Com. v. Chew ( 2021 )

J-A15043-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NOELLE THERESA CHEW :
:
Appellant : No. 2358 EDA 2020
Appeal from the PCRA Order Entered November 2, 2020
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0001661-2017
BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: Filed: August 19, 2021
Noelle Theresa Chew (“Chew”) appeals from the Order dismissing her
Petition for relief pursuant to the Post Conviction Relief Act (“PCRA”). See 42
Pa.C.S.A. §§ 9541-9546. We affirm.
We adopt the PCRA court’s summarization of the procedural and factual
background of this case as though fully set forth herein. See PCRA Court
Opinion, 1/15/21, at 1-7. Additionally, we briefly summarize the underlying
history as follows.
On January 20, 2017, Chew consumed approximately three Long Island
Iced Tea beverages, as well as at least one shot of Fireball Cinnamon whiskey,
while at a bar with friends. Shortly thereafter, Chew argued with her
paramour, who urged her not to drive. Nevertheless, Chew departed in her
vehicle. Thereafter, Chew drove on the wrong side of the road, on
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Pennsylvania State Route 309.1 Multiple drivers attempted to stop Chew by
honking their horns, and many vehicles had to take evasive maneuvers to
avoid Chew’s vehicle. Additionally, Chew’s paramour and Chew’s aunt
attempted to call and text Chew to persuade Chew to stop driving. After
several minutes, Chew collided head-on with a vehicle operated by Damian
Toalombo, resulting in his death.
Chew filed a timely Notice of Appeal and a Pa.R.A.P. 1925(b) Concise
Statement of errors complained of on appeal.
Chew raises the following claim for our review:
Did the [PCRA] court err in dismissing [Chew]’s PCRA Petition
where the evidence showed that trial counsel[, Richard Fink,
Esquire (“Attorney Fink”),] was ineffective for failing to investigate
and present evidence of [Chew]’s mental illness at trial to prove
that she lacked the malice necessary to support a conviction for
third[-]degree murder?
Brief for Appellant at 4.
We review an order [dismissing] a petition under the PCRA
in the light most favorable to the prevailing party at the PCRA
level. This review is limited to the findings of the PCRA court and
the evidence of record. We will not disturb a PCRA court’s ruling
if it is supported by evidence of record and is free of legal error.
This Court may affirm a PCRA court’s decision on any grounds if
the record supports it. We grant great deference to the factual
findings of the PCRA court and will not disturb those findings
unless they have no support in the record. However, we afford no
such deference to its legal conclusions. Further, where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review is plenary.
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1 State Route 309 is divided into two southbound lanes and two northbound
lanes, which are divided by a concrete barrier. Chew was driving in the
southbound direction, in the northbound lanes.
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Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
Chew argues that Attorney Fink should have presented evidence of her
mental health diagnoses of bipolar disorder, alcohol abuse, generalized
anxiety disorder, and depression. Brief for Appellant at 12-14. Chew contends
that Attorney Fink lacked a reasonable basis for failing to present this
evidence, which would have refuted the mens rea requirement of third-degree
murder. Id. at 14-15. Chew, relying on our Supreme Court’s decision in
Commonwealth v. McCusker, 292 A.2d 286 (Pa. 1972),2 claims that her
diagnoses were admissible to dispute the malice requirement of third-degree
murder. Brief for Appellant at 13, 15-16.
Counsel is presumed to be effective, and “the burden of demonstrating
ineffectiveness rests on [the] appellant.” Commonwealth v. Rivera, 10
A.3d 1276, 1279 (Pa. Super. 2010).
To satisfy this burden, an appellant must plead and prove by a
preponderance of the evidence that [] (1) his underlying claim is
of arguable merit; (2) the particular course of conduct pursued by
counsel did not have some reasonable basis designed to effectuate
his interests; and, (3) but for counsel’s ineffectiveness there is a
reasonable probability that the outcome of the challenged
proceeding would have been different. Failure to satisfy any prong
of the test will result in rejection of the appellant’s ineffective
assistance of counsel claim.
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2 In McCusker, our Supreme Court determined that evidence of a defendant’s
mental health diagnoses may be admissible to disprove the intent element of
first-degree murder, specifically, with regards to the heat of passion defense.
See McCusker, 292 A.2d at 288-89.
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Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017) (internal
citations omitted).
Generally, counsel’s assistance is considered effective if he chose a
particular course of conduct that had some reasonable basis designed to
effectuate his client’s interests. Commonwealth v. Ali, 10 A.3d 282, 291
(Pa. 2010). Where matters of strategy and tactics are concerned, “[a] finding
that a chosen strategy lacked a reasonable basis is not warranted unless it
can be concluded that an alternative not chosen offered a potential for success
substantially greater than the course actually pursued.” Commonwealth v.
Colavita, 993 A.2d 874, 887 (Pa. 2010) (quotation marks omitted). Further,
to demonstrate prejudice, the petitioner must demonstrate that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceedings would have been different.” Commonwealth v. King, 57
A.3d 607, 613 (Pa. 2012). “[A] reasonable probability is a probability that is
sufficient to undermine confidence in the outcome of the proceedings.” Ali,
10 A.3d at 291.
In its Opinion, the PCRA court set forth the relevant law, cogently and
thoroughly addressed Chew’s claim, and concluded that Chew has failed to
satisfy any of the three ineffectiveness prongs. See PCRA Court Opinion,
1/15/21, at 8-20. Specifically, regarding the arguable merit prong, the PCRA
court determined that Chew’s mental illness diagnoses were inadmissible to
refute the malice requirement of third-degree murder. See PCRA Court
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Opinion, 1/15/21, at 8-16; see also Commonwealth v. Andrews, 158 A.3d
1260, 1264 (Pa. Super. 2017) (stating that “[u]nder Pennsylvania law, mental
illness is not a defense to criminal liability unless the mental illness rises to
the level of legal insanity.”). Additionally, regarding the reasonable basis
prong, the PCRA court determined that Attorney Fink’s Affidavit demonstrated
a reasonable basis for not presenting evidence at trial of Chew’s mental health
diagnoses. See PCRA Court Opinion, 1/15/21, at 17-19; see also Amended
Affidavit (Attorney Fink), 8/27/20, at 1-6 (unnumbered)3 (wherein Attorney
Fink detailed that he believed Chew’s mental health diagnoses would have
been unhelpful and damaging to her defense due to evidence that Chew did
not take her prescribed medications, did not follow her doctor’s orders
regarding her illnesses, and could show Chew as a “dangerous,
uncontrollable[,] unstable[,] and repeat offender who could not be helped.”);
Ali, supra; Colavita, supra. After review of the record, we agree with the
sound reasoning and determinations of the PCRA court as set forth in its
Opinion, and we affirm on this basis. See PCRA Court Opinion, 1/15/21, at
8-20.
Order affirmed.
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3Attorney Fink’s Affidavit was attached as an Exhibit to Chew’s Second
Amended PCRA Petition.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/21
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Circulated 08/10/2021 03:56 PM