Com. v. Mullarkey, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN MULLARKEY,
Appellant No. 1561 WDA 2014
Appeal from the PCRA Order September 4, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013073-2007
BEFORE: BOWES, DONOHUE, AND FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 16, 2015
John Mullarkey appeals from the order entered September 4, 2014,
denying his first petition filed pursuant to the Post-Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
This Court delineated the underlying facts of this matter on direct
appeal as follows.1
Appellant and the victim, sixteen-year-old Demi C., were
involved in an intermittent romantic relationship. Attempting to
rekindle his relationship with the victim, Appellant continually
text-messaged her over a period of days. During this time,
Appellant displayed signs of depression to his close friend Greg
B., who was also a neighbor of the victim. After learning that
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1
This author penned the memorandum decision therein and was joined by
Justice Fitzgerald and Judge Panella.
*
Former Justice specially assigned to the Superior Court.
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the victim and a male friend of hers were spending time together
at her home, Appellant threatened to use a screwdriver to break
the windows of her friend’s car. On the date of the murder,
Appellant and the victim text-messaged one another throughout
the day before Appellant travelled to the victim’s home. Prior to
proceeding to the victim’s residence, Appellant asked the victim
if her older brother, who was also a friend, was home. The
victim informed Appellant that her brother was not at the house.
Before leaving for the victim’s residence, Appellant told Greg B.
that the victim told him that he could not hug or kiss her.
Appellant asked his friend if he should still go and see the victim.
Greg B. advised Appellant that there was no reason to see her,
but Appellant decided that he had to talk with the victim.
Appellant then stated to Greg B. that he hoped that he did not
do anything stupid.
Meanwhile, Gale S., one of the victim’s neighbors, walked
to her daughter and son-in-law’s house, which was next door to
the victim’s residence. While conversing, the three individuals
heard blood-curdling screams coming from next door. Demi C.
then exited her home covered in blood, staggered over to Gale
S., and said that Appellant stabbed her. The victim and Gale S.
collapsed onto the ground, as Gale S.’s son-in-law telephoned
911. While attempting to reach 911, he saw Appellant approach.
Appellant appeared to be on a cellular phone and tossed the
telephone to him before falling to the ground. In an attempt to
commit suicide, Appellant had sever[ely] cut his own throat,
causing a gaping wound from ear to ear.
Police, paramedics, and EMT’s [sic] arrived shortly
thereafter. Initially, Appellant’s injuries were considered more
serious and police directed the first paramedic to arrive on the
scene to treat him first. Appellant was rushed to a hospital
where his life was saved. The second paramedic to arrive
immediately began life saving measures on the victim; despite
these efforts, the victim died. She suffered a total of sixteen
stab wounds from a three-and-one-half-inch pocket knife owned
by Appellant. Several wounds were the length of the entire
blade of the knife.
While under armed guard at the hospital, Appellant’s
ability to communicate was initially limited to writing statements
on a dry erase board. At one juncture, Appellant questioned the
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officer guarding him whether a person could still be found guilty
if that person did something wrong while he was on medication
that made that person do it. Appellant added that he had been
taking Accutane, a prescription medication designed to combat
severe acne, which he alleged caused suicidal thoughts and
violent outbursts. In addition, Appellant indicated to the officer
that he stabbed the victim two or three times, not sixteen as
reported.
The Commonwealth charged Appellant with criminal
homicide. Appellant proceeded to a jury trial, asserting as a
defense diminished capacity. In support of his position, he
contended that his use of the prescription drug Accutane caused
uncontrollable and aggressive actions. Both Appellant and the
Commonwealth called expert witnesses. The expert testimony
largely consisted of a discussion of Appellant’s depression and
whether Accutane could have caused him to stab the victim
sixteen times. At the close of the evidence, but prior to the jury
receiving its instructions, the manufacturer of Accutane removed
it from the market. Appellant requested the trial court to either
instruct the jury on this action, permit him a continuance to
investigate, or declare a mistrial. The court denied these
requests and the jury returned a guilty verdict and Appellant
received the mandatory sentence of life imprisonment.
Commonwealth v. Mullarkey, 32 A.3d 828 (Pa.Super. 2011) (unpublished
memorandum, at 1-4).
This Court affirmed Appellant’s direct appeal. Id. Our Supreme Court
denied allowance of appeal on February 15, 2012. Commonwealth v.
Mullarkey, 40 A.3d 121 (Pa. 2012). Appellant, represented by counsel,
timely filed the underlying PCRA petition on February 13, 2013. The
Commonwealth filed an answer and the PCRA court issued a Pa.R.Crim.P.
