Com. v. Maier, R. ( 2021 )

J-S19021-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT A. MAIER :
:
Appellant : No. 783 WDA 2020
Appeal from the PCRA Order Entered June 29, 2020
In the Court of Common Pleas of Beaver County Criminal Division
at No: CP-04-CR-0000195-2012
BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED: AUGUST 17, 2021
Robert A. Maier (Appellant) appeals from the order dismissing the
petition he filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. We affirm.
On direct appeal, this Court recited the facts underlying Appellant’s
convictions as follows:
In November of 2011, Appellant and his girlfriend, Ellen Rose
(“Ellen”), had been in a romantic relationship for approximately
twenty-three years. N.T., 3/22/13, at 224. The victim in this
matter (“Victim”) was Ellen’s adult son, thirty-one-year-old
Matthew Rose. Id. at 52. Victim and his wife Brandi Rose
(“Brandi”) had two young children. Id. at 150. Victim and
Brandi were estranged due to Victim’s substance abuse, but they
were attempting to reconcile. Id. at 154. Appellant was upset
about Victim’s drug use, and he also suspected that Victim told
the police that Appellant was selling marijuana. Id. at 237-239.
...
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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[On] Saturday, November 26, 2011, . . . Appellant arrived at
Ellen’s house intoxicated at approximately 2:30 p.m. N.T.,
3/22/13, at 170. Appellant, Brandi, and Victim convened in the
kitchen. Id. Brandi and Appellant were talking while Victim
read a newspaper. Id. at 176. Appellant began commenting on
Brandi’s decision to reconcile with Victim, and Appellant shared
his belief that Victim informed the police about Appellant’s
marijuana dealing. Id. at 177-178. Victim gave no response
and continued to read the newspaper. Id. Appellant then pulled
out a handgun and pointed it at Victim. Id. at 178. Appellant
took several steps toward Victim and fired the weapon at Victim.
Id. at 179. The bullet struck Victim in the side, and Victim and
Brandi fled outside the house. Id.
Appellant followed Victim and Brandi outside, and while Victim
was moving toward a fence, Appellant shot him in the back. Id.
at 185. Despite having been shot twice, Victim attempted to
climb the fence, and Appellant fired a third shot striking Victim in
the lower back causing him to fall. Id. at 186-188. The first
shot pierced Victim’s liver, and the third shot pierced the liver
and cut a furrow through Victim’s heart. N.T., 3/25/13, at 191-
194. Victim died as a result of the third gunshot wound. Id.
Appellant was arrested later that day, and police recovered the
murder weapon from his truck. N.T., 3/22/13, at 89.
Commonwealth v. Maier, 970 WDA 2014, *1-3 (Pa. Super. May 20, 2015)
(unpublished memorandum).
On March 27, 2013, a jury found Appellant guilty of first-degree
murder and possession of a firearm with an obliterated serial number. The
trial court sentenced Appellant on May 2, 2013 to life in prison. Appellant
filed a timely post-sentence motion on May 7, 2013, and the trial court
granted Appellant permission to file a supplemental post-sentence motion.
On August 19, 2013, the trial court denied Appellant’s post-sentence
motions. Appellant filed a notice of appeal with this Court; however, we
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dismissed the appeal on February 10, 2014, due to Appellant’s failure to file
a brief.
On April 21, 2014, Appellant filed a timely PCRA petition seeking the
reinstatement of his direct appeal rights nunc pro tunc. By order filed May
12, 2014, the PCRA court reinstated Appellant’s direct appeal rights, and on
June 11, 2014, Appellant filed a timely, direct appeal nunc pro tunc. This
Court affirmed Appellant’s judgment of sentence and Appellant did not seek
allowance of appeal with the Pennsylvania Supreme Court. See Maier,
supra.
On March 4, 2016, Appellant filed a pro se PCRA petition. The PCRA
court promptly appointed counsel. However, for reasons unclear from the
record, PCRA counsel did not file an amended petition until July 15, 2019.
