Com. v. Rizor, J. ( 2021 )

J-S11040-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JESSICA RIZOR :
:
Appellant : No. 348 WDA 2020
Appeal from the PCRA Order Entered February 10, 2020
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-CR-0002637-2004
BEFORE: STABILE, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: October 8, 2021
Appellant, Jessica Rizor, appeals from the order entered February 10,
2020, that denied her petition filed under the Post Conviction Relief Act
(“PCRA”).1 After careful review, we are constrained to reverse said order, to
vacate the underlying judgment of sentence, and to remand for a new trial or
entry of a plea.
A panel of our Court previously summarized the facts of this case
as follows:
In 2004, Appellant, a married woman who lived with her
husband and her mother, concealed the fact that she was
pregnant from family and co-workers. In the early morning
hours of the day following Thanksgiving 2004, Appellant
gave birth to a live full-term baby girl in the bathroom of
her home and disposed of the child in plastic bags. Husband
found the deceased child after Appellant insisted that
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541–9546.
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Husband take the garbage out of the house. Husband had
his mother-in-law call 911. Appellant was taken to the
hospital. The Medical Examiner took the deceased child for
an autopsy and discovered that the child was born alive and
died by asphyxiation. Appellant gave a written statement
to police, wherein she detailed the events surrounding the
incident.
Commonwealth v. Rizor, No. 1128 WDA 2008 (Pa. Super., filed
7/21/10) (unpublished memorandum).
Appellant was charged with murder and other crimes stemming
from the incident.[2] The Commonwealth offered Appellant a 5½
to 30-year sentence, in exchange for a plea of guilty but mentally
ill to third-degree murder.
Commonwealth v. Rizor, No. 291 WDA 2016, unpublished memorandum at
1-2 (Pa. Super. filed June 8, 2017).
The trial court granted a motion in limine precluding Appellant from
presenting the excerpt opinions of Dr. Michael Crabtree and Dr. Laszlo Petras
regarding her mental status. Rizor, No. 1128 WDA 2008, at 3, 7.
Thereafter, the trial court conducted a plea colloquy, at which time
Appellant rejected the Commonwealth’s deal. Rizor, No. 291 WDA 2016, at
2. During the colloquy, the trial court “had question[ed] Appellant about
whether she understood the charges she faced and the risk of going to trial.
The court informed Appellant she faced a sentence of life in prison without the
possibility of parole if she was convicted of murder [of] the first degree.” Id.
at 5.
Appellant proceeded to a jury trial, where she was convicted of
first-degree murder, concealing the death of a child, and abuse of
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2 Appellant’s trial counsel was Robert Brady, Esquire (“Attorney Brady”).
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a corpse. On June 5, 2008, the trial court sentenced Appellant to
a term of life imprisonment. On appeal, this Court affirmed
Appellant’s judgment of sentence, and the Pennsylvania Supreme
Court denied Appellant’s petition for allowance of appeal.
Appellant timely filed a PCRA petition, which was subsequently
amended twice with permission of the PCRA court.[3]
After Appellant’s final amendment of her PCRA petition, the PCRA
court issued Rule 907 notice of its intent to dismiss the petition
without a hearing. Appellant filed a response and requested a
hearing. The PCRA court heard argument on this matter, at which
Appellant’s PCRA counsel argued [Attorney Brady] was ineffective
for failing to present a cognizable trial strategy. After substantial
argument, the PCRA court declined to have an evidentiary hearing
to permit Appellant to present evidence from [Attorney Brady]
about his strategy and about his alleged ineffectiveness.[4] The
PCRA court ultimately dismissed Appellant’s PCRA petition.
Id. at 2-3. Appellant filed a timely appeal and “argue[d] the PCRA court erred
by dismissing her PCRA petition without an evidentiary hearing.” Id. at 3.
This Court agreed and “vacate[d] the PCRA court’s order denying relief, and
remand[ed] for an evidentiary hearing.” Id. at 1.
On September 8, 2017, the PCRA court, per the order of the
Superior Court, scheduled an evidentiary hearing for
November 13, 2017. On October[] 23, 2017, [Appellant] filed an
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3 Appellant’s first PCRA counsel was David DiCarlo, Esquire (“Attorney
DiCarlo”). After Attorney DiCarlo motioned for and was granted permission to
withdraw, Appellant’s second PCRA counsel, Joshua H. Camson, Esquire
(“Attorney Camson”), entered his appearance.
4 The certified record contains a witness certification from [Attorney
DiCarlo], stating that he spoke to [Attorney Brady]. The
certification avers [Attorney Brady] admitted during two separate
discussions that he was ineffective, and that he would testify to
his ineffectiveness before the PCRA court. See Amended Witness
Certification of [Attorney] Brady, filed 10/23/14, at 2.