907 notice of dismissal, detailing its reasons for why Appellant’s petition was
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meritless. Appellant filed a response, and the PCRA court entered a final
order on September 4, 2014. This timely appeal ensued.
The PCRA court directed Appellant to file and serve a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. Appellant
complied, and the PCRA court indicated that its opinion in support of its
notice of intent to dismiss satisfied Rule 1925(a). The matter is now ready
for this Court’s consideration. Appellant raises a single generic issue:
“whether the trial court erred by denying/dismissing Appellant’s petition for
post-conviction collateral relief without a hearing?” Appellant’s brief at 2.
Appellant, however, raises nine separate ineffectiveness claims. Those
issues are as follows.
1. Trial [c]ounsel was ineffective for failing to move to suppress
statements made by the Appellant while the Appellant was in
the hospital and/or for failing to request a jury instruction on
the voluntariness of the statements.
Appellant’s brief at 25.
2. Trial [c]ounsel was ineffective for failing to object to
statements made by the prosecutor during closing argument.
Id. at 32.
3. Trial counsel was ineffective for failing to present evidence of
the character of the victim and the nature of the victim’s
relationship with the Appellant such to establish “adequate
provocation” to merit a jury instruction on voluntary
manslaughter (Pennsylvania Standard Jury Instruction
15.2503(A) [CRIM]). (brackets in original).
Id. at 36.
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4. Trial counsel was ineffective for failing to secure a proper
witness to testify as to the severe psychological side effects of
the prescription drug Accutane.
Id. at 39.
5. Trial counsel was ineffective for failing to present an expert
witness to testify to the nature of the wounds sustained by
the victim and the Petitioner and the conclusions and
inferences that could be drawn therefrom and/or for failing to
effectively cross-examine the Commonwealth’s expert
witness, Dr. Todd Luckasevic.
Id. at 43.
6. Trial counsel was ineffective for failing to investigate and
secure a proper expert witness to conduct a multiaxial
evaluation of the Appellant and to present evidence regarding
an Axis II diagnosis of the Appellant.
Id. at 46.
7. Trial counsel was ineffective for failing to present character
witnesses[.]
Id. at 50.
8. Trial counsel was ineffective for failing to present evidence
that the Appellant was known to carry the knife used to
perpetrate the killing on a regular basis.
Id. at 52.
9. Trial counsel was ineffective for failing to present evidence of
the tumultuous relationship between the victim and the
Appellant.
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Id. at 53.2
In reviewing a PCRA appeal, we consider the record “in the light most
favorable to the prevailing party at the PCRA level.” Commonwealth v.
Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc). In performing this
review, we consider the evidence of record and the factual findings of the
PCRA court. Id. We afford “great deference to the factual findings of the
PCRA court and will not disturb those findings unless they have no support in
the record.” Id. Accordingly, so long as a PCRA court’s ruling is free of
legal error and is supported by record evidence, we will not disturb its
decision. Id. Where the issue presents a question of law, “our standard of
review is de novo and our scope of review is plenary.” Id.Each of Appellant’s positions relates to the effectiveness of trial
counsel. “To plead and prove ineffective assistance of counsel a petitioner
must establish: (1) that the underlying issue has arguable merit; (2)
counsel's actions lacked an objective reasonable basis; and (3) actual
prejudice resulted from counsel's act or failure to act.” Commonwealth v.
Stewart, 84 A.3d 701, 706 (Pa.Super. 2013) (en banc). The failure to meet
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2
We disapprove of Appellant’s raising one general claim in his statement of
questions presented and then setting forth nine separate issues in the
argument section of his brief. Appellant should have included his nine
ineffectiveness claims within his statement of issues presented for review.
See Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated in
the statement of questions involved or is fairly suggested thereby.”).
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any of these aspects of the ineffectiveness test results in the claim failing.
Id.A claim has arguable merit where the factual predicate is accurate and
“could establish cause for relief.” Id. at 707. A determination as to
whether the facts asserted present a claim of arguable merit is a legal one.
Id. In considering whether counsel acted reasonably, we do not use a
hindsight analysis; rather, an attorney’s decision is considered reasonable if
it effectuated his client’s interests. Id. Only where “no competent counsel
would have chosen that action or inaction, or, the alternative, not chosen,
offered a significantly greater potential chance of success[,]” will counsel’s
strategy be considered unreasonable. Id. Finally, actual prejudice exists if
“there is a reasonable probability that, but for counsel's errors, the result of
the proceeding would have been different.” Id.Appellant’s initial ineffectiveness claim is that trial counsel rendered
deficient representation by failing to seek to suppress Appellant’s statements
to police while he was in the hospital. While Appellant was hospitalized for
his self-inflicted knife wound to his neck, he was instructed not to speak.
