Com. v. Chance, W. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WESLEY EDWARD CHANCE,
Appellant No. 1618 MDA 2015
Appeal from the Order Entered August 21, 2015
In the Court of Common Pleas of Huntingdon County
Criminal Division at No(s): CP-31-CR-0000251-2009
BEFORE: GANTMAN, P.J., BOWES, AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED MARCH 04, 2016
Wesley Edward Chance appeals from the August 21, 2015 order
denying him PCRA relief. We affirm.
On March 5, 2010, a jury convicted Appellant of aggravated
harassment by a prisoner, which makes it a crime for an inmate, inter alia,
to spit on a prison guard. The underlying facts follow:
The event giving rise to the prosecution occurred March 18,
2009, at the State Correctional Institution at Smithfield (SCIS)
which is located in Huntingdon County, Pennsylvania. At or
around 2:00 a.m., [Appellant] was moved from his cell in the
Restricted Housing Unit (RHU) to the Psychiatric Observation
Area (POA) since he had been observed taking crushed
medication. In this regard, [Appellant] told an officer that he
took twenty-five (25) pills. Protocol at SCIS requires that moves
be filmed as a consequence of which Corrections Officer Randy
Wertz was present with a hand held camera and filmed the move
from beginning to end. The move was uneventful until the end
when [Appellant] was ordered to remove his jumpsuit. At this
point, [Appellant] became argumentative and spit at the officers
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involved in the move. Videographer Wertz testified that the spit
“[H]it me in my right eye, the right side of my face, and on the
right side of this area right in here, the chest/shoulder area
(Indicating).” (N.T., at p. 51.) Wertz was seen by medical
personnel at SCIS and at the J.C. Blair Hospital, Huntingdon,
Pennsylvania. The Court and jury were shown the video of the
incident.
Trial Court Opinion, 9/9/10, at 1-2. Following his conviction, Appellant
received a sentence of two to seven years imprisonment. On appeal, we
affirmed. Commonwealth v. Chance, 37 A.3d 1226 (Pa.Super. 2011)
(unpublished memorandum), and our Supreme Court denied further review
on April 4, 2012. Commonwealth v. Chance, 42 A.3d 290 (Pa. 2012).
Appellant filed a timely PCRA petition on May 23, 2012. Therein,
Appellant claimed that trial counsel was ineffective for “1. failing to
investigate, discover & present a diminished capacity defense[;] 2. failing to
investigate & litigate [Appellant’s] competency to stand trial[; and] 3. failing
to litigate prosecutorial misconduct[.]” PCRA Petition, 5/23/12, at 3.
Counsel was appointed.
An evidentiary hearing was held on July 11, 2014. At that time,
Appellant first maintained that he was incompetent to stand trial and
requested that he be accorded a competency hearing. The PCRA judge, who
had presided over Appellant’s trial, noted that trial counsel had requested a
competency hearing. It outlined its reasons for denying that hearing, which
were that the Department of Corrections had produced Appellant’s mental
health records. Those records indicated that Appellant was “examined
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between February 3 and February 25 of 2010. And the bottom line is they
concluded that there was nothing wrong.” N.T. Hearing, 7/11/14, at 14. At
the hearing, Appellant also denied having any memory of the incident and
reported that he had ingested numerous medications and was suicidal when
he spat at the prison guards.
Appellant’s trial counsel, David G. Smith, Esquire, testified that
Appellant never told him that he did not have a recollection of the incident.
He indicated that his defense focused on the fact that Appellant was very
compliant with being transported and harbored no ill-will toward the prison
guards. Mr. Smith acknowledged that Appellant asked him about presenting
a diminished capacity defense but testified that he did not consider
presenting it due to its limited applicability.
On February 13, 2015, the Commonwealth asked the court to order
the Pennsylvania Department of Corrections to produce Appellant’s medical
records. On February 19, 2015, that order was granted. On June 30, 2015,
Appellant filed a motion indicating that his “institutional medical and mental
health records were recently delivered to the Court, to the Commonwealth of
Pennsylvania” and to his counsel. Motion to Consider Petitioner’s Medical
and Mental Health Records, 6/30/15, at ¶ 1. Appellant asked the court to
“enter such interim order as will allow [Appellant] to direct the court to those
particular records which [Appellant] considers relevant to [Appellant’s] claim
of diminished capacity on or around March 18, 2009, the date of the offense,
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and further to allow [Appellant] to offer such records as evidence in this
proceeding.” Id. at 3. Appellant specifically declined to make the records
part of the certified record herein due to their private nature. Id. at ¶ 4.
