Com. v. Brown, W.

J-S05017-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

WILLIAM BROWN, :

:

Appellant : No. 817 WDA 2014

Appeal from the PCRA Order Entered April 7, 2014,

In the Court of Common Pleas of Indiana County,

Criminal Division, at No. CP-32-CR-000451-2010.

BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 10, 2015

Appellant, William Brown, appeals from the order entered on April 7,

2014, that denied his petition for relief filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

The PCRA court provided the following factual background:

This matter came before the Court on [Appellant] William

Brown’s Petition for Post-Conviction Collateral Relief pursuant to

the Post-Conviction Collateral Relief Act (PCRA). A hearing on

the Petition was held December 11, 2013. [Appellant’s]

conviction stems from events occurring on February 28, 2010,

when [Appellant] caused the death of his cellmate, Jayson

Stewart, while both were incarcerated in the Restricted Housing

Unit at SCI Pine Grove. Following a three-day jury trial ending on

December 9, 2010, [Appellant] was found guilty of Murder of the

First Degree and Aggravated Assault. He is currently serving a

life sentence without parole at SCI Forest, in Marienville,

Pennsylvania. [Appellant] was represented at trial by court-

appointed counsel, Fred D. Hummel, Jr., and [Appellant] alleges

that he was provided with ineffective assistance of counsel.

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PCRA Court Opinion, 4/8/14, at 1. The PCRA court denied Appellant’s

petition for relief.

Following the denial of his PCRA petition, Appellant filed this timely

appeal where he raises the following issues for this Court’s consideration:

I. Whether trial counsel was ineffective in his representation

of the Appellant in that he failed to:

(a) fully utilize the volume of the psychiatric and medical

evidence at his disposal to support the Appellant’s defense

of diminished capacity;

(b) fully utilize the evidence of the solitary confinement

and “snitching” that weighed heavily on his mental health?

II. Whether trial counsel was ineffective for failing to utilize

the prior history of mental illness along with the

examination of Dr. Martone to show that the Appellant did

not knowingly or intelligently waive His Miranda[1] rights?

III. Whether trial counsel was ineffective for not ensuring that

the Appellant understood the significance of cooperating

with the Commonwealth’s psychiatrist?

Appellant’s Brief at 4 (full capitalization omitted).

Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be

1

Miranda v. Arizona, 384 U.S. 436 (1966).

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disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

When considering an allegation of ineffective assistance of counsel,

counsel is presumed to have provided effective representation unless the

PCRA petitioner pleads and proves that: (1) the underlying claim is of

arguable merit; (2) counsel had no reasonable basis for his or her conduct;

and (3) Appellant was prejudiced by counsel’s action or omission.

Commonwealth v. Pierce, 527 A.2d 973, 975-976 (Pa. 1987). “In order

to meet the prejudice prong of the ineffectiveness standard, a defendant

must show that there is a ‘reasonable probability that but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.’” Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012).

A claim of ineffective assistance of counsel will fail if the petitioner does not

meet any of the three prongs. Commonwealth v. Williams, 863 A.2d

505, 513 (Pa. 2004). “The burden of proving ineffectiveness rests with

Appellant.” Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007).

Appellant first avers that counsel was ineffective at trial for failing to

utilize psychiatric and medical evidence from his prior involvement with

mental health professionals to support Appellant’s defense of diminished

capacity. We disagree with Appellant’s assertion.

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At the outset, we note that Appellant concedes that trial counsel did

not fail to present evidence of Appellant’s past psychiatric issues.

Appellant’s Brief at 12-13. Rather, Appellant asserts that trial counsel

should have provided even more evidence of prior treatment for mental

illness. Id. Appellant goes on to claim that:

A principle of trial practice coming from the erudite and

entertaining Cornell University Law School Professor Irving

Younger provides that if a jury hears a piece of evidence once

they [sic] will probably not remember it, if they [sic] hear that

evidence twice then it may enter into the jury’s discussion, but if

they [sic] hear a third time, then they [sic] will probably accept

and utilize that evidence in reaching their [sic] verdict.