Accordingly, he communicated with a dry erase board and marker.
Detective Michael Kuma was on guard during the relevant period. At one
point, Appellant tapped his dry erase board and wrote questions about a
preliminary hearing. Appellant does not contest these questions. However,
approximately three hours later, he wrote on the dry erase board, “If I did
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something,” before scratching those words out and writing, “If someone did
something wrong and they were on medication that made them do it, could
they still be found guilty?”
Appellant continued by indicating that he took Accutane and that it
caused suicidal thoughts and violent tendencies. Additionally, Appellant
responded to televised news broadcasts of his crime by writing on his board
that the news report was mistaken as to the size of the knife he used and
the number of wounds the victim suffered.
Appellant argues that counsel should have contended that his Fifth and
Sixth Amendment rights and prophylactic Miranda rights were violated. In
Commonwealth v. Reed, 42 A.3d 314 (Pa.Super. 2012), this Court
discussed the distinction between the Fifth Amendment and Sixth
Amendment right to counsel and Miranda warnings. The Sixth Amendment
right to counsel attaches at or after the initiation of adversarial judicial
proceedings. In contrast, the Fifth Amendment right to counsel generally
attaches once the defendant is in a custodial setting and Miranda warnings
are necessary.
According to Appellant, he was both in custody and subject to an
interrogation when he wrote his questions and statements to the officer
guarding him. In this regard, Appellant maintains that he was shackled to
the hospital bed, charged with criminal homicide, and subject to “around-
the-clock supervision by law enforcement.” Appellant’s brief at 28.
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He continues that, for purposes of a Miranda analysis, an
interrogation included any words or action by police that the law
enforcement official should know is reasonably likely to elicit an
incriminating statement. Appellant maintains that the officer watching him
at the time should have known that engaging in a conversation with
Appellant was likely to evoke an incriminating response. In addition,
Appellant contends that his claim raises an issue of material fact because it
is necessary to determine the nature of the conversation between the
detective and him and whether the detective furthered that dialogue.
The Commonwealth responds that since no interrogation occurred,
counsel cannot be deemed ineffective. In support, it relies primarily on
Commonwealth v. Briggs, 12 A.3d 291 (Pa. 2011). In Briggs, the
Pennsylvania Supreme Court discussed both the Fifth and Sixth Amendment
right to counsel. Therein, the defendant was arrested by state police for
homicide and asked for an attorney. Police informed him that the attorney
he requested was not interested in representing him, and he asked for a
public defender. An officer informed him that his attorney would probably
instruct him not to speak with police but also informed him about a case
where the defendant did not speak to police and received the death penalty.
The trooper then began to exit the room when Briggs stated, “I’m
sorry, I’m sorry, tell their families I’m sorry, I didn’t mean to kill them.”
Briggs, supra at 318. The High Court rejected Briggs’ Fifth and Sixth
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Amendment claims, finding that Briggs was not subject to custodial
interrogation nor was the statement deliberately elicited after the Sixth
Amendment right to counsel attached. The Court concluded that Briggs’
statement was voluntary and spontaneous. Id. at 325.
Here, the PCRA court observed that Detective Kuma had testified at
the preliminary hearing that he did not ask Appellant any questions while he
was guarding Appellant. It further determined that Appellant’s writings were
unsolicited and spontaneous utterances. The findings of the PCRA court are
supported by the record. Appellant contends that Detective Kuma’s police
report indicates a two-way interaction. However, whether Detective Kuma
responded to Appellant’s questions does not indicate that he interrogated
Appellant or provided responses that were reasonably likely to elicit an
incriminating evidence. Detective Kuma did not question Appellant.
Appellant volunteered the information in question without any action by
police likely to induce Appellant to write his statements. Appellant’s claim is
without arguable merit.
To the extent Appellant submits that counsel should have presented
evidence that Appellant was in such a drugged condition that his statements
were involuntary, he fails to meaningfully develop this position with citation
to authority. Further, the record at trial firmly establishes Appellant was
coherent and not impaired. Counsel could not be ineffective in failing to
pursue this meritless position.
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The second issue Appellant levels on appeal is that trial counsel was
ineffective in declining to object during the prosecutor’s closing summation.