On December 12, 2019, the PCRA court issued notice of intent to dismiss
Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907, with an
accompanying opinion addressing the issues raised in Appellant’s amended
petition. Appellant filed an untimely response.1 The PCRA court dismissed
Appellant’s petition without a hearing on June 29, 2020. Appellant timely
appealed. The court did not order Appellant to file a Pa.R.A.P. 1925(b)
____________________________________________
1 On January 28, 2020, the PCRA court granted Appellant’s motion for an
extension of time to file a response to the court’s notice. The court
permitted Appellant “to file any response to the Court’s Opinion and Order of
Intent to Dismiss His Amended Post Conviction Relief Act Petition Without
Hearing within 30 days of the date of this Order.” Order, 1/28/20.
Appellant filed his response on April 30, 2020.
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concise statement. On September 17, 2020, the PCRA court filed a
Pa.R.A.P. 1925(a) opinion stating that its reasons for denying the petition
were set forth in its order and opinion filed December 12, 2019, and it would
not issue an additional opinion.
Appellant presents five issues on appeal:
I. Whether prior legal counsel provided ineffective assistance
of counsel in failing to request Jury Instructions on existing
evidence in the record as to (1) [Appellant’s] good
character for peacefulness and/or truthfulness and (2)
[Appellant’s] diminished capacity to First Degree[?]
II. Whether prior legal counsel provided ineffective assistance
of counsel in failing to (1) elicit competent testimony from
testifying witnesses and (2) locate, secure the attendance
of, and present competent testimonial evidence from
additional non-testifying witnesses of [Appellant’s] good
character for peacefulness, non-violence and/or
truthfulness[?]
III. Whether prior legal counsel provided ineffective assistance
of counsel in failing to retain, or alternatively to seek court
ordered funding to retain, an expert specialist in mental
states to conduct a psychiatric and/or psychological
evaluation of [Appellant] to determine his prior
psychological and psychiatric history, including drug and
alcohol abuse and/or mental health illnesses, in order to
marshal evidence of his state of mind at the time of his
actions during the incident to provide a defense to First
Degree Murder of (1) Intoxication and (2) Diminished
Capacity[?]
IV. Whether the Trial Court violated [Appellant’s] Due Process
Rights And/or Rights to Fundamental Fairness by failing or
refusing, sua sponte, to properly and adequately charge
the jury as to [Appellant’s] good character for peacefulness
and/or truthfulness existing on the Record[?]
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V. Whether the Trial Court violated [Appellant’s] Rights to
Assistance of Legal Counsel, Due Process, And/or
Fundamental Fairness by failing or refusing [to] provide
court ordered funding to retain, for the P.C.R.A.
proceedings, an expert specialist in mental states to
conduct a psychiatric and/or psychological evaluation of
[Appellant] to determine his prior psychological and
psychiatric history, including drug and alcohol abuse
and/or mental health illnesses, in order to marshal
evidence of his state of mind at the time of his actions
during the incident to provide a defense to first degree
murder of (1) intoxication and (2) diminished capacity, as
said expert opinions bear on the ineffectiveness of prior
legal trial counsel to fail to request court ordered funding
to retain such an expert[?]
Appellant’s Brief at 5-6.
In reviewing the PCRA court’s dismissal of Appellant’s petition, we
examine “whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal error.”
Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012). “Our scope of
review is limited to the findings of the PCRA court and the evidence of
record, viewed in the light most favorable to the party who prevailed in the
PCRA court proceeding.” Id.Appellant challenges the effectiveness of trial counsel. In deciding
such claims, we begin with the presumption that counsel rendered effective
assistance. Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014).
