Com. v. Peck, B. ( 2014 )

J-S42001-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BARBARA PECK
Appellant No. 393 WDA 2013
Appeal from the PCRA Order November 7, 2012
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013737-2006
BEFORE: PANELLA, J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J. FILED NOVEMBER 24, 2014
Appellant, Barbara Peck, appeals from the order entered November 7,
2012, by the Honorable Kevin G. Sasinoski, Court of Common Pleas of
Allegheny County, which denied Peck’s Post Conviction Relief Act (PCRA)1
Petition. Additionally, Appellant’s court-appointed counsel, Christy P.
Foreman, Esquire, has filed an application to withdraw as counsel. After
careful review, we affirm the trial court’s order and grant Attorney
Foreman’s application to withdraw as counsel.
A prior panel of this Court set forth the facts and procedural history of
this case.
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1
42 PA.CONS.STAT.ANN. § 9541, et seq.
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Appellant fatally shot her husband Russell Peck while he
was sleeping. The following facts were adduced at the jury trial
through the testimony of Detective Lawrence Carpico, neighbors
to the Appellant’s residential home—Dan and Layla Weiss, and
neighbors to her husband’s seasonal cottage—Robert Cimino and
Shari Samter-Cimino, all of which corroborated Appellant’s
confession.
At trial, Detective Carp[]ico testified that Appellant
confessed the following to him. Appellant and her husband were
married for twenty years. The marriage started to deteriorate
and Appellant asked him for a divorce. Her husband responded
by telling Appellant “that she was welcome to leave at anytime
but she wasn’t getting anything from the business.” N.T. Trial,
8/3-4/09, at 139. [Appellant’s husband owned a construction
business where Appellant worked]. On September 15, 2006,
Appellant arrived home in the evening and read a book. When
her husband came home, she went for a drive for a few hours,
with the hope that when she returned, he would already be
asleep. When she returned he was in fact sleeping.
Appellant waited for a period of time and then got into bed
with him. Three days prior to the incident, she placed a gun
under their bed. Earlier that day she checked the gun “to ensure
that it was still loaded. [Appellant] characterized her husband as
being sneaky and said that she wanted to check the gun at that
point to ensure that he hadn’t removed the bullets from the
gun.” Id. at 142. She retrieved the gun that night sometime
after she got into bed, pointed it to the “silhouette of his head”
and fired. Id. at 143. Appellant got out of the bed and shot him
a second and third time because she wanted to ensure that he
was dead. A snoring sound was coming from him, like that of a
wounded animal, so she closed the window so that no one would
hear him. Appellant’s neighbor, Dan Weiss, testified that he
heard a snoring sound coming from the residence.
Detective Carpico testified that Appellant got into her car
and left the scene. She stopped her car, walked ten to fifteen
feet, and buried the gun under a log. She drove around for ten
to twelve hours, and then traveled to a camp owned by her
husband and sat in the car. Robert Cimino and Shari Samter-
Cimino, who live at the camp all year, testified they noticed
Appellant sitting in her car. Mr. Cimino approached Appellant
first. Appellant told him that she killed her husband. Mr. Cimino
called the police and Mrs. Cimino called for an ambulance
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because Appellant took five to seven Xanax pills and collapsed.
Appellant was first taken to the hospital to be treated for an
overdose and was subsequently arrested by Detective Carp[]ico
and his partner.
Detective Carp[]ico testified that Appellant waived her
Miranda rights and gave several confessions, one of which was
recorded. He asked Appellant to describe her relationship with
her husband, specifically, whether he was physically abusive.
Appellant replied: “[H]ad he ever struck [me], he would have
been dead a long time ago.” N.T. at 137. However, Appellant
contended that he was emotionally abusive towards her, in the
form of talking behind her back and humiliating her at their
work. Appellant also told officers that she was forced to have
several abortions, the last one in June 2006, because her
husband did not want her to have his children. When detectives
asked her why she did not leave him, Appellant responded that
“she didn’t want to see him inflict this kind of evil on other
people, and she felt like she was entitled to her portion of the
business.” Id. at 147. Appellant did not testify at trial.
After both parties rested at trial, defense counsel moved
for the court to instruct the jury on the charge of voluntary
manslaughter. The court denied his request and noted counsel’s
“continuing objection.” Id. at 169. The jury was charged with
whether the Commonwealth proved first or third-degree murder.
On August 4, 2009, the jury found Appellant guilty of first-
degree murder. She was sentenced on October 27, 2009 to life
imprisonment without parole.
Commonwealth v. Peck, 2001 WDA 2009, slip op. at 1-5 (Pa. Super.,
March 11, 2011) (unpublished memorandum) (footnotes omitted). On
appeal, this Court affirmed Appellant’s judgment of sentence, and the
Pennsylvania Supreme Court denied allocatur. See id.; Commonwealth v.
Peck, 27 A.3d 1015 (Pa. 2011) (Table).
Appellant filed a timely pro se PCRA petition, and the PCRA court
appointed counsel. Appointed counsel filed a Turner/Finley no-merit letter
and requested to withdraw. The PCRA court granted counsel permission to
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withdraw and filed notice of its intent to dismiss Appellant’s PCRA petition.