The specific statements by the prosecutor that Appellant believes should
have been challenged were as follows, (1) “Folks, let me digress for a few
minutes and talk about this boogeyman that’s been conjured up in the
openings and that Dr. Wagner tried to frighten you about. This cold turkey
nonsense.” N.T., 6/23-29/09, 720-721; (2) “So that’s when he’s laying in
his hospital bed trying to figure a way, how he’s going to spit this hook and
get himself out of this jam what’s he asking Detective Kuma about?” Id. at
724; and (3) “Ladies and gentlemen, the writing was on the wall in this
relationship. Domestic violence is a big problem in today’s society. All right.
And I submit to you had they continued down this path, you know, that’s
where we were heading here. The writing’s on the wall.” Id. at 732.
Appellant avers that the prosecutor committed misconduct by
interjecting his own personal opinion as to the credibility of Appellant’s
defense with respect to the first two statements. In addition, Appellant
posits that, in the final statement, the prosecutor improperly discussed
issues broader than a determination of guilt. Appellant discusses
Commonwealth v. McGeth, 622 A.2d 940 (Pa.Super. 1993), affirmed per
curiam, 636 A.2d 1117 (Pa. 1994), and Commonwealth v. Green, 611
A.2d 1294 (Pa.Super. 1992), in support.
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In McGeth, a jury found the defendant guilty of aggravated assault
and drug offenses. The aggravated assault counts related to a scuffle with
police. The prosecutor during his closing argument called the defendant a
creep and animal and, in response to defense counsel’s attack on the officers
involved credibility, listed the names of a number of police officers not
involved in the case and referred to them as heroes. This Court reversed for
a new trial, finding that the prosecutor’s argument was improper.
In Green, a jury found the defendant guilty of aggravated assault but
acquitted him of possession of an instrument of crime after the defendant
shot an individual. On appeal, Green maintained that the prosecutor
improperly set forth in his closing the number of annual homicides in
Philadelphia and the motives for highway shootings in Los Angeles,
California. The Green panel determined that these arguments were
improper because they were not based on any evidence in the record and
were irrelevant to the case.
The Commonwealth rejoins that the first comment by the prosecutor
was in direct response to Appellant’s evidence and defense. Specifically, the
Appellant’s expert, Dr. Daniel Wagner, stated that no individual should stop
taking any drug cold turkey. The Commonwealth points out that, during
cross-examination, the prosecutor inquired of the witness whether he was
familiar with any studies discussing individuals suspending the use of
Accutane cold turkey, to which that witness responded in the negative. It
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also highlights that it presented evidence from its own expert that
individuals are not weaned off Accutane. In the Commonwealth’s view, the
prosecutor’s argument was based on evidence of record and a proper,
though rhetorically strong, counter to Appellant’s defense. We agree.
The Pennsylvania Supreme Court has opined, “The phrase
‘prosecutorial misconduct’ has been so abused as to lose any particular
meaning. The claim either sounds in a specific constitutional provision that
the prosecutor allegedly violated or, more frequently, like most trial issues,
it implicates the narrow review available under Fourteenth Amendment due
process.” Commonwealth v. Tedford, 960 A.2d 1, 28 (Pa. 2008). It
added, “ineffectiveness claims stemming from a failure to object to a
prosecutor's conduct may succeed when the petitioner demonstrates that
the prosecutor's actions violated a constitutionally or statutorily protected
right[.]” Id. at. 29.
Comments by a prosecutor constitute reversible error only where
their unavoidable effect is to prejudice the jury, forming in their
minds a fixed bias and hostility toward the defendant such that
they could not weigh the evidence objectively and render a fair
verdict. The prosecution's statements are unobjectionable if they
are based on the evidence or proper inferences therefrom, or
represent mere oratorical flair. Additionally, the prosecution
must be permitted to respond to arguments made by the
defense.
Id. at 33 (internal citations and quotations omitted).
Here, the prosecutor’s statements had firm foundations in the
evidence. Although the prosecutor did state that Dr. Wagner’s testimony
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regarding stopping cold turkey was nonsense, the evidence revealed that
there was no support for Dr. Wagner’s testimony as it related to Accutane.
While “it is improper for a prosecutor to express a personal belief as to the
credibility of the defendant or other witnesses,” nevertheless, the
“prosecutor may comment on the credibility of witnesses.” Commonwealth
v. Judy, 978 A.2d 1015, 1020 (Pa.Super. 2009) (citation omitted). A
prosecutor is permitted to fairly respond to a defense and comment on the
evidence. Commonwealth v. Sanchez, 82 A.3d 943, 981 (Pa. 2013).
Nothing in the prosecutor’s initial statement would result in a jury having
such a fixed bias against Appellant as to be unable to render a fair verdict.