Rizor, No. 291 WDA 2016, at 7.
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omnibus pre-hearing motion requesting the following: 1) that trial
counsel, Attorney Brady, be declared unavailable; 2) that
[Attorney] DiCarlo be permitted to testify to conversations he had
with Attorney Brady; and 3) that Attorney Brady be permitted to
testify by telephone regarding his unavailability. On November 3,
2017, the PCRA court continued the evidentiary hearing in order
to hold argument on the omnibus motion on November 13, 2017.
PCRA Court Opinion, dated June 29, 2020, at 14-15 (footnotes omitted).
Appellant testified at a hearing on June 8, 2018, where she admitted
that she knew that the mental health reports would not be introduced into
evidence on her behalf; however, she believed that Attorney Brady would have
the opportunity to question the mental health experts if they were called by
the Commonwealth to testify:
Q. What, if anything, did [Attorney Brady] tell you the effect of
that ruling was?
A. He didn’t explain much to me. He did tell me that because
Dr. Petr[a]s and Dr. Crabtree were still on the witness list, that
they must be being called so we would probably be able to get
their testimony in.
N.T., 6/8/2018, at 39; see also id. at 40, 56-58, 64-66. When asked “if
[Attorney] Brady had told you, we have no chance of winning, how would that
have affected your decision,” Appellant answered, “If I had no chance, I would
have taken the plea offer.” Id. at 42.5
On October 16, 2018, the PCRA court ordered that trial counsel,
Attorney Brady, who had since retired from the practice of law and
left the jurisdiction, make himself available by whatever means
for the evidentiary hearing now scheduled for November 26, 2018.
At the hearing, Attorney Brady did not appear or make himself
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5 Appellant testified to no other specific circumstances where she would have
accepted a plea, and she never admitted guilt nor otherwise took responsibility
for her actions.
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available by phone, FaceTime video or otherwise. The court
denied the defense’s motion to allow [Attorney] DiCarlo[] to
testify about his communications with Attorney Brady.
[Appellant] testified about her interactions with [Attorney Brady]
and her decision to reject the plea offer and go to trial. On
January 16, 2020, the PCRA court issued notice of its intent to
dismiss the [Appellant]’s PCRA petition[, which included a
memorandum opinion, explaining its reasons for dismissal]. On
January 30, 2020, [Appellant] filed a response to the notice of
intent to dismiss. On February 10, 2020, the PCRA court
dismissed [Appellant]’s PCRA petition.
On March 2, 2020, Attorney Camson filed a notice of appeal on
behalf of [Appellant] from the dismissal order dated February 10,
2020. On March 6, 2020, the PCRA court ordered [Appellant] to
file her concise statement of matters complained of on appeal. On
March 17, 2020, [Appellant] filed her concise statement[ pursuant
to Pa.R.A.P. 1925(b).6]
PCRA Court Opinion, dated June 29, 2020, at 14-15 (footnotes omitted).
Appellant presents the following issues for our review:
[1.] Did the PCRA court err in dismissing Appellant’s Petition
where Appellant proved that [Attorney Brady] was ineffective for
failing to properly counsel her about her chances of trial, thus
ineffectively representing her in the plea bargaining phase of the
case and causing prejudice to her in the form of going to trial on
a case with no chance of success?
[2.] Did the PCRA court err in dismissing Appellant’s Petition
where Appellant proved that [Attorney Brady] was ineffective for
failing to apprise her of the reduced likelihood of success of the
defense strategy after the trial court precluded her mental health
evidence, and that she was prejudiced by this ineffective counsel?
[3.] Did the PCRA court err in dismissing Appellant’s Petition
where Appellant proved that [Attorney Brady] did not present a
cognizable defense, thus resulting in a conviction of murder and a
sentence of life in prison?
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6 On June 29, 2020, the PCRA court entered its opinion pursuant to Pa.R.A.P.
1925(a).
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[4.] Did the PCRA court err in refusing to allow the testimony of
[Attorney] DiCarlo concerning his earlier conversations with
[Attorney Brady] where [Attorney Brady] admitted he was
ineffective in this matter?
[5.] Did the PCRA court err in refusing to admit the statements
of [Attorney Brady] where those statements were proper evidence
for the PCRA court’s consideration?
6. Did the PCRA court apply the wrong legal standard by
concluding that there were no genuine issues of material fact
rather than applying the Pierce[7] test to Appellant’s properly
pled and proven Petition?
Appellant’s Brief at 6-7 (issues re-ordered to facilitate disposition) (PCRA court
answers omitted).
“We review the denial of PCRA relief to decide whether the PCRA court’s
factual determinations are supported by the record and are free of legal error.”
