Com. v. Avery, F. ( 2022 )

J-A26030-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
FRED AVERY, JR.
Appellant No. 1192 EDA 2020
Appeal from the PCRA Order March 6, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0002607-2015
BEFORE: BOWES, J., STABILE, J., and McCAFFERY, J.
MEMORANDUM BY STABILE, J.: FILED APRIL 11, 2022
Appellant, Fred Avery, Jr., appeals pro se from the March 6, 2020 order
entered in the Court of Common Pleas of Philadelphia County dismissing his
petition for collateral relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.
The PCRA court summarized the factual and procedural history of the
case as follows.
The underlying charges stem from Appellant’s vicious stabbing of
three Philadelphia Correctional Officers with his previously hidden
six[-]inch sharpened timing bolt while in county custody on
November 17, 2014. Just prior to the attack, Appellant, then an
inmate at [the] Philadelphia Correctional Center, (“PICC”), had a
verbal and physical altercation with his then-cellmate, Brad Root.
Duly assigned Correctional Officer Richard Hull observed Appellant
“slapping” Root on the common area day room table and
approached the men to break up that fight. Officer Hull told
Appellant to go back to his cell. Although he refused at first, he
J-A26030-21
eventually complied. On the way to his cell, Appellant repeatedly
threatened Officer Hull, telling him “I’m going to kill you when I
come out.” After Officer Hull placed him back in his cell, he had
informed Appellant that he would need to pack his belongings
because he was being sent to a disciplinary unit for making
terroristic threats and engaging in a fight with his cellmate.
Officer Hull then contacted Sergeant Truehart, his supervisor, to
aid with transferring Appellant to the aggregate unit.
When Officer Hull returned to Appellant’s cell with Sergeant
Truehart, he told Appellant to back away from the door. As the
officers unlock[ed] the cell door, Appellant physically charged
them. Sergeant Truehart deployed his pepper spray, which only
infuriated Appellant. As the two officers attempted to restrain
him, Appellant grabbed a homemade deadly weapon that had
been hidden behind . . . his cell toilet. This particular weapon was
made out of a six-inch timing bolt or screw and was referred to as
a “banger or whack” in prison. Appellant then used this weapon
to repeatedly puncture Officer Hull in the head and back area and
Sergeant Truehart in the eye. Emergency response was called,
and a third correctional officer arrived, Officer Bruce Sowell. As
Officer Sowell attempted to assist, he observed the weapon in
Appellant’s hand and the blood splattered on the officers.
Appellant also stabbed Officer Sowell twice in his hand during the
struggle to restrain him.
As a result, all three victim correctional officers were transported
to the Aria Hospital Torresdale Division for treatment of multiple
significant injuries. Officer Richard Hull received 4-5 inch deep
puncture wounds to his neck and back, which after being treated
in the hospital, caused him to miss work for over a year.
Additionally, he was diagnosed with Post-[T]raumatic Stress
Disorder (“PTSD”) and Depression as a result of the attack.
Sergeant Truehart received a puncture wound on the top of his
left eye, had to get four stiches, and lost motility in his eye. He
was also out of work for a year and now suffers from PTSD. Officer
Sowell received two puncture wounds to his left hand that needed
sutures to repair.
Appellant was formally arraigned on April 6, 2015. Mythri
Jayaraman, Esquire from the Mental Health Unit of the Defender
Association of Philadelphia was assigned as his counsel and his
case was listed for pre-trial conferences before the Honorable
Robert P. Coleman Judge of the First Judicial District Court of
-2-
J-A26030-21
Common Pleas. Defense raised the issue [of] Appellant’s mental
competence to stand trial due to Appellant’s uncooperative
behavior and requested he receive a mental health evaluation.
After the evaluation, on June 3, 2015, Appellant was found to be
competent.
Subsequently, on August 27, 2015, the Honorable Sheila Woods-
Skipper Judge of the First Judicial District Court of Common Pleas
found Appellant to be incompetent and entered an Order
committing [Appellant] under the Mental Health Procedures Act
for further treatment. On October 29, 2015, after further
evaluation the Honorable Jeffrey P. Minehart Judge of the First
Judicial District Court of Common Pleas found [Appellant] to be
competent, but in need of continued treatment. [Appellant] was
subsequently committed to the Detention Center Forensic Unit for
sixty (60) days of treatment.