For similar reasons, Appellant’s challenge to the second statement by
the prosecutor fails. The prosecutor was referring expressly to Appellant’s
statements to Detective Kuma about Accutane. A prosecutor is permitted to
comment on evidence and make arguments regarding that evidence. See
Sanchez, supra; see also Commonwealth v. Burno, 94 A.3d 956, 974
(Pa. 2014). Appellant’s claim is devoid of merit.
The final aspect of Appellant’s position fairs no better. The
prosecutor’s discussion of the relationship heading toward domestic violence
was in opposition to Appellant’s defense that Appellant and the victim were
engaged in a typical teenage relationship. The prosecutor, based on the
evidence of record, was arguing that Appellant’s relationship was not typical
and was marred by the types of behavior consistent with domestic violence.
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This case is simply not akin to Green, supra or McGeth, supra. The
Commonwealth’s argument was fair comment based on Appellant’s defense
and the evidence in the case.
Next, Appellant contends that trial counsel was ineffective for failing to
present evidence of the victim’s character and her relationship with
Appellant, which would have warranted a voluntary manslaughter
instruction. In doing so, Appellant attempts to challenge the law of the
case relative to this Court’s prior memorandum, where we found that the
evidence established that any provocation that occurred was the result of
words. See Appellant’s brief at 38 (internal citation omitted) (“The
Memorandum Opinion erroneously contends that the only evidence of any
possible provocation on the part of the victim can be found through the
Appellant’s ‘own self-serving claims, he related to others’ and that the only
provocation present was ‘nothing more than words.’”).
Although Appellant maintains that the victim engaged “in a pattern of
intentionally vexatious behavior, toyed with the Appellant’s emotions, and
sought to evoke jealousy[,]” Appellant’s brief at 39, Appellant nowhere
proffered below any witnesses who were willing to testify in this manner.
Appellant provided the names of several witnesses who did testify, as well as
others, who could have commented on the victim’s relationship with
Appellant. However, none of Appellant’s arguments raise an issue of
genuine fact as to whether these witnesses could have testified that the
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victim’s actions were so severe as to have provoked Appellant to stab her
over sixteen times.
Indeed, Appellant attempts to rely on Commonwealth v. Shaver,
460 A.2d 742 (Pa. 1983), the case this Court concluded was inapposite on
direct appeal. In Shaver, our Supreme Court affirmed the defendant’s
judgment of sentence for first-degree murder after he pled guilty generally
to murder. The defendant shot and killed his estranged wife and the trial
court determined at a degree-of-guilt hearing that Shaver committed first-
degree murder. A psychiatrist testified at the hearing that Shaver “acted
under ‘extended provocation’ brought about by the stress, anger and
hostility created by his marital problems and that this provocation reached a
‘crescendo’ on the day of the killing.” Shaver, supra at 745. The High
Court concluded this testimony could have provided a basis for the trial court
to find Shaver committed voluntary manslaughter, but that the trial court
was free to reject the testimony as too vague to be credible. The facts
relative to provocation that were discounted by the trial judge as related by
the Shaver Court are as follows,
[Shaver] and his wife had been living separate and apart for
approximately six or seven months prior to the shooting here in
question. In spite of this, there was continued discord between
the parties. These difficulties centered around the Appellant's
wife's (hereinafter decedent) affair with another person
(hereinafter victim) and issues relating to custody and visitation
rights of the Appellant's eight-year old daughter. There were
continuous arguments as to these visitation rights, escalating at
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times into the use of physical violence. A protective order under
the Protection from Abuse Act was required.
Id. at 743.
The facts of this case that Appellant contends support serious
provocation were that the victim had kissed another boy in front of him, lied
to him about quitting cheerleading, flirted with someone on MySpace,
socialized with another boy, told him that she was sick of him, and struck
him while he was physically restraining her on the day of the killing.
Custody, visitation, and an affair between a husband and wife that resulted
in physical violence and a protection from abuse order is not analogous to
the on-again off-again struggles of a high school romance. None of the
actions alleged by Appellant, even when combined, constitutes serious
provocation and Appellant points to no case law that so holds.
Appellant also alleges that counsel was ineffective in neglecting to
present a proper expert pharmacologist to testify as to the severe
psychological side effects of Accutane. In this regard, he challenges trial
counsel’s decision to utilize Dr. Wagner, who was thoroughly and effectively
cross-examined by the prosecution. Appellant improperly attempts to
incorporate his arguments from below into his appellate brief. Briggs,
supra at 342-343; Commonwealth v. Dodge, 77 A.3d 1263, 1275
(Pa.Super. 2013). Further, he attempts to circumvent the requirement that
he establish the existence of an expert who would testify that Accutane’s
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side effects were so overwhelming as to cause Appellant to have lost his
faculties and mandated a voluntary intoxication charge.3 He does this by
averring that his claim is not that counsel failed to present a particular
expert witness, but that such a witness exists. Nonetheless, he does point
out that he attached a report to his PCRA petition from Dr. Frederick
Fochtman.
