Com. v. Fulton, L. ( 2014 )

J-S31023-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LAMONT FULTON, :
:
Appellant : No. 2168 EDA 2013
Appeal from the PCRA Order Entered July 11, 2013,
In the Court of Common Pleas of Philadelphia County,
Criminal Division, at No. CP-51-CR-0413241-2002.
BEFORE: BOWES, SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JULY 30, 2014
Appellant, Lamont Fulton, appeals from the order entered on July 11,
2013, that denied his petition filed pursuant to the Post Conviction Relief Act
-9546. We affirm.
Following a bench trial, which was held on March 8, 2006, Appellant
was found guilty but mentally ill of first-degree murder and guilty of
On May 8, 2006, the trial
court sentenced Appellant to a term of life imprisonment without the
possibility of parole on the murder conviction and a concurrent term of two
and one-half to five years of incarceration for the PIC conviction. Appellant
filed a direct appeal to this Court, and in a memorandum filed on November
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Commonwealth v. Fulton, 1535 EDA 2006, 944 A.2d 791 (Pa. Super.
November 16, 2007) (unpublished memorandum). Appellant did not pursue
an appeal in the Pennsylvania Supreme Court.
On August 11, 2008, Appellant filed a PCRA petition seeking the
reinstatement of his right to file a petition for allowance of appeal with the
Pennsylvania Supreme Court. Counsel was appointed, and on December 18,
appeal in the Supreme Court. On August 11, 2010, the Supreme Court
Commonwealth v. Fulton, 3 A.3d 670 (Pa.
2010).
On September 17, 2010, Appellant filed a pro se PCRA petition. The
PCRA court appointed counsel, and Appellant filed an amended PCRA petition
on May 9, 2012. On May 3, 2013, pursuant to Pa.R.Crim.P. 907, the PCRA
notified Appellant of its intent to dismiss the PCRA petition without a
filed on July 11, 2013. On July 29, 2013, Appellant filed a timely appeal.
On appeal, Appellant raises the following issue:
Whether the PCRA Court erred by denying appellant PCRA relief
for ineffective assistance of counsel because appellant was
suffering from a serious mental illness at the time of the offense
and counsel failed to pursue a claim of diminished capacity.
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Our standard of review of an order denying PCRA relief is whether the
Commonwealth v. Phillips, 31 A.3d
317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877 A.2d
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)
Commonwealth v. Pierce, 527 A.2d 973, 975-
to meet the prejudice prong of the ineffectiveness standard, a defendant
must show that there is a reasonable probability that but for the act or
omission in question the outcome of the proceeding would have been
Commonwealth v. Wallace, 724 A.2d 916, 921 (Pa. 1999). 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) (quoting Commonwealth v. Rush, 838 A.2d 651, 656
(Pa. 2003)).
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When a defendant asserts a diminished capacity defense, he is
attempting to prove that he was incapable of forming the specific intent to
kill, and if he successfully proves that he could not form the specific intent to
kill, first degree murder is mitigated in gradation to third degree murder.
Commonwealth v. Legg, 711 A.2d 430, 433 (Pa. 1998). Therefore, the
defendant must admit criminal culpability, but seek only to reduce the
degree of guilt. Id. (citations omitted). However, diminished capacity is an
extremely limited defense. Id.
to prese
PCRA court concluded that this issue was meritless, and contrary to
diminished capacity defense. Trial Court Opinion, 10/15/13, at 2. The PCRA
prison mental health records, and the competency evaluation performed by
Id. at 3 (citing
N.T. 3/8/06, pg. 109). The PCRA court found that trial counsel both
argued that his mental illness prevented Appellant from possessing the
specific intent to kill. Id. The PCRA court stated that the trial court
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concluded that Appellant was able to form the specific intent to kill. Id.
Ultimately, the PCRA court determined that trial counsel had pursued a
diminished capacity defense, and therefore, Appellant was entitled to no
relief.1 We agree.
The record reveals that trial counsel pursued a diminished capacity
defense and provi
mental health evaluations, diagnoses, opinions, and medical records. N.T.,
Trial, 3/8/06, at 108-110. Moreover, trial counsel argued that, should the
trial court find Appellant guilty, in light of A
which are supported by the aforementioned documents, the conviction
should only be for third-
Id. at 160-164. For these reasons, we agree with the PCRA court and
1
In its opinion, the PCRA court provided an alternative basis for denying
previously litigated on direct appeal. PCRA Court Opinion, 10/15/13, at 3.
On direct appeal, Appellant argued that the trial court erred in entering a
verdict of guilty but mentally ill on the charge of first degree murder.
Fulton, 1535 EDA 2006, 944 A.2d 791 (unpublished memorandum at *7).
Appellant based this claim on his schizophrenia diagnosis and averred that
his mental illness prevented him from forming the specific intent to kill and
the first-degree murder conviction should have been graded as murder in
the third degree. Id. However, in his PCRA petition, Appellant alleged that
trial counsel was ineffective for failing to pursue a diminished capacity
defense. While the arguments contain related terms, we conclude that the
issue presented here is separate from that presented on direct appeal, and
we decline to conclude that the issue was previously litigated.
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conclude that
failed to raise diminished capacity defense. We discern no error in the PCRA
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/30/2014
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