The case was subsequently reassigned to the Honorable Anne
Marie B. Coyle Judge of the First Judicial District Court of Common
Pleas . . . for scheduling conference on December 2, 2015.
Appellant was deemed competent on April 29, 2016 after review
of all updated mental health evaluations. All parties and counsel
acknowledged Appellant’s competence to stand trial. On
November 8, 2016, following execution of verbal and written
colloquies, Appellant waived his right to a trial by a jury, and opted
for a bench trial before the Honorable Anne Marie Coyle,
hereinafter referred to as [the trial court], which took place
immediately following the waiver of jury. Assistant Defender Paul
Downing, Esquire of the Mental Health Unit of the Defender
Association of Philadelphia was assigned as Appellant’s trial
counsel. Assistant District Attorney Michael Luongo, Esquire was
assigned to represent the Commonwealth of Pennsylvania . . . at
trial.
After hearing testimony from both sides, [the trial court] found
Appellant guilty of all charges: [(1) aggravated assault, (2)
possession of an instrument of crime, (3) simple assault, (4)
recklessly endangering another person, (5) aggravated assault,
(6) possession of an instrument of crime, (7) simple assault, (8)
recklessly endangering another person, (9) criminal attempt –
murder, (10) terroristic threats with intent to terrorize another,
(11) aggravated assault, (12) possession of an instrument of
crime, (13) introduce weapon may be used to escape, (14) simple
-3-
J-A26030-21
assault, (15) recklessly endangering another person, and (16)
criminal attempt – murder].
Following entry of guilty verdicts, [the trial court] directed
completion of Presentence Evaluations and Mental Health
Evaluations by the First Judicial District Probation and Parole
Department. Appellant’s sentencing hearing took place on March
29, 2017. After review of all completed presentence reports and
consideration of all relevant data submitted concerning Appellant
at a full and fair hearing, [the trial court imposed an aggregate
sentence of imprisonment of 27.5 years to 55 years], followed by
fifteen (15) years of state supervised reporting probation.
Additionally, Appellant was ordered to be administratively
segregated while in custody while awaiting transition and to
facilitate dual diagnosis treatment to address . . . both his mental
health and drug alcohol addictions. Rehabilitative conditions were
imposed.
Appellant’s trial counsel filed a Motion for Reconsideration of
Sentence the same day that [Appellant] was sentenced. A
motions hearing took place on April 6, 2017, wherein [the trial
court] vacated the original sentence and imposed a sentence that
in effect reduced the aggregate period of confinement. [The
modification involved only the aggravated assault conviction
involving Correctional Officer Sowell in light of the mildness of the
injury sustained by Officer Sowell compared to the other two
officers]. Appellant’s aggregate sentence was altered to reflect a
minimum period of confinement of twenty-five (25) years state
incarceration to a maximum period of confinement of fifty-five
(55) years, followed by fifteen (15) years of state supervised and
conditioned probation.
On November 13, 2017, a counseled appeal was filed on behalf of
Appellant . . .[, which our Court discontinued on July 27, 2018,
upon Appellant’s filing of a praecipe for discontinuance].
On May 3, 2019, Appellant filed a [pro se PCRA petition, in which
he raised several errors. See infra note 2].
On June 5, 2019, Jennifer Tobin, Esquire[,] was appointed as
Appellant’s PCRA counsel. On January 23, 2020, after full
investigation and conferences with her client, Attorney Jennifer
Tobin filed and forwarded to Appellant a “Finley” letter identifying
and explaining her legal opinion that no merit to the PCRA claims
-4-
J-A26030-21
as raised had existed. This correspondence also included Attorney
Tobin’s filed Motion to Withdraw as appellate counsel. Upon
notification by counsel of the filing, [the PCRA court] filed and
forwarded to Appellant written notification of [the PCRA court]’s
intention to formally dismiss all requests for relief pursuant to
Pa.[R.Crim. 907].
Thereafter, on February 19, 2020, Appellant filed a [pro se
response to the PCRA Court’s Rule 907 Notice]. On March 6, 2020,
the PCRA Court filed an Order dismissing Appellant’s PCRA petition
and granting counsel’s motion to withdraw. On May 18, 2020,
Appellant filed a pro se Notice of Appeal to the Superior Court of
Pennsylvania.
PCRA Court Opinion, 7/23/20, at 1-8 (footnote and citations to the record
omitted).