The Commonwealth counters that Appellant must not just show that a
qualified potential expert exists, but has to establish “what evidence was
available and identify the witness who was willing to offer such evidence.”
Commonwealth’s brief at 42 (quoting Commonwealth v. Williams, 640
A.2d 1251 (Pa. 1994)). It asserts that the report of Dr. Fochtman does not
support the position that Appellant’s ingestion of Accutane prevented him
from forming a specific intent to kill when he stabbed the victim numerous
times.
In order to prevail on a claim of ineffectiveness for failing to call
a witness, a defendant must prove, in addition to meeting the
three Pierce requirements, that: (1) the witness existed; (2) the
witness was available to testify for the defense; (3) counsel
knew or should have known of the existence of the witness; (4)
the witness was willing to testify for the defense; and (5) the
absence of the witness's testimony was so prejudicial as to have
denied him a fair trial.
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3
We note that Appellant was taking a half-dose of the drug shortly before
the crime, before ceasing usage of the drug by the date of the murder.
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Commonwealth v. Wright, 961 A.2d 119, 155 (Pa. 2008) (footnote
omitted); Commonwealth v. Walls, 993 A.2d 289, 302 (Pa.Super. 2010).
The PCRA court noted that Dr. Fochtman’s report simply stated that “it
cannot be ruled out that his course of acting in therapy may have
contributed to his state of mind.” PCRA Court Opinion, at 20. It opined that
the report failed to meet the requirement of expert testimony being
rendered to a reasonable degree of scientific certainty.
Despite Appellant’s attempt to elude the requirement that he actually
proffer an expert willing to testify as to his defense who would not have
been subject to the same cross-examination as Dr. Wagner, his failure to
present a witness whose testimony would actually support the defense of
voluntary intoxication results in a failure to establish actual prejudice. Only
where a particular witness is available to testify and would have testified,
and that testimony would lead to a reasonable probability of a different
outcome, can a petitioner establish prejudice. As recognized by the PCRA
court, Dr. Fochtman’s report would have been inadequate to give rise to a
legal requirement that the court instruct the jury on voluntary intoxication.
Trial counsel was not ineffective in choosing to offer Dr. Wagner rather than
another expert pharmacologist.
In his fifth claim, Appellant submits that trial counsel was ineffective in
failing to present an expert witness to testify that the nature of the stab
wounds of both Appellant and the victim indicated Appellant engaged in “a
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violent, maniacal, frenzied assault.” Appellant’s brief at 44. In his view, this
would have supported a diminished capacity defense. Additionally, he
alleges that counsel was ineffective in neglecting to adequately cross-
examine Commonwealth expert witness, Dr. Todd Luckasevic.
Appellant proffered an expert report from Dr. Eric Vey, a forensic
pathologist, regarding the stab wounds to both Appellant and the victim. He
maintains that Dr. Vey inferred from the wounds that “suicides by sharp
force weapons are associated with a high frequency of a psychological
dysfunction…” Appellant’s brief at 44 (quoting Dr. Vey’s report, PCRA Exhibit
O). Appellant asserts that Dr. Vey’s report, if presented, could have
established that the killing was in the heat of passion. He also, in boilerplate
fashion and without development, contends that Dr. Vey’s testimony could
have supported an involuntary manslaughter charge. This latter aspect of
his claim fails for lack of development.
The Commonwealth astutely responds that evidence that a person had
a mental disturbance or acted in a violent, maniacal, and frenzied manner
does not establish a diminished capacity defense. Rather, Appellant was
required to demonstrate serious provocation by the victim. Since Dr. Vey’s
proposed testimony does not in any manner address the proper standard for
diminished capacity, the Commonwealth maintains Appellant is entitled to no
relief. We agree.
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“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 v. Hutchinson, 25
A.3d 277, 312 (Pa. 2011). Equally important, “[e]vidence that the
defendant lacked the ability to control his or her actions or acted impulsively
is irrelevant to specific intent to kill, and thus is not admissible to support a
diminished capacity.” Id. The fact that a person has a personality disorder
also does not establish a diminished capacity defense. Id.Dr. Vey’s expert report does nothing to show serious provocation nor
does it apply a hypothetical fact situation of serious provocation to conclude
that Appellant’s stabbing of the victim and himself were the result of such a
mental defect that he could not formulate specific intent. Dr. Vey’s report
establishes that Appellant acted impulsively and that he suffered from a
mental disturbance, but does not further a diminished capacity defense.