Commonwealth v. Medina, 209 A.3d 992, 996 (Pa. Super. 2019) (quoting
Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018)). “[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 prevailing party at the PCRA court
level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation
omitted). “[T]his Court applies a de novo standard of review to the PCRA
court’s legal conclusions.” Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa.
2011) (citation omitted).
On appeal, Appellant argues the PCRA court erred by dismissing her
PCRA petition. Appellant avers that but for trial counsel’s assurances that she
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7 Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
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would “never set foot in state prison” and counsel’s advice to reject the plea
offer, Appellant would not have proceeded to trial. Appellant’s Brief at 9.
Counsel is presumed to be effective.
To overcome this presumption, a PCRA petitioner must plead and
prove that: (1) the underlying legal claim is of arguable merit;
(2) counsel’s action or inaction lacked any objectively reasonable
basis designed to effectuate his client’s interest; and
(3) prejudice, to the effect that there was a reasonable probability
of a different outcome if not for counsel’s error.
A failure to satisfy any of the three prongs of this test requires
rejection of a claim of ineffective assistance.
Medina, 209 A.3d at 1000 (internal brackets, citations, and quotation marks
omitted) (some additional formatting).
As noted above, during the trial court’s colloquy of Appellant concerning
her decision to reject the Commonwealth’s plea offer, the court informed
Appellant that she faced a sentence of life in prison without the possibility of
parole if she were convicted of murder of the first degree; it had also asked
her if she had been pressured into making her decision. Rizor, No. 291 WDA
2016, at 5. Appellant indicated she understood the charges and risks and that
she had not been coerced into making the choice.
Appellant contends that trial counsel gave her advice to reject the
plea because counsel planned to argue an insanity or diminished
capacity defense. Appellant’s PCRA petition avers that even after
the trial court granted the Commonwealth’s motion to preclude
mental health evidence, counsel did not apprise her of the change
to the defense strategy or its considerably reduced likelihood of
success.
Id. at 6; see also Appellant’s Brief at 14.
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During the evidentiary hearing for her PCRA petition, Appellant testified
that, although she understood that the mental health reports would not be
introduced on her behalf during trial, she still thought that her counsel could
question the mental health experts if and when they were called as witnesses
by the Commonwealth. N.T., 6/8/2018, at 39-40, 56-58, 64-66. Hence, when
Appellant rejected the plea bargain offered by the Commonwealth, that
decision was predicated upon the mistaken belief that her attorney would be
able to present a mental health defense. Appellant’s underlying claim thereby
has arguable merit.
Furthermore, in its opinion, the PCRA court also states that counsel
cannot be deemed ineffective for failing to present a cognizable defense. See
PCRA Court Opinion, dated January 16, 2020, at 21-31. The PCRA court
reached the same conclusion prior to the evidentiary hearing. See Rizor, No.
291 WDA 2016, at 6 (citing PCRA Court Opinion, dated May 17, 2016, at 21).
However, trial counsel’s failure to present a cognizable defense goes toward
evaluating the reasonableness of counsel’s advice not to take the plea. As
this Court previously explained:
Appellant claims she believed trial counsel had a legally sound
defense when she rejected the plea. The court’s evidentiary ruling
prior to trial eviscerated counsel’s ability to present this defense.
Without the ability to present any exculpatory mental health
testimony, and no other line of defense evident from the
transcripts, counsel would have no reasonable basis for rejecting
the plea.
Id. at 6-7.
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Finally, the prejudice in this case is self-evident. Had counsel advised
Appellant to take the plea and Appellant thereby accepted the advice, she
would have received a sentence of 5½ to 30 years of incarceration—instead
of the life without the possibility of parole sentence that she is currently
serving.
Consequently, Appellant has established that her underlying legal claim
is of arguable merit, that counsel’s actions lacked any objectively reasonable
basis designed to effectuate Appellant’s interest, and prejudice. Ergo, she has
overcome the presumption of that counsel was effective. For this reason, we
are compelled to reverse the order of the PCRA court, to vacate the underlying
judgment of sentence, and to remand for a new trial or entry of a plea.8
Order reversed. Judgment of sentence vacated. Case remanded for
proceedings consistent with this decision. Jurisdiction relinquished.
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8 Appellant’s next two challenges concern the admissibility of out-of-court
statements – specifically, the PCRA court’s preclusion of Attorney Brady’s
alleged admissions of ineffectiveness made to Attorney DiCarlo. As we find
that Appellant’s testimony alone was sufficient to establish ineffective
assistance of counsel requiring reversal, we need not reach the question of
whether the PCRA court properly excluded Attorney Brady’s hearsay
statements from evidence, as the admission of these statements would not
have changed the outcome of Appellant’s ineffectiveness challenge. Finally,
we note that it is irrelevant to our review whether the PCRA court used the
correct legal standard in considering Appellant’s ineffectiveness claims, as we
have done so.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/08/2021
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