We first must address the timeliness of the instant appeal. A review of
the record reveals that it should have been filed within 30 days of the March
6, 2020 order. The trial court docket, however, shows that it was filed on May
18, 2020. Pursuant to the Supreme Court’s April 28, 2020 order entered in
response to the COVID-19 pandemic, legal papers which were required to be
filed between March 19, 2020, and May 8, 2020, generally shall be deemed to
have been filed timely if they are filed by May 11, 2020. See In Re: General
Statewide Judicial Emergency, Nos. 531 and 532 Judicial Administrative
Docket, at 5 (Pa. filed April 28, 2020). Thus, the instant appeal, which was
filed on May 18, 2020, is facially untimely.
It appears, however, that the notice of appeal, dated April 3, 2020, but
postmarked April 7, 2020, was received by the Office of Judicial Records –
Appeals/Post Trial in Philadelphia on May 18, 2020, whereas a copy of the
-5-
J-A26030-21
same notice mailed apparently on the same date was received by the PCRA
Judge in Philadelphia (same zip code as the Office of Judicial Records) on May
8, 2020. There is no explanation why one envelope arrived on May 8, 2020
(within the deadline set by the Supreme Court) and the other one arrived on
May 18, 2020 (outside the deadline set by the Supreme Court), despite the
fact the envelopes were mailed (apparently) on the same day and sent to
addresses located within the same zip code.
In addition to the administrative breakdown described above and other
issues regarding the trial court’s compliance with Pa.R.Crim.P. 114(C)(2)(c)
and Pa.R.Crim.P. 907(4), we also observe that the notice of appeal, which, as
noted, is dated April 3, 2020 (and presumably delivered to the prison
authorities around the same time), and postmarked April 7, 2020, was timely
filed under both the prisoner mailbox rule and the April 28, 2020 Order of our
Supreme Court. Furthermore, considering the Commonwealth does not
challenge the timeliness of this appeal, we find the instant appeal timely
without need for remand. See Commonwealth v. Cooper, 710 A.2d 76, 79
(Pa. Super. 1998).
On appeal, Appellant raises the following issues for our review:
1) Whether the PCRA court committed an error in law by
determining that Appellant’s PCRA petition was untimely?
2) Whether trial counsel rendered ineffective assistance by failing
to present a mental health expert at trial or at sentencing to
show that Appellant was free from criminal liability in this
matter?
-6-
J-A26030-21
3) Whether the court below abused its discretion by denying PCRA
counsel’s motion for appointment of a (mental health) Expert
Witness thereby denying Appellant the opportunity to prove his
claim?
Appellant’s Brief at 3 (verbatim).
“[A]n appellate court reviews the PCRA court’s findings of fact to
determine whether they are supported by the record, and reviews its
conclusions of law to determine whether they are free from legal error.”
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).
In his first claim, Appellant argues that the PCRA court erred in
concluding that his PCRA petition was untimely. The claim has no merit as
timeliness was not the basis for the court’s decision. While the order
dismissing the petition states that the petition was untimely, a review of the
Rule 907 Notice, Appellant’s response to Rule 907 Notice, and PCRA court’s
Rule 1925 opinion dispel any ambiguity as to the actual ground of dismissal:
the PCRA court found that Appellant’s claims have no merit. Appellant is
therefore entitled to no relief on his first claim.
In his second claim, Appellant argues that trial counsel was ineffective
for “failing to present a mental health expert at trial or at sentencing to show
that Appellant was free from criminal liability in this matter.” Appellant’s Brief,
at 3. His latest argument, contained within the argument section of his brief,
recasts his argument that trial counsel was ineffective to show that Appellant
was free of criminal liability by pursuing a “‘lack of criminal liability defense’ .
-7-
J-A26030-21
. . under the Mental Health Procedures Act”1, citing 50 P.S. §§ 7402, 7403.
Appellant’s Brief at 21. Our review of the record additionally reveals that at
various points in the past, Appellant also has argued that counsel was
ineffective for failing to pursue a diminished capacity defense. Together, the
thrust of this claim by Appellant is that he suffered from some sort of mental
deficit at the time of the offenses and that trial counsel was ineffective for not
pursuing his mental deficit as a defense at the time of trial and sentencing.
For sake of completeness, we will address these various iterations of
Appellant’s “defenses”. Additionally, while not raised by Appellant, we briefly
will discuss the insanity defense and guilty by mentally ill verdict to place
Appellant’s arguments in context.