Appellant relatedly contends that trial counsel was ineffective in his
cross-examination of the Commonwealth’s expert forensic pathologist, Dr.
Luckasevic. He argues that trial counsel’s thirteen questions to Dr.
Luckasevic did not address inferences regarding Appellant’s mental state
that could be drawn from the injuries the victim and Appellant suffered.
The Commonwealth replies that Appellant has not indicated that Dr.
Luckasevic would have actually testified in the manner proposed had he
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been so questioned. As Appellant failed to even proffer that Dr. Luckasevic
would have testified in a manner consistent with his proposed defense, he
cannot establish actual prejudice.
The sixth issue Appellant advances on appeal is that counsel was
ineffective in failing to present an expert witness regarding Appellant’s Axis
II diagnosis.4 The Axis II diagnosis Appellant refers to was a finding of a
personality disorder not otherwise specified. Appellant again attempts to
improperly incorporate arguments he made below by reference. See
Briggs, supra; Dodge, supra. Nevertheless, he does outline his position
that counsel should have directed his own expert witness, Dr. Robert
Wettstein, to perform a multiaxial evaluation of Appellant or presented the
testimony of another expert regarding Appellant’s personality disorder.
Appellant avers that Dr. David Ness performed a multiaxial evaluation
before Appellant hired Dr. Wettstein.5 Dr. Ness diagnosed Appellant with a
____________________________________________
4
Under the Diagnostic and Statistics Manual of Mental Disorders (“DSM”),
published by the American Psychiatric Association, there are multiple Axes
that relate to certain psychological or mental disorders.
5
Dr. Wettstein authored an expert report for trial and included a diagnosis
under Axis I that Appellant had a depressive disorder not otherwise specified
and alternatively an adjustment disorder with depressed mood. He did not
perform an Axis II diagnosis and set forth that he could not “state with
reasonable psychiatric certainty that the defendant, at the time of the
alleged offense, was so severely depressed, whether due to the Accutane or
a situational reaction to the problematic relationship with the victim, that he
(Footnote Continued Next Page)
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personality disorder. Appellant also submits that he was examined on
January 10 and 11, 2013, by Dr. Ernest Boswell, after his conviction. Dr.
Boswell’s report was attached to Appellant’s PCRA petition. Therein, Dr.
Boswell opined,
The trigger to the immediate conflict appeared to be Mr.
Mullarkey’s statement to the effect of, “Why do you need to be
such a bitch? [The victim] reacted angrily and made comments
to the effect that she hated Mr. Mullarkey and never wanted to
see him again. As testified to by Dr. Wettstein, Mr. Mullarkey
felt like he was, “low, worthless, garbage, crushed, like I wasn’t
a person.” In that moment, Mr. Mullarkey realized the
fundamental truth that the relationship was over. He was
overcome with sudden and intense anger. His emotions were
out of control. Due to his personality dynamics he was unable to
effectively cope with the intense anger, or engage in normal
reflection which may have mediated his response to the
situation. Overwhelmed by his emotional state, his actions are
viewed as instantaneous in the context of the immediate
situation and not premeditated.
Dr. Boswell’s Report, 1/28/13, PCRA Exhibit M, at 23.
Although Dr. Boswell set forth that it was his opinion that Appellant’s
actions were “the result of serious provocation” and his personality disorder,
id. at 24, the actual provocation discussed in Dr. Boswell’s report was the
victim’s angry comments that she hated him and did not want to see him
again. As a matter of law, such words do not rise to the level of serious
provocation. Hence, even if Dr. Boswell testified at trial, Appellant still
_______________________
(Footnote Continued)
completely lacked the cognitive ability to premeditate and deliberate the
alleged offense.” PCRA petition, Exhibit L.
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would not have met the legal criteria for a heat of passion or diminished
capacity instruction. See Hutchinson, supra (fact that person lacked
ability to control himself and acted impulsively does not establish diminished
capacity). Appellant’s position does not entitle him to relief or raise an issue
of material fact.
Appellant’s seventh issue is that counsel was ineffective in declining to
present character witnesses. Appellant contends that character evidence
that Appellant had a reputation for being peaceful and law-abiding would
have supported a voluntary intoxication defense. He asserts that a person
known to be peaceful who stabs an individual sixteen times is acting
completely out of character. According to Appellant, this character evidence
could have helped demonstrate that he acted out of a sudden intense
passion.