Simultaneously with this petition, Appellant filed his brief in support of
PCRA relief. Therein, Appellant averred that trial counsel was ineffective for
failing to raise the affirmative defense of diminished capacity. Petitioner’s
Brief Memorandum in Support of PCRA Relief, 6/30/15, at 2 (“In the instant
case, trial counsel was ineffective by failing to assert a diminished capacity
defense. Trial counsel, through medical and mental health records coupled
with expert testimony, could have shown [Appellant] lacked the mental
capacity to form the specific intent required for guilt[.]”).
On August 21, 2015, the court denied PCRA relief, concluding: 1) the
diminished capacity defense was not available to the offense in question; 2)
Appellant also failed to establish that he suffered from a diminished capacity
by neglecting to present expert testimony on that subject at the PCRA
hearing; and 3) trial counsel was not ineffective for failing to explore
Appellant’s competency to stand trial since counsel did undertake that
action. The PCRA court did not resolve the outstanding petition for
consideration of Appellant’s mental health records. This appeal followed the
denial of PCRA relief.
In his court-ordered Pa.R.A.P. 1925(b) statement, Appellant averred
that the PCRA court “erred when it failed to grant the Petition to Consider
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Petitioner’s Medical Records Filed on June 30, 2015[.]” Concise Statement of
the Errors Complained of on Appeal, 10/24/15, at 1. Appellant continued
that this error foreclosed him from establishing that “trial counsel was
ineffective by failing to assert a diminished capacity defense,” and that “trial
counsel, through medical and mental health records coupled with expert
testimony, could have shown [Appellant] lacked the mental capacity to form
the specific intent required for guilt.” Id. at 1-2.
On appeal, Appellant raises the single issue: “Did the PCRA court err
when it failed to grant the Petition to Consider Petitioner’s Medical and
Mental Health Records filed on June 30, 2015, by Appellant Wesley Edward
Chance[?]” Appellant’s brief at 4. Specifically, Appellant avers that those
records would have proven that trial counsel was ineffective for failing to
prove that he did not possess the intent element of the crime. Conceding
that the “defense of diminished capacity is an extremely limited defense,” he
also avers that the records in question would have proven that trial counsel
should have explored “insanity as a defense to a charged offense.”
Appellant’s brief at 12 (citing 18 Pa.C.S. § 315 and Commonwealth v.
Rabald, 951 A.2d 329 (Pa. 2008) (discussing defense of guilty but mentally
ill)).
Initially, we observe that, “Our standard of review of an order granting
or denying relief under the PCRA requires us to determine whether the
decision of the PCRA court is supported by the evidence of record and is free
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of legal error. The PCRA court's findings will not be disturbed unless there is
no support for the findings in the certified record.” Commonwealth v.
Melendez-Negron, 123 A.3d 1087, 1090 (Pa.Super. 2015) (citation
omitted). Appellant avers that trial counsel rendered ineffective assistance,
which would have been established had the PCRA court reviewed his medical
records. “To plead and prove ineffective assistance of counsel a petitioner
must establish: (1) that the underlying issue has arguable merit; (2)
counsel's actions lacked an objective reasonable basis; and (3) actual
prejudice resulted from counsel's act or failure to act.” Commonwealth v.
Stewart, 84 A.3d 701, 706 (Pa.Super. 2013) (en banc). The failure to meet
any of these aspects of the ineffectiveness test results in the claim failing.
Id.Appellant’s averments relate to trial counsel’s failure to refute the
mens rea element of aggravated harassment by a prisoner. That crime is
defined as follows:
A person who is confined in or committed to any local or
county detention facility, jail or prison or any State penal or
correctional institution or other State penal or correctional facility
located in this Commonwealth commits a felony of the third
degree if he, while so confined or committed or while undergoing
transportation to or from such an institution or facility in or to
which he was confined or committed, intentionally or
knowingly causes or attempts to cause another to come into
contact with blood, seminal fluid, saliva, urine or feces by
throwing, tossing, spitting or expelling such fluid or material.
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18 Pa.C.S. § 2703.1. Thus, aggravated harassment by a prisoner requires
specific intent.
Appellant first assails trial counsel’s failure to pursue a diminished
capacity defense, arguing that the mental health records that the trial court
purportedly refused to consider would have established such ineffectiveness.
The diminished capacity defense is available to a defendant who “attempts
to prove that he was incapable of forming the specific intent to kill; if the
defendant is successful, first-degree murder is mitigated to third degree.”