On November 7, 2012, the PCRA court dismissed Appellant’s petition.
Appellant filed a timely pro se appeal. The PCRA court again
appointed counsel in response to this Court’s request to provide notification
of Appellant’s representation status. Appointed counsel filed a concise
statement of errors complained of on appeal and the trial court filed a
responsive opinion.
Preliminarily, we note that Appellant’s court-appointed counsel has
submitted an Anders2 brief, which is procedurally proper for counsel seeking
to withdraw on direct appeal. This is a collateral appeal. Pennsylvania law
requires counsel seeking to withdraw from representing a petitioner under
the PCRA to file a ‘no-merit’ letter pursuant to Commonwealth v. Turner,
544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213(Pa. Super. 1988) (en banc). See Commonwealth v. Karanicolas, 836
A.2d 940, 947 (Pa. Super. 2003). However, this Court has held that,
“because an Anders brief provides greater protection to the defendant, we
may accept an Anders brief in lieu of a Turner/Finley letter.”
Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super.
2004). Accordingly, we will now proceed to determine whether counsel’s
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2
Anders v. California, 386 U.S. 738 (1967).
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motion to withdraw meets the criteria required under a Turner/Finley
analysis.
Counsel petitioning to withdraw from PCRA representation
must proceed ... under [Turner, supra and Finley, supra and]
... must review the case zealously. Turner/Finley counsel must
then submit a “no-merit” letter to the trial court, or brief on
appeal to this Court, detailing the nature and extent of counsel's
diligent review of the case, listing the issues which petitioner
wants to have reviewed, explaining why and how those issues
lack merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the
“no merit” letter/brief; (2) a copy of counsel's petition to
withdraw; and (3) a statement advising petitioner of the right to
proceed pro se or by new counsel.
***
[W]here counsel submits a petition and no-merit letter that
... satisfy the technical demands of Turner/Finley, the court—
trial court or this Court—must then conduct its own review of the
merits of the case. If the court agrees with counsel that the
claims are without merit, the court will permit counsel to
withdraw and deny relief.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation
omitted). See also Commonwealth v. Widgins, 29 A.3d 816, 817 n.2,
818-819 (Pa. Super. 2011).
Here, counsel has substantially complied with the foregoing procedural
requirements. Accordingly, we will proceed to examine whether any of the
issues counsel raises on appeal are of merit:
1. Whether trial counsel was ineffective for failing to investigate
and present a battered woman defense?
2. Whether trial counsel was ineffective for failing to investigate
and prove a diminished capacity defense?
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3. Whether trial counsel was ineffective for failing to “employ
experts, i.e., investigators, pharmacologists, psychiatrists,
previous records of documented abusive issues to prove to
the court that they were available at the time of trial, or to
ask for funding from the court?”
4. Whether trial counsel was ineffective for failing to bring in
family witness[es] that were willing to testify to the
[Appellant’s] character and to the deteriorating marriage and
other areas?
5. Whether the trial court erred by failing to give a jury
instruction on voluntary manslaughter.
6. Whether the evidence was insufficient to support Appellant’s
first degree murder conviction.
Anders Brief at 6.
Our standard of review is well-settled.
When reviewing the propriety of an order granting or denying
PCRA relief, this Court is limited to determining whether the
evidence of record supports the determination of the PCRA court
and whether the ruling is free of legal error. Great deference is
granted to the findings of the PCRA court, and these findings will
not be disturbed unless they have no support in the certified
record.
Commonwealth v. Rachak, 62 A.3d 389, 391 (Pa. Super. 2012), appeal
denied, 67 A.3d 796 (Pa. 2013) (citations omitted).
A PCRA petitioner is eligible for relief if the claim is cognizable under
the PCRA. See 42 Pa.C.S.A. § 9543. Cognizable claims include those that
allege ineffectiveness of counsel that undermined the truth-determining
process. See 42 Pa.C.S.A. § 9543(a)(2)(ii).
Appellant asserts several instances in which she believes trial counsel
was ineffective. It is well-settled that “[a] criminal defendant has the right
to effective counsel during . . . trial.” Commonwealth v. Rathfon, 899
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A.2d 365, 369 (Pa. Super. 2006) (citation omitted). Further, counsel is
presumed effective, and an appellant bears the burden to prove otherwise.
See Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa. 2012).
A PCRA petitioner must demonstrate that counsel’s performance was
deficient and that such deficiency prejudiced him. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). Pennsylvania has further refined
the Strickland test into a three-prong inquiry. An appellant must
demonstrate that: (1) his underlying claim is of arguable merit; (2) counsel
had no reasonable strategic basis for his action or inaction; and (3) the
appellant suffered actual prejudice as a result. See Commonwealth v.
Pierce, 527 A.2d 973, 975 (Pa. 1987). A failure to satisfy any prong of the
Pierce test will require rejection of the claim. See Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014). Moreover, deference is given to the
PCRA court’s credibility determination if supported by the record. See
Commonwealth v. Medina, 92 A.3d 1210, 1214 (Pa. Super. 2014).
