. When she moved away, that’s the only time I think
that the incident could have occurred when she moved and said,
“No. I want to do it.” So I turned back around. When [sic] I
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heard my mom say … something like, “Nash.” When I turned
around, I was like all in shock. Like, what’s going on? Then I
seen a little spec on her. That’s when I got, like, in shock, like,
what’s going on? That’s when I dropped the knife right there and
was just staring at my daughter. I couldn’t come to understand,
like, what is going on.
At the same time, I seen all this rush, like the cops and
everybody started coming in. The whole time, I am just, like,
what’s going on? I was so quiet. I couldn’t say nothing, cause I
was in a state of shock. I am, like, what’s going on. What is really
going on with this thing.
Id. at 31-32.
Our review discloses Appellant was competent at trial and participated
in his defense. Specifically, Appellant testified on his own behalf, supporting
his trial strategy that the incident was an accident. See id. As the PCRA court
explained:
Appellant’s own testimony indicated that he was not experiencing
an episode of mental illness. He even testified that he was calm
and not upset. It was the strategy of [A]ppellant and counsel to
claim that the incident was an accident. … [B]ased on the
testimony of the victim, who stated she thought it was an
accident[,] and [Appellant’s] own testimony, the strategy was to
prove it was an accident ….
PCRA Court Opinion, 8/11/22, at 7. Appellant’s claim of ineffectiveness, based
on counsel’s failure to present an insanity defense or challenge his
competency, merits no relief. See Smith, 17 A.3d at 901 (declining to find
counsel ineffective for failing to present a defense in conflict with his client’s
testimony).
In his fifth and final issue, Appellant asserts a Brady violation by the
Commonwealth. Appellant argues:
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In this case, the prosecution cannot escape the fact that the
assigned investigator in this case, Detective Justin Montgomery,
has numerous claims of misconduct lodge[d] against him.
According to an article that was published nine months prior to []
trial, Detective Justin Montgomery outlines misconduct …
regarding his investigation of an alleged indecent assault
complaint. … This detective also testified at [Appellant’s] trial,
even stating himself that there were discrepancies with the filing
of this incident. See also [N.]T. VOL 3, 6/16/17[, at] 32-34
demonstrating that someone forged a signature a “log” in this
case.
Appellant’s Brief at 6. Appellant claims his counsel had no time to look for
this information. Id. Appellant posits counsel’s advice on this issue “couldn’t
be construed as competent because counsel didn’t even have all the requisite
information of this case.” Id.
In Brady, the United States Supreme Court held that “suppression by
the prosecution of favorable evidence to an accused upon request violates due
process where the evidence is material either to guilt or to punishment ….”
Brady, 373 U.S. at 87. Brady’s mandate is not limited to pure exculpatory
evidence; impeachment evidence also falls within Brady’s parameters and
must be disclosed by prosecutors. U.S. v. Bagley, 473 U.S. 667, 677 (1985).
To establish a Brady violation, a defendant must show:
(1) the evidence was suppressed by the Commonwealth, either
willfully or inadvertently; (2) the evidence was favorable to the
defendant; and (3) the evidence was material, in that its omission
resulted in prejudice to the defendant.
Commonwealth v. Haskins, 60 A.3d 538, 545 (Pa. Super. 2012). The
burden rests with the defendant to prove by reference to the record that
evidence was withheld or suppressed. Id. Further, the evidence must have
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been in the exclusive control of the prosecution. Id. No Brady violation
occurs where the defendant knew or with reasonable diligence could have
discovered the evidence, or where the evidence was available to the defense
from a non-governmental source. Id.Appellant concedes in his brief that this evidence regarding Detective
Montgomery was in “an article that was published nine months prior to [his]
trial[.]” Appellant’s Brief at 6. Because the evidence was available from a
non-governmental source, and discoverable with reasonable diligence,
Appellant’s Brady claim fails. See Haskins, supra.Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2023
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