Commonwealth v. Sasse, 921 A.2d 1229, 1236 (Pa.Super. 2007). In the
context of a mental disorder, the disorder in question must affect “the
cognitive functions of deliberation and premeditation necessary to formulate
a specific intent[.]” Id.1 The defense of diminished capacity is not available
for any crimes other than first-degree murder. As we outlined in
Commonwealth v. Russell, 938 A.2d 1082, 1092 (Pa.Super. 2007)
(citations omitted), “The ‘diminished capacity’ defense is available only as a
defense to first-degree murder and not to second-degree murder, which was
the offense charged against Appellant. Likewise, it is not available as a
defense for other ‘specific intent’ non-homicide offenses.” Accord
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1
The diminished capacity defense is also available if the defendant was
intoxicated to such an extent that he was unable to formulate the specific
intent to kill. Commonwealth v. Hutchinson, 25 A.3d 277, 312 (Pa. 2011)
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Commonwealth v. Swartz, 484 A.2d 793, 795 (Pa.Super. 1984) (defense
of diminished capacity cannot be proffered to defend robbery charge, even
though specific intent is an element of the crime, as the defense is available
only with respect to first-degree murder). Thus, regardless of the contents
of mental health records that Appellant sought to have the PCRA court
consider, the defense in question could not be made at Appellant’s trial, and
Appellant cannot establish that trial counsel was ineffective for failing to
pursue it.
As noted, Appellant also claims that the PCRA court should have
considered his mental health records since they would have proven that trial
counsel was ineffective for failing to pursue an insanity defense under 18
Pa.C.S. § 315.2 He also cites to Rabold, supra, which discusses the
defense of guilty but mentally ill embodied in 18 Pa.C.S. § 314.3
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2
That provision outlines the insanity defense, which is considerably more
onerous to establish than a diminished capacity defense. Specifically,
(a) General rule.--The mental soundness of an actor engaged
in conduct charged to constitute an offense shall only be a
defense to the charged offense when the actor proves by a
preponderance of evidence that the actor was legally insane at
the time of the commission of the offense.
(b) Definition.--For purposes of this section, the phrase “legally
insane” means that, at the time of the commission of the
offense, the actor was laboring under such a defect of reason,
from disease of the mind, as not to know the nature and quality
(Footnote Continued Next Page)
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This averment is waived on various grounds. First, Appellant never,
during the PCRA proceedings, challenged trial court’s stewardship for failing
to present either an insanity defense or a position that Appellant was guilty
but mentally ill. His PCRA petition mentions only the diminished capacity
defense. At the PCRA hearing, Appellant delved into the diminished capacity
defense but not insanity or guilty but mentally ill. Finally, the brief that
Appellant filed in support of PCRA relief failed to raise the possibility of an
insanity or guilty but mentally ill challenge to the offense in question. These
averments cannot be considered on appeal because they were not raised
during the trial court proceedings. Commonwealth v. Little, 903 A.2d
1269, 1272 (Pa.Super. 2006); Pa.R.A.P. 302(a) (“Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”).
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(Footnote Continued)
of the act he was doing or, if the actor did know the quality of
the act, that he did not know that what he was doing was wrong.
18 Pa.C.S. § 315.
3
That statutes provides:
A person who timely offers a defense of insanity in
accordance with the Rules of Criminal Procedure may be found
“guilty but mentally ill” at trial if the trier of facts finds, beyond a
reasonable doubt, that the person is guilty of an offense, was
mentally ill at the time of the commission of the offense and was
not legally insane at the time of the commission of the offense.
18 Pa.C.S. § 314(a).
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Likewise, the issue of whether the mental health records would have
established that trial counsel should have pursued insanity or guilty but
mentally ill defenses was not included in Appellant’s Pa.R.A.P. 1925(b)
statement. Therein, the sole averment was that the trial court should have
considered mental health records that would have proven that trial counsel
was ineffective for failing to pursue a diminished capacity defense. “[A]ny
issues not raised in a Rule 1925(b) statement are waived.”
Commonwealth v. Butler, 812 A.2d 631, 634 (Pa. 2002); see also Kelley
v. Mueller, 912 A.2d 202, 203-04 (Pa. 2006) (re-affirming that issues that
are not presented in a Pa.R.A.P. 1925(b) statement are waived).
An additional problem with Appellant’s position on appeal is that it is
entirely dependent upon whether his mental health records established the
availability of any of the three defenses mentioned in his brief. Appellant
deliberately failed to include his mental health records in the certified record,
even though they could have been filed under seal. In light of this omission,
we are utterly unable to review whether the PCRA court erred in neglecting
to consider the records in that they established Appellant’s entitlement to
PCRA relief. “It is a well settled principle that appellate courts may only
consider facts which have been duly certified in the record on appeal. Where
a claim is dependent upon materials not provided in the certified record, that
claim is considered waived.” Commonwealth v. Proetto, 771 A.2d 823,
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834 (Pa.Super. 2001) (citations omitted). Hence, Appellant’s contention on
appeal is waived for this additional reason.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/4/2016
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