Appellant’s Brief at 13-14. We point out that there is no rule requiring

counsel to present evidence three times. Appellant’s displeasure with the

manner in which trial counsel presented a defense, by itself, does not

amount to ineffectiveness, and the failure to be repetitive satisfies no

ineffective assistance of counsel standard of which this Court is aware. The

fact that Appellant now wishes trial counsel had provided repetitive evidence

and points to other medical records that “could have” been presented,

provides no basis for relief. These bald assertions fail to establish a

reasonable probability that, but for these alleged deficiencies, the result of

the proceeding would have been different. Reed, 42 A.3d at 319.

Moreover, trial counsel did provide evidence of Appellant’s psychiatric

issues and treatment, and the PCRA court concluded that there was a

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reasonable basis for counsel to refrain from pursuing the details of

Appellant’s prior treatment any further than he did. Trial counsel’s rationale

was that the past psychiatric treatment was as a result of prior crimes, some

of which were violent. The PCRA court addressed this issue as follows:

[Appellant] argues that counsel failed to interview or call

expert witnesses who previously treated him while he was

confined prior to this matter. Counsel did call one expert

witness, Dr. Martone, who testified on [Appellant’s] behalf that

in her opinion he could not form specific intent due to his mental

disabilities. The Commonwealth’s expert, Dr. Blumberg, offered

testimony contradicting this finding and [Appellant] now claims

that had other experts been called to support Dr. Martone’s

conclusions it would have given them more weight. By failing to

provide additional witnesses to bolster Dr. Martone’s testimony,

[Appellant] alleges counsel was ineffective. He also alleges that

counsel did not obtain his complete medical records, particularly

his Department of Corrections records from 2009-2010. Counsel

testified that Dr. Martone conducted tests with [Appellant] and

discussed his past mental health history, beginning when he was

first recognized as having difficulties at age eleven. [Appellant]

also testified that he was honest with Dr. Martone about his

history, including various confinements at a boot camp, mental

health facilities, and state correctional institutions. Counsel

maintains that medical records were obtained from 2001 to the

date of the trial and because the records were available, it was

not necessary for witnesses from any corresponding treatment

centers to testify. Furthermore based on the fact that the

majority of [Appellant’s] treatment records were connected with

criminal activities, including firing a gun at a police officer,

counsel did not believe it would be advantageous to open certain

records. Counsel’s choice not to introduce potentially damaging

information contained in [Appellant’s] records was a strategic,

tactical decision in presenting his defense. This does not render

counsel ineffective; therefore, this claim is without merit.

PCRA Court Opinion 4/8/14, at 3-4. We agree with the PCRA court. Trial

counsel did present evidence of Appellant’s mental health issues and

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presented evidence from an expert Dr. Martone, on these matters. The fact

that counsel did not present evidence that could potentially open the door to

details of Appellant’s criminal past was a strategic decision, and we discern

no error in the PCRA court’s decision on this issue.

In the second part of Appellant’s first issue, Appellant attempts to

raise claims concerning the effect solitary confinement had on him and the

way Appellant was treated by other inmates while incarcerated at SCI Pine

Grove. Appellant now contends that he was taunted and shunned as a

“snitch” because he had informed on an individual in an unrelated case and

that individual ended up being housed at SCI Pine Grove. Appellant’s Brief

at 24.

Appellant argues that trial counsel failed to provide enough evidence

regarding the impact solitary confinement had on him, the way it may have

impacted the intent to kill, and the resulting diminished capacity.

Appellant’s Brief at 24. Appellant goes on to cite to five articles allegedly

espousing the deleterious effects that solitary confinement has on prisoners.

Id. However, Appellant has failed to establish the existence of a witness

who was prepared and willing to testify as to how Appellant was allegedly

mistreated by other inmates, the accuracy and application of the

aforementioned articles, the manner and degree to which Appellant’s mental

state was impacted, or how the absence of this testimony denied Appellant a

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fair trial. See Commonwealth v. Walls, 993 A.2d 289, 302 (Pa. Super.

