Com. v. Tate, D. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEANDRE TATE :
:
Appellant : No. 958 WDA 2022
Appeal from the PCRA Order Entered August 12, 2022
In the Court of Common Pleas of Erie County
Criminal Division at No: CP-25-CR-0001050-2017
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY STABILE, J.: FILED: September 28, 2023
Appellant, Deandre Tate, appeals from the August 12, 2022 order
dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-46. We affirm.
A prior panel of this Court recited the pertinent facts:
On January 26, 2017, [Appellant] was involved in a high-
speed car chase with law enforcement officials that ended in
gunfire on the grounds of the Pennsylvania Solders’ and Sailors’
Home in Erie. At trial, law enforcement officers testified that they
saw [Appellant] aim and discharge his firearm in their direction.
Two additional eyewitnesses testified that they also observed
[Appellant] aim his firearm in the officers’ direction. During his
testimony, [Appellant] admitted that he discharged his firearm,
but denied that he was aiming in the officer’s direction.
Specifically, [Appellant] testified that he discharged his firearm
into the air with the hope that the officers would shoot him,
intending to commit ‘suicide-by-cop.’
Commonwealth v. Tate, 1413 WDA 2018 (Pa. Super. Oct. 7, 2019 ),
unpublished memorandum, at 1-2. The high-speed chase occurred after
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Appellant had been in a bar with a friend, drinking and using drugs. At the
close of a three-day trial, a jury found Appellant guilty of two counts of
aggravated assault, two counts of attempted homicide of a law enforcement
officer, and related offenses. On August 6, 2018, the trial court imposed an
aggregate 25 to 50 years of incarceration.
On direct appeal, Appellant challenged both the weight and sufficiency
of the evidence in support of the fact that he acted with intent to injure or kill
the police officers. This Court rejected his arguments. We explained that the
jury was free to credit the testimony of four eyewitnesses who said Appellant
aimed his firearm at the police and disbelieve Appellant’s claim that he aimed
elsewhere. Thus, the record confirmed that Appellant, after attempting to
elude the police during a car chase, shot at two officers in an attempt to injure
or kill them. Tate, 1413 WDA 2018, unpublished memorandum at 1, 8-9. We
therefore affirmed the judgment of sentence by memorandum of October 7,
2019. Appellant did not seek allowance of appeal. Appellant filed this timely,
counseled, first PCRA petition on November 2, 2020. The PCRA court
conducted a hearing on March 28, 2022 and, after considering post-hearing
briefs, denied relief. This timely appeal followed.
Appellant argues that trial counsel was ineffective for failing to present
expert testimony on his mental health history. Defense counsel was in
possession of mental health records indicating that, as far back as 2013,
Appellant experienced “command hallucinations” directing him to hurt himself
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and others. Appellant sought and received treatment for his condition over
the years. He testified at trial that he was unmedicated at the time of the
offenses but back on medication at the time of trial. Appellant argues that—
owing to his successful treatment at the time of trial—the jury saw an
apparently healthy defendant testify to his prior lack of mental health.
Appellant believes that trial counsel’s failure to consult with and present the
testimony of a mental health expert was devastating to his defense.
On appeal from an order dismissing a PCRA petition, we must determine
whether the record supports the PCRA court’s findings of fact, and whether
the PCRA court committed an error of law. Commonwealth v. Diaz, 183
A.3d 417, 421 (Pa. Super. 2018), aff’d, 226 A.3d 995 (Pa. 2020). The PCRA
court’s findings of fact, if supported by the record, are binding on this Court.
Id. We review the PCRA court’s legal conclusions de novo. Id.To prevail on a claim of ineffective assistance of counsel, a PCRA
petitioner must plead and prove that (1) the underlying issue is of arguable
merit; (2) counsel had no reasonable strategic basis is support of the disputed
action or inaction; and (3) the petitioner suffered prejudice, such that there is
a reasonable probability that, but for counsel’s error, the outcome of the
underlying proceeding would have been different. Commonwealth v.
Stultz, 114 A.3d 865, 880-81 (Pa. Super. 2015), appeal denied, 125 A.3d
1201 (Pa. 2015). The failure to meet any of these prongs is fatal to the claim.
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In essence, Appellant’s “suicide by cop” theory at trial rested on his
claims that (1) he discharged his weapon “into the air” without aiming at the
police, and (2) that his mental state was such that he had no intent to injure
the police but wished to provoke return fire and die. The first of these claims
has been fully litigated and determined against him at trial and on direct
appeal. Presently, Appellant’s focus is on explaining why he believes that trial
counsel was constitutionally ineffective for failing to present expert testimony
regarding Appellant’s mental health. Appellant’s brief details his mental health
history, including several suicide attempts, back to late 2013, more than three
years before the incident in question. He also summarizes the testimony of
the expert, Dr. Gillian Blair, who testified before the PCRA court. Dr. Blair
would have corroborated Appellant’s prior suicide attempts and expounded on
the information revealed in Appellant’s mental health records. She also could
have explained that his current medications enabled his demeanor at trial.