The Commonwealth counters that the trial court, in Appellant’s
presence at trial, asked counsel whether Appellant intended to call character
witnesses. The court noted at that time that if Appellant was in
disagreement he could alert the court. Trial counsel set forth that he had
discussed with Appellant whether they would call character witnesses and
had elected not to present any such witnesses. It continues that although
Appellant in his PCRA petition named four character witnesses, he did not
attach any signed certifications or affidavits regarding what those individuals
would have testified too.
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The PCRA court determined that any character evidence would not
have supported a voluntary manslaughter charge based on heat of passion
since there was not evidence that established the requisite serious
provocation. It then ruled that, since character evidence would not support
Appellant’s diminished capacity defense, counsel had a reasonable basis for
not presenting it.
Initially, this Court does not ordinarily dismiss a claim based on a lack
of a signed witness certification where that was not a reason for dismissal
below, and the petitioner was not given an opportunity to correct the defect.
Commonwealth v. Pander, 100 A.3d 626, 642 (Pa.Super. 2014) (en banc)
(“it is improper to affirm a PCRA court's decision on the sole basis of
inadequate witness certifications where the PCRA court did not provide
notice of the alleged defect.”); see also Commonwealth v. Robinson, 947
A.2d 710, 711 (Pa. 2008) (per curiam order) (opining that it was error to
uphold summary dismissal on grounds that petitioner did not include witness
certifications from trial counsel where PCRA court did not provide notice of
this defect).
Nevertheless, even assuming Appellant’s proposed witnesses would
have testified as to his peaceful nature, he cannot establish actual prejudice.
The sole case Appellant cites, Commonwealth v. Hull, 982 A.2d 1020(Pa.Super. 2009), is readily distinguishable. In Hull, a jury convicted the
defendant of a host of sex offenses against his adopted daughter. The only
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evidence the Commonwealth presented was that of the victim and her
brother. Trial counsel’s theory was that the children were lying and that the
crimes did not occur. Counsel testified at a PCRA hearing that he had no
particular strategy in not calling character witnesses. The PCRA court
afforded relief and this Court affirmed, reasoning in part that character
evidence alone could have resulted in an acquittal.
Here, Appellant’s defense was not that he did not commit the crime.
Instead, Appellant was seeking a finding of guilt that was lesser than first-
degree murder. Contrary to Appellant’s claim, evidence that Appellant had a
peaceful character does not give rise to a legal inference that he was
seriously provoked or suffering from voluntary intoxication because he
stabbed the victim outside of that character. In order to establish a lesser
culpability than first-degree murder, Appellant was required to provide
evidence of serious provocation or that his taking of Accutane so impaired
him that he was unable to form specific intent. The presentation of
character evidence does not do either and would not have warranted a jury
instruction relative to voluntary manslaughter. Appellant cannot establish
actual prejudice.
In his penultimate issue, Appellant posits that trial counsel was
ineffective for not presenting the victim’s brother to testify that he knew
Appellant to carry a knife. Appellant fails to cite any legal authority and
again incorporates his arguments from below by reference. In addition,
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Appellant attempts to forward a related position that he did not advance
below. Specifically, he avers that, even if the victim’s brother was unwilling
to testify, he could have presented evidence from a detective who
interviewed the victim’s brother. This aspect of Appellant’s claim is waived.
The Commonwealth also contends that Appellant’s failure to present a
certification that the victim’s brother was willing to testify dooms his claim.
We have previously mentioned that we do not ordinarily affirm a summary
dismissal on this ground where the PCRA court did not give this as a reason
or provide an opportunity to remedy the defect. Pander, supra;
Robinson, supra. However, in this situation the PCRA court in its Rule 907
notice did find that Appellant failed to allege that the victim’s brother was
willing to testify. Since Appellant had the opportunity to remedy this defect
prior to the final order, we agree that no evidentiary hearing was warranted
on this claim. See 42 Pa.C.S. § 9545(d)(1); Pa.R.Crim.P. 902(A)(15).
Appellant’s final position is that trial counsel rendered deficient
representation by not questioning witnesses as to Appellant and the victim’s
romantic relationship. Appellant does not meaningfully develop this claim
and, as with several other of his contentions, merely directs this Court to
arguments he advanced below. The crux of Appellant’s claim is that trial
counsel did not effectively cross-examine various witnesses to show that
Appellant suffered serious provocation.
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The Commonwealth notes that Appellant has not sufficiently provided
an offer of proof as to what the witnesses would have testified to had they
been questioned in a manner still not specifically articulated by Appellant. It
adds that this argument is duplicative of his third issue. In this respect, we
find that Appellant’s final issue fails for reasons already set forth insofar as
none of the evidence Appellant purports that he could present rises to the
level of serious provocation. Appellant is entitled to no relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2015
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