2010) (stating that in order to prevail on a claim of ineffectiveness for failing

to call an expert witness, the petitioner must prove that: (1) the witness

existed; (2) the witness was available to testify for the defense; (3) counsel

knew or should have known of the existence of the witness; (4) the witness

was willing to testify for the defense; and (5) the absence of the witness’s

testimony was so prejudicial as to have denied him a fair trial). Because

Appellant presented no evidence that satisfies these requirements, we

discern no error in the PCRA court denying relief on this claim.

Next, Appellant avers that counsel was ineffective for not presenting

evidence concerning the way Appellant was treated by other inmates while

incarcerated at SCI Pine Grove and the effect that being labeled a snitch had

on him. However, upon review of the record, we note that this specific issue

was not raised in the PCRA court or in his Pa.R.A.P. 1925(b) statement of

errors complained of on appeal. Accordingly, this issue is waived. Pa.R.A.P.

1925(b)(4)(vii).2

2

As set forth above, the issue concerning counsel’s alleged failure to present

evidence that Appellant’s mental state was diminished as a result of a co-

defendant being housed at the same SCI and the fact that Appellant endured

taunts and “grinding” as a result of being labeled a “snitch” is waived as it

was not properly preserved for appeal. We note, however, that on August

21, 2014, this Court received a motion for remand filed by Appellant’s

counsel. In that motion, Appellant sought to have our Court remand this

case to the PCRA court for a hearing on this additional claim of

ineffectiveness because it had not been properly raised on appeal. In an

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Appellant next claims that trial counsel was ineffective for failing to

show that, due to his mental illness, Appellant did not knowingly and

intelligently waive his Miranda rights. Appellant claims that his statement

to Pennsylvania State Police Officers was coerced due to his mental illness,

his lack of intelligence, and an allegation that Appellant’s clothing was

withheld by prison officials until he made a statement regarding the murder

of his cellmate. Appellant’s Brief at 26-27.

In deciding whether a defendant has validly waived his Miranda

rights, the trial court must determine: 1) whether the waiver was voluntary,

in the sense that the defendant’s choice was not the result of governmental

pressure; and 2) whether the waiver was knowingly and intelligently made,

in the sense that the decision was reached with full comprehension of both

the nature of the right being waived and the consequences of that choice.

Commonwealth v. Kunkle, 79 A.3d 1173, 1180 (Pa. Super. 2013)

(citation omitted). Additionally, we point out that:

order filed on August 28, 2014, this Court denied Appellant’s motion for

remand without prejudice to Appellant’s ability to again make this motion

before this panel. However, the record reflects that Appellant did not renew

the motion before this panel. Nevertheless, had Appellant renewed the

motion, we would have concluded that no relief was warranted. Because

counsel raised PCRA counsel’s alleged ineffectiveness for the first time on

appeal from the order denying PCRA relief, it is unreviewable at this

juncture. See Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (stating that “claims of PCRA counsel’s ineffectiveness may not be

raised for the first time on appeal.”) (citing, inter alios, Commonwealth v.

Jette, 23 A.3d 1032, 1044 n. 14 (Pa. 2011)).

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Under Miranda, probative evidence, such as a confession, may

be suppressed to punish and deter police misconduct, and

thereby enforce constitutional protections. Thus, in the

suppression realm, the focus is upon police conduct and whether

a knowing, intelligent, and voluntary waiver was effected based

on a totality of the circumstances, which may include

consideration of a defendant’s mental age and condition, low IQ,

limited education, and general condition. When a defendant

alleges that his waiver or confession was involuntary, the

question is not whether the defendant would have confessed

without interrogation, but whether the interrogation was so

manipulative or coercive that it deprived the defendant of his

ability to make a free and unconstrained decision to confess.

Commonwealth v. Sepulveda, 55 A.3d 1108, 1136-1137 (Pa. 2012)

(internal citations and quotation marks omitted). However, there is no per

se rule that there can be no voluntary waiver when a person is mentally ill.

See Commonwealth v. Mitchell, ___ A.3d ___, 2014 WL 7150724, 677

CAP (Pa. 2014) (stating that defendants with proven psychological defects

are capable of waiving their constitutional rights and giving voluntary

confessions). Finally, a defendant’s prior experience with Miranda warnings

may be considered when determining whether the waiver of those rights was

knowing and voluntary. Commonwealth v. Hughes, 555 A.2d 1264, 1275

(Pa. 1989).