Appellant first argues that trial counsel was ineffective for failing to
present a battered woman defense. “[E]xpert testimony regarding battered
woman syndrome ... is admissible as probative evidence of the defendant's
state of mind as it relates to a theory of self-defense.” Commonwealth v.
Miller, 634 A.2d 614, 621-622 (Pa. Super. 1993). “The syndrome does not
represent a defense to homicide in and of itself, but rather, is a type of
evidence which may be introduced on the question of the reasonable belief
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requirement of self-defense in cases which involve a history of abuse
between the victim and the defendant.” Id. at 622. The failure to present
such evidence does not constitute per se ineffectiveness. See id.Here, there is simply no evidence that Appellant suffered physical,
sexual or emotional abuse by her husband such that would rise to the level
of a battered spouse. Appellant expressly denied that that she was
physically abused during her confession to Detective Carpico. Appellant’s
first PCRA counsel, Scott Coffey, Esquire, notes in his Turner/Finley No-
Merit Letter, filed May 7, 2012, that although Appellant claimed she was
emotionally abused by her husband, psychiatrist Dr. Barbara Beadles
examined Appellant and determined that no psychiatric defenses or
conditions were applicable to Appellant’s case. See Turner/Finley No-Merit
letter, 5/7/12 at 7-8. As there was simply no history of abuse upon which to
sustain a theory of battered spouse syndrome, we cannot deem counsel to
be ineffective for failing to pursue a meritless claim.
We reach the same conclusion as to Appellant’s claim that counsel was
ineffective for failing to present a diminished capacity defense. “A
diminished capacity defense requires that a defendant establish he had a
mental defect at the time of a murder that affected his cognitive abilities of
deliberation and premeditation necessary to formulate specific intent to kill.”
Commonwealth v. Fears, 86 A.3d 795, 804 n.1 (Pa. 2014) (citation
omitted). The record is devoid of any evidence to support a claim that
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Appellant suffered a mental defect at the time of the murder, and, in fact,
Dr. Beadle’s opinion that Appellant had no psychiatric conditions when she
killed her husband refutes such a claim. Therefore, trial counsel was not
ineffective for failing to present a meritless defense.
Appellant’s third claim that trial counsel was ineffective for failing to
present experts or introduce documents to prove a history of abuse is
similarly meritless and refuted by the record. As noted, Appellant expressly
denied a history of abuse and, contrary to Appellant’s assertions otherwise,
trial counsel did retain a psychiatrist who determined that no psychiatric
defenses were available. This claim fails.
Appellant next argues that trial counsel was ineffective for failing to
call family witnesses who were willing to testify to her character and to the
deteriorating marriage. Trial counsel will not be deemed ineffective for
failing to call a witness to testify unless it is demonstrated that:
(1) the witness existed; (2) the witness was available; (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 was so prejudicial to
petitioner to have denied him or her a fair trial.
Commonwealth v. Brown, 18 A.3d 1147, 1160-1161 (Pa. Super. 2011)
(citation omitted), appeal denied, 611 Pa. 677, 29 A.3d 370 (2011).
Instantly, Appellant does not establish the identity of any witnesses,
their availability at the time of trial, or whether trial counsel was informed of
the existence of these alleged witnesses. Appellant does not even set forth
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the substance of the witnesses’ testimony. Without this necessary evidence
we are unable to conclude that the “the absence of the testimony was so
prejudicial to petitioner to have denied him or her a fair trial.” Brown,
supra. As such, Appellant’s claim of ineffective assistance in this regard
fails.
Lastly, we find that Appellant is not eligible for PCRA relief on her two
remaining claims on appeal. To the extent Appellant claims that the trial
court erred by failing to give a jury instruction on voluntary manslaughter,
this issue has been previously litigated, and thus, is not cognizable under the
PCRA. See 42 Pa.C.S. § 9543(a)(3). “A claim is previously litigated if the
highest appellate court in which the petitioner could have had review as a
matter of right has ruled on the merits of the issue.” Commonwealth v.
Daniels, --- A.3d ---, ---, 2014 WL 5505024 at *6 (Pa. Super. filed Oct. 30,
2014). Appellant raised this claim on direct appeal, and a panel of this Court
determined that the trial court’s decision not to issue a voluntary
manslaughter jury instruction was not in error. See Peck, supra, 2001
WDA 2009, slip op. at 5-9.
Appellant is similarly ineligible for PCRA relief on her claim that the
evidence was insufficient to support her first-degree murder conviction. An
allegation is waived “if the petitioner could have raised it but failed to do so
before trial, at trial, on appeal or in a prior state postconviction proceeding.”
See 42 Pa.C.S. § 9544(b). As Appellant could have challenged the
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sufficiency of the evidence to support her conviction on direct appeal, but did
not do so, we find that this claim waived.
Based on the foregoing, and after conducting our own independent
review of the record, we agree with counsel’s conclusion that Appellant’s
appeal lacks merit. Accordingly, we affirm the order of the PCRA court
dismissing the petition for post-conviction relief and grant counsel’s
application to withdraw.
Order affirmed. Petition to withdraw as counsel is granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/24/2014
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