In addressing ineffective assistance of counsel claims, we are guided by
the following authorities:
[A] PCRA petitioner will be granted relief [for ineffective assistance
of counsel] only when he proves, by a preponderance of the
evidence, that his conviction or sentence resulted from the
“[i]neffective assistance of counsel which, in the circumstances of
the particular case, so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken
place.” 42 Pa.C.S. § 9543(a)(2)(ii). “Counsel is presumed
effective, and to rebut that presumption, the PCRA petitioner must
demonstrate that counsel’s performance was deficient and that
such deficiency prejudiced him.” Commonwealth v. Colavita,
993 A.2d 874, 886 (Pa. 2010) (citing Strickland v. Washington,
466 U.S. 668, 687 (1984)). In Pennsylvania, we have refined the
Strickland performance and prejudice test into a three-part
inquiry. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa.
2001). Thus, to prove counsel ineffective, the petitioner must
____________________________________________
1 The Mental Health Procedures Act (“MHPA”), see 50 P.S. §§ 7101–7503.
-8-
J-A26030-21
show that: (1) his underlying claim is of arguable merit; (2)
counsel had no reasonable basis for his action or inaction; and (3)
the petitioner suffered actual prejudice as a result.
Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).
Spotz, 84 A.3d at 311-12 (citations modified).
A successful insanity defense leads to an acquittal where the defendant
proves that, at the time of the offense, the defendant was under such a defect
of reason, from a disease of the mind, as to not know the nature and quality
of the defendant’s act or, if the defendant did know it, that he did not know
that what he was doing was wrong. See 18 Pa.C.S.A. § 315. 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. See 18 Pa.C.S.A. § 315(a); see also
Commonwealth v. Walzack, 360 A.2d 914, 916 (Pa. 1976) (“[T]oday’s
decision in no way affects the vitality of the M’Naghten test as the sole
standard in this Commonwealth for determining criminal responsibility where
the actor alleges mental illness or defect) (footnoted omitted, emphasis
added). Additionally, we note that personality disorders, alone, are
insufficient to raise an insanity defense. See Commonwealth v. Banks, 521
A.2d 1 (Pa. 1987): “Certainly neither social maladjustment, nor lack of self-
control, nor impulsiveness, nor psycho-neurosis, nor emotional instability, nor
chronic malaria, nor all of such conditions combined, constitute insanity within
the criminal conception of that term.” Id. at 15 (quoting Commonwealth v.
Neill, 67 A.2d 276, 280 (Pa. 1949)).
-9-
J-A26030-21
Here, there is nothing in the record, nor does Appellant argue otherwise,
whether in his PCRA petition, on appeal, or in any other document filed thus
far, that Appellant was insane (or similar wording to that effect) at the time
he committed the offenses. Thus, we need not discuss the legal insanity
defense further.
Because there was no ground to pursue a legal insanity defense, trial
counsel could not have pursued a guilty but mentally ill verdict. Mentally ill is
defined as one “who as a result of mental disease or defect, lacks substantial
capacity either to appreciate the wrongfulness of his conduct or to conform
his conduct to the requirements of the law.” 18 Pa.C.S.A. § 314(c)(1).
Section 314 of the Crimes Codes, in relevant part, 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.A. § 314(a) (emphasis added). That is, a verdict of guilty but
mentally ill is authorized only if the defendant offers an insanity defense and
that defense fails. See, e.g., Commonwealth v. Yasipour, 957 A.2d 734,
742 (Pa. Super. 2008); Commonwealth v. Hatfield, 579 A.2d 945 (Pa.
Super. 1990). Importantly, “a defendant found to be guilty but mentally ill is
entitled to no reduction in sentence.” Yasipour, 957 A.2d at 742 (citation
and quotation marks omitted). Thus, we likewise eliminate from Appellant’s
- 10 -
J-A26030-21
arguments any suggestion that a failure to pursue a “guilty but mentally ill”
verdict may afford him collateral relief.