Appellant’s Brief at 25-26. Appellant claims there is a reasonable probability
that Dr. Blair’s testimony, if presented to the jury, would have altered the
outcome of the trial.1
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1 To establish that counsel was ineffective for failing to call a witness, a
petitioner must establish:
(1) that the witness existed; (2) that the witness was available;
(3) that counsel was informed of the existence of the witness or
should have known of the witness's existence; (4) that the witness
was prepared to cooperate and would have testified on appellant's
(Footnote Continued Next Page)
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Appellant relies on several cases in which the petitioner obtained relief
based on trial counsel’s failure to consult with a mental health professional
regarding his client. In Commonwealth v. Legg, 711 A.2d 430 (Pa. 1998),
trial counsel had indicia of the defendant’s mental health problems but failed
to consult with a mental health professional. A proper investigation would
have revealed evidence that supported a diminished capacity defense,
reducing the defendant’s offense from first- to third-degree murder. Counsel’s
failure resulted in prejudicial error. Id. at 433-35.
Likewise, Appellant relies on Commonwealth v. Gainor, 432 A.2d
1116 (Pa. Super. 1981), in which counsel did not investigate a possible
insanity defense where the defendant assaulted a priest under the belief that
the priest was possessing him. In addition, the defendant was exhibiting
bizarre behavior in prison. On collateral review, a doctor familiar with the
defendant testified that he believed, prior to the assault, that the defendant
was mentally ill and needed to be hospitalized. Id. at 1117-18. We concluded
that trial counsel was ineffective because he failed to investigate what
appeared to be a viable insanity defense. Id. at 1118-19. Notably, the
Gainor Court rejected the Commonwealth’s argument that defense counsel
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behalf; and (5) that the absence of the testimony prejudiced
appellant.
Commonwealth v. Michaud, 70 A.3d 862, 868 (Pa. Super. 2013). As we
explain in the main text, Appellant cannot establish prejudice.
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was not ineffective because, among other things, the insanity defense was
“negated by the evidence.” Id. at 1120. “The mere possibility that an insanity
defense could not have been successfully asserted does not excuse counsel’s
failure to explore the merits of such a defense.” Id.
Finally, Appellant cites United States v. Kauffman, 109 F.3d 186 (3d
Cir. 1997). There, the defendant was released from involuntary commitment
against the advice of psychiatrists prior to the offense (selling stolen firearms).
The defendant was examined at a state hospital shortly after his arrest. The
doctor concluded that the defendant was psychotic at the time of the offense.
Id. at 187. Counsel did not review the defendant’s medical records or consult
with a physician and advised the defendant to plead guilty. Id. at 188. The
Third Circuit found that counsel was ineffective, reasoning that “though
[defense counsel] may have found the strength of the government’s case
daunting, we can imagine no reasonable professional calculation which would
support [counsel’s] failure to conduct any pre-trial investigation into the facts
and law of an insanity defense[.]” Id. at 190.
Appellant’s reliance on Legg, Gainor, and Kauffman is misplaced.
Each case addresses defense counsel’s wholesale failure to investigate or
present a defense based on the defendant’s mental health. There is no such
wholesale failure here. Defense counsel presented the “suicide-by-cop”
defense to the jury, but without investigating the possibility of bolstering that
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defense with expert testimony.2 Counsel spent “several days” with Appellant
at Appellant’s mother’s house planning for a defense based on Appellant’s lack
of intent. N.T. Hearing, 3/28/22, at 61. Appellant testified at trial to details
of his prior mental health history, including multiple prior suicide attempts.
N.T. Trial, 6/20/18, at 68-69. He testified that, at the time of the offenses,
he was abusing alcohol and illicit drugs but was not taking medication for his
mental health condition. Id.
In our view, Appellant has failed to demonstrate prejudice. Vital to
Appellant’s defense was his claim that he did not aim his weapon at the police
when he fired it. But the Commonwealth presented four eyewitnesses—the
two police officers Appellant shot at and two others—who testified otherwise.
On direct appeal, this Court wrote:
A review of the record reveals that [Appellant] pointed his
firearm at Officers Allison and Wilson, and attempted to shoot both
officers by repeatedly firing in their direction. Officer Allison
testified that he observed [Appellant] pointing his firearm directly
at his partner, Officer Wilson, when [Appellant] fired his first shot.
Officer Allison further testified that he then drew his service pistol
and began to engage [Appellant], at which time [Appellant]
shifted his body, aimed his firearm at Officer Allison, and shot
again. Further, Dennis Peters, a night security supervision at
Soldiers’ and Sailors’ Home, and Clifford Vantassel, a facility
maintenance manager, each testified that they observed
[Appellant] aim his firearm in the officers’ direction.
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2 Appellant concedes there was no basis for a defense based on legal insanity.
Appellant’s Brief at 24.
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Tate, 1413 WDA 2018, unpublished memorandum at 9 (record citations
omitted). Given this state of the record, the jury could have credited the
testimony Dr. Blair would have offered and still found that Appellant shot at
both officers in an attempt to kill them (and lied when he testified otherwise).
We are cognizant of the Gainor Court’s statement that defense counsel
is not excused from the duty to investigate and a possible insanity defense
even if counsel believes the evidence will negate that defense. Again, we note
there was no wholesale failure to investigate and present a mental health
defense in this case. Rather, the jury credited multiple eyewitnesses whose
testimony negated a critical factual premise of the “suicide by cop” defense
presented to them. Gainor is therefore distinguishable.
To find prejudice here, the PCRA court would have had to find a
reasonable probability that expert testimony would have bolstered Appellant’s
defense to the extent that the jury would have disbelieved four eyewitnesses
and instead credited Appellant’s self-serving claim that he discharged his
firearm harmlessly “into the air.” We discern no error in the PCRA court’s
decision.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2023
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