To overcome that presumption, the petitioner must establish: “(1) the
underlying claim has arguable merit; (2) no reasonable basis existed for
counsel’s action or failure to act; and (3) the petitioner suffered prejudice as
a result of counsel’s error, with prejudice measured by whether there is a
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reasonable probability that the result of the proceeding would have been
different.” Id. (citation omitted). A PCRA petitioner must address each of
these prongs on appeal. See Commonwealth v. Natividad, 938 A.2d 310,
322 (Pa. 2007) (explaining “appellants continue to bear the burden of
pleading and proving each of the Pierce elements on appeal to this Court”).
A petitioner’s failure to satisfy any prong of this test is fatal to the claim.
Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018).
We have reviewed the record mindful of the legal authority cited
above. The crux of Appellant’s overall argument in his five issues is that
trial counsel was ineffective for failing to request a jury instruction on
diminished capacity, and for failing to present witnesses to testify about
Appellant’s good character and reputation for peacefulness. Appellant
argues he “suffered from depression and panic attacks, aided not really by
prescription medication but by self medicating with alcohol and marijuana;
and his level of depression and anxiety peaked causing insomnia in the days
prior to the incident.” Appellant’s Brief at 11. Appellant asserts he had “no
intention of shooting” the Victim, “he just lost control.” Id. at 12.
Additionally, Appellant states that “[v]irtually every Commonwealth witness
testifying knew [Appellant] and each other and confirmed that [Appellant]
was a person of good character for the traits of (1) peacefulness/non-
violence and (2) truthfulness.” Id.
In response, the Commonwealth cites the record and prevailing law in
cogently arguing that Appellant’s issues lack merit. See Commonwealth
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Brief at 13-41. Furthermore, the Honorable Richard Mancini, sitting as the
PCRA court, has authored a comprehensive 27-page opinion which
specifically explains why Appellant’s issues and arguments do not merit
relief. For example, President Judge Mancini accurately states, “where a
defendant raises a defense to first degree murder that he lacked the specific
intent to kill the victim, the defendant admits the fact that he shot and killed
the victim (he admits criminal liability), and character evidence regarding
the defendant’s character for peacefulness is inadmissible.” PCRA Court
Opinion, 12/12/19, at 16 (footnote 38, citing Commonwealth v. Kim, 888
A.2d 847, 853-54 (Pa. Super. 2005), omitted).
President Judge Mancini also references the “wealth of testimony” and
reasons:
Given the evidence presented at trial, it does not appear to this
Court that [Appellant] presented sufficient evidence to warrant
an instruction of diminished capacity. No expert testimony was
provided to evidence a causal link between [Appellant’s]
depression and anxiety conditions [and] their effect on the
cognitive functions necessary to form specific intent. No
explanation by [Appellant] was provided as to the causal nexus.
No other witnesses provided lay testimony regarding
[Appellant’s] conditions or their effect on [Appellant’s] cognitive
functions. Furthermore, [Appellant] himself stated that he
“totally lost control,” which is testimony concerning his inability
to control his actions; inadmissible to establish a diminished
capacity defense as it does not negate specific intent.
PCRA Court Opinion, 12/12/19, at 15 (footnote omitted). President Judge
Mancini additionally observes that trial counsel did request, and the trial
court gave the jury, an instruction as to voluntary intoxication, “which
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practically speaking, deals with the same issue of lack of capacity to form
specific intent as the diminished capacity instruction, except that the
underlying condition is drunkenness rather than some mental disorder.” Id.The court emphasized that despite this instruction, the jury found Appellant
guilty of first-degree murder, concluding that Appellant possessed the
specific intent to kill the Victim. Id.Upon review, we find no merit to Appellant’s claims of error by trial
counsel and the PCRA court. Further, the PCRA court opinion properly
addresses and resolves Appellant’s issues, such that further commentary by
this Court would be redundant. We therefore adopt the PCRA court’s
December 12, 2019 PCRA Opinion and Order as our own in disposing of this
appeal, and direct the parties to attach a copy of the opinion to any relevant
future filings.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2021
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Circulated 07/28/2021 01:56 PM