Next, a defendant charged with first-degree murder who does not meet
the legal insanity defense standards, but nonetheless operated under a limited
mental capacity, may pursue a “diminished capacity” defense. “To establish
a diminished capacity defense, a defendant must prove that his cognitive
abilities of deliberation and premeditation were so compromised, by mental
defect or voluntary intoxication, that he was unable to formulate the specific
intent to kill.” Commonwealth Hutchinson, 25 A.3d 277, 312 (Pa. 2011)
(citing Commonwealth v. Rainey, 928 A.2d 215, 237 (Pa. 2007), and
Commonwealth v. Spotz, 896 A.2d 1191, 1218 (Pa. 2006)). Diminished
capacity is not a justification or excuse; it “is essentially a rule [of evidence]
that permits the admission of expert testimony to disprove an element of first-
degree murder (mens rea) and that requires the judge to comment on the
expert evidence in a way that ensures that the jury will give it neither too
much nor too little weight.” Standard Criminal Jury Instructions, 5.01B; see
also Hutchinson, 25 A.3d at 312 (“A diminished capacity defense does not
exculpate the defendant from criminal liability entirely, but instead negates
the element of specific intent” to kill and may be grounded in mental defect
- 11 -
J-A26030-21
or voluntary intoxication2 (internal quotation marks and citations omitted));
United States v. Pohlot, 827 F.2d 889, 897 (3d Cir. 1987). Diminished
capacity “is an extremely limited” defense. Commonwealth v. Tharp, 101
A.3d 736, 756 (Pa. 2014). In fact, if established, the defense operates only
to negate premeditation and if successful, reduces a first-degree murder
charge to third-degree murder. Id.; see also Hutchinson, supra;
Commonwealth v. McCullum, 738 A.2d 1007, 1009 (Pa. 1999); Scott, 578
A.2d at 940 n.18. Additionally, “[o]ur Supreme Court has indicated that the
diminished capacity defense operates only to negate the specific intent
required for first degree murder, and it is not available for other specific intent
crimes.” Scott, supra (emphasis added) (citing Commonwealth v. Terry,
521 A.2d 398, 404 (Pa. 1987)); see also Commonwealth v. Garcia, 479
A.2d 473 (Pa. 1984); Commonwealth v. Swartz, 484 A.2d 793 (Pa. Super.
1984).3 A “diagnosis with a personality disorder does not suffice to establish
____________________________________________
2 There is no claim that Appellant’s mental capacity at the time of the offenses
was limited due to voluntary intoxication. While “[t]he factual circumstances
under which a voluntary intoxication diminished capacity defense could be
mounted are obviously different than those which would warrant a mental
deficit diminished capacity defense,” Commonwealth v. Mason, 130 A.3d
601, 630 (Pa. 2015), as noted above, the diminished capacity-mental defect
defense and the diminished capacity-voluntary intoxication defense operate
the same way, and if proven, they both result in mitigating first-degree
murder to third-degree murder. Id.; see also Hutchinson, supra.
3 Our Courts have repeatedly affirmed the same position in connection with
diminished capacity-voluntary intoxication. See, e.g., Commonwealth v.
Williams, 730 A.2d 507, 512 (Pa. Super. 1999); (voluntary intoxication is not
(Footnote Continued Next Page)
- 12 -
J-A26030-21
diminished capacity.” Mason, 130 A.3d at 631 (Pa. 2015) (citing
Hutchinson, 25 A.3d at 312) (citations and footnote omitted).
Here, Appellant was not charged with first-degree murder. In fact,
Appellant was charged with attempted murder. Accordingly, the diminished
capacity defense was not available to him.4 Trial counsel therefore could not
be deemed to be ineffective for not pursuing a diminished capacity defense.
Even if a diminished capacity defense was available to Appellant,
evidence of a specific intent to kill may disprove a defense of diminished
capacity. See Commonwealth v. Legg, 711 A.2d 430, 435 (Pa. 1998).
Here, as recounted by the PCRA court, see PCRA Court Opinion, 7/23/20, at
15-16, evidence about specific intent was so overwhelming that we likewise
cannot conclude that counsel’s failure to raise a diminished capacity defense
resulted in ineffective assistance of trial counsel.
While Appellant also argues that Section 7404(b) of the MHPA provides
a defense separate from other defenses based on a person’s mental capacity
at the time of the crimes, Appellant provides only conclusory statements
____________________________________________
a defense to attempted murder). This position remains unchanged even after
Commonwealth v. Fisher, 80 A.3d 1186 (Pa. 2013) (conspiracy to commit
third-degree murder is a cognizable offense). See, e.g., Commonwealth v.