Here, the PCRA court addressed this issue as follows:

By his own testimony at the pre-trial suppression hearing,

[Appellant] indicated that he understood his Miranda rights and

admitted freely speaking to the troopers. He also testified that

he was placed in an infirmary cell, but was given a smock to

wear and that he was unsure if he took his medications. There is

no indication that the interrogating troopers coerced him or that

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the environment in which he was held would pressure him into

making a statement. Furthermore, [Appellant] has an extensive

history in the criminal justice system and is familiar with the

nature and meaning of Miranda rights, which he admitted. For

these reasons, [Appellant’s] statements cannot be considered to

be involuntary. Counsel is not obligated to raise arguments that

are not meritorious;[3] therefore there was no ineffectiveness of

counsel for failing to make the arguments that [Appellant] now

advances.

PCRA Court Opinion, 4/8/14, at 7.

We agree with the PCRA court. The record supports the conclusion

that Appellant knowingly and intelligently waived his Miranda rights. Upon

review, we discern no error in the PCRA court’s decision on this issue.

Finally, Appellant claims that trial counsel was ineffective for not

ensuring that he understood the significance of cooperating with the

Commonwealth’s psychiatrist. We conclude that no relief is due.

It is well settled that issues that are not developed or supported with

appropriate argument will be deemed waived. Commonwealth v. Garcia,

661 A.2d 1388, 1395-1396 (Pa. Super. 1995); Pa.R.A.P. 2119(b), (c) and

(d). Because Appellant has failed to support this issue with proper

argument, we deem it to be waived. Id.

3

See Commonwealth v. Destephano, 87 A.3d 361, 368 (Pa. Super.

2014) (reiterating the well-settled principle that counsel may not be deemed

ineffective for failing to pursue a meritless claim).

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Assuming, for the sake of argument, that we were to address the

merits of this issue, we would affirm based on the rationale enumerated by

the PCRA court. The PCRA court addressed this issue as follows:

[Appellant] next argues that counsel was ineffective for

failing to advise him to cooperate with Dr. Blumberg, the

Commonwealth’s expert in psychiatry. When Dr. Blumberg

interviewed [Appellant], he attempted to have him complete

tests, one of which was the Miller Forensic Assessment

Symptoms Test (MFAST), which is used to determine if someone

is malingering or faking symptoms. [Appellant] only partially

completed the MFAST and then refused to continue with the

remainder because he became frustrated with how lengthy it

was and wanted to be finished. Based on his observations, Dr.

Blumberg found that [Appellant] had borderline intellectual

capabilities, but believed that he was not suffering from

diminished capacity at the time of the murder. According to

[Appellant], counsel did tell him Dr. Blumberg would be talking

to him and administering tests, but did not specifically advise

him that failure to cooperate could be used against him at trial.

Counsel maintains that he did address the importance of the

tests and the need for [Appellant] to do as Dr. Blumberg asked.

Counsel testified that he was not concerned about [Appellant’s]

possible refusal to cooperate because he was cooperative during

his previous evaluation with Dr. Martone. [Appellant] has not

offered any proof to support his claim that counsel did not inform

him of the importance of completing Dr. Blumberg’s tests.

Ineffectiveness of counsel cannot be shown merely by a “bald

allegation” without further proof that counsel failed to inform a

defendant of certain information. Commonwealth v. Alderman,

811 A.2d 592, 596 (Pa.Super. 2002). (No ineffectiveness of

counsel with allegation that defendant was not informed of his

right to testify). Additionally, even if this Court were to accept

[Appellant’s] version of events, he has presented no evidence

indicating a reasonable probability that the proceedings would

have had a different outcome had counsel given more specific

advice regarding the testing.

PCRA Court Opinion, 4/8/14, 5-6.

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For the reasons set forth above, we discern no error of law in the PCRA

court’s decision. Accordingly, we affirm the order denying Appellant’s PCRA

petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/10/2015

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