Squillaciotti, No. 1239 EDA 2013, 2014 WL 10917019, at *3, n.2 (Pa. Super.
2014), appeal denied Commonwealth v. Squillaciotti, 105 A.3d 737 (Pa.
2014) (voluntary intoxication is unavailable in conspiracy or attempt cases).
4Appellant readily acknowledges the inapplicability of the diminished capacity
defense here. Appellant’s Brief at 23.
- 13 -
J-A26030-21
devoid of any support in the law. See Appellant’s Brief at 23-24. In fact, at
a Section 7403 hearing, consideration and determination of whether Appellant
was criminally responsible “shall [be done] in accordance with the rules
governing the consideration and determination of the same issue at criminal
trial.” 50 P.S. § 7404(a); see also Scott, 578 A.2d at 937-38. Thus,
defenses to criminal responsibility are the same whether at a Section 7403
hearing or at trial. We find no authority for Appellant’s argument that there
is a separate Section 7404 “lack of criminal responsibility” defense for use at
trial under the MHPA. To the contrary, in Scott, a case repeatedly cited by
Appellant, our Court noted:
The Mental Health Procedures Act specifically provides that even
if the court refuses to enter a pre-trial acquittal based on a lack of
criminal responsibility, the defendant still “may raise the defense
at such time as he may be tried.” See 50 Pa.Stat.Ann. § 7404(a).
Thus, the precise issue that Scott seeks to have reviewed at this
time—i.e., whether he was legally insane at the time he
committed these offenses and thus should be acquitted on all
charges—can be presented to the fact-finder at his upcoming trial.
If the jury rejects Scott’s insanity defense, he still will be free to
challenge that finding on a direct appeal. On the other hand, if
the fact-finder accepts Scott’s argument and acquits him of all
charges, it would obviate the necessity for any appeal relating to
criminal responsibility.
Scott, 578 A.2d at 941 (internal citation omitted).
Accordingly, we conclude that trial counsel was not ineffective for not
separately raising a MPHA Section 7404 defense of “lack of criminal
responsibility”, since this reference does not provide for any additional mental
health defenses than otherwise available at law.
- 14 -
J-A26030-21
Because Appellant’s claim that trial counsel was ineffective for not
raising as a defense Appellant’s mental deficit at the time of the crimes has
no merit, we need not address the remaining prongs of the ineffective
assistance of counsel standard. See Spotz, supra. See also
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (“A petitioner
must prove all three factors . . ., or the claim fails.”) (internal citations
omitted).
In his last claim, Appellant argues that the PCRA court abused its
discretion in denying PCRA’s counsel application for pre-approval of fees for a
psychiatric evaluation to prove “lack of criminal liability defense” under the
MHPA. Appellant’s Brief at 23 (citing Scott, supra).5 In support of his
application, Appellant argues that under Commonwealth v. Santiago, 855
A.2d 682 (Pa. 2004), the PCRA court was supposed to hold a “retrospective
hearing to establish his mental state at the time of the incident.” Id. at 24.
We disagree.
In Santiago, a plurality of the Supreme Court held that the failure to
raise on direct appeal a claim that the appellant was incompetent at the time
of trial does not constitute a waiver of that claim for purposes of the PCRA.
Additionally, the Supreme Court identified the circumstances under which a
retrospective hearing for purposes of determining defendant’s competency at
____________________________________________
5 As we have noted above, there is no separate defense under the MHPA.
- 15 -
J-A26030-21
the time of trial should be held. Appellant’s reliance on Santiago is misplaced.
In Santiago, the Supreme Court addressed competency to stand trial, not
defenses to criminal liability. See Santiago, 855 A.2d at 692-94. Appellant
is not arguing that he had competency issues at trial. As noted, the thrust of
Appellant’s ineffectiveness claim is that Appellant suffered from mental issues
affecting his cognitive functions at the time of the offenses. Because
Santiago deals with competency at the time of trial, and not mental health
at the time offenses were committed, reliance on Santiago is misplaced.
Therefore, Appellant is not entitled to relief on his claim that the PCRA court
erred or abused its discretion in denying his motion for pre-approval of fees
for a psychiatric evaluation in connection with his PCRA petition.6
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/2022
____________________________________________
6 While Appellant seems to have limited his request for funds for purposes of
a “MPHA defense,” our conclusion encompasses also the other defenses
discussed above.
- 16 -