Com. v. Herder, J.

J-S51037-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSHUA HERDER,
Appellant No. 317 EDA 2015
Appeal from the PCRA Order January 26, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos.: CP-51-CR-0007152-2008
CP-51-CR-0007157-2008
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 15, 2015
Appellant, Joshua Herder, appeals from the order of January 26, 2015,
which dismissed, following a hearing, his first, counseled petition brought
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.
On appeal, Appellant claims he received ineffective assistance of trial
counsel. We affirm.
We take the underlying facts and procedural history in this matter
from our review of the certified record.
On October 17, 2007, Appellant, while residing at a psychiatric halfway
house, stabbed his roommate, Robert Kitchens, to death. 1 (See
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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Commonwealth’s Brief, at 2; see also N.T. Trial; 3/23/09, at 25-28).
Appellant maintained that he acted in self-defense because, after refusing to
engage in a homosexual relationship with Kitchens, Kitchens attacked him
with a knife and attempted to assault him. (See Commonwealth’s Brief, at
3; see also N.T. Trial, 3/23/09, at 25-28).
On December 7, 2007, while incarcerated at the Philadelphia Industrial
Correctional Center, awaiting trial on Kitchens’ murder, Appellant strangled
his cellmate, Charles Kirkland. (See N.T. Trial, 3/19/09, at 57-59; N.T.
Trial, 3/23/09, at 29-33). Appellant claimed he acted in self-defense
because Kirkland had been trying to involve him in a homosexual
relationship and attempted to assault him that evening. (See N.T. Trial,
3/19/09, at 57-58; see also N.T. Trial, 3/23/09, at 29-33).
On March 5, 2009, after Dr. John O’Brien found Appellant competent
to stand trial, Appellant waived his right to a jury trial in return for the
Commonwealth agreeing not to seek the death penalty. (See N.T.
Preliminary Hearing, 3/05/09, at 10-12). On March 23, 2009, following trial,
_______________________
(Footnote Continued)
1
The trial transcript[s] pertaining to the murder of Kitchens are not included
in the certified record. In an effort to obtain them, we contacted the trial
court, who was unable to locate them. This Court has clearly stated that it is
Appellant’s responsibility to ensure that the certified record contains all
documents necessary to ensure that we are able to review his claims. See
Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008); Pa.R.A.P.
1926; Pa.R.A.P. 1931.
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the court found Appellant guilty of two counts each of murder in the first
degree, and of possessing an instrument of crime. (See N.T. Trial, 3/23/09,
at 46). The trial court immediately sentenced Appellant to two consecutive
terms of incarceration of life without parole; it did not impose any sentence
on the remaining charges. (See id. at 47). Appellant did not file a direct
appeal.
On December 24, 2009, Appellant, acting pro se, filed the instant,
timely PCRA petition. Following multiple changes of counsel, on September
11, 2014, counsel filed a second amended PCRA petition. The
Commonwealth filed a motion to dismiss on October 2, 2014.
A PCRA hearing took place on January 26, 2015. At that hearing,
Appellant called Greg Blender, an attorney from the Philadelphia Public
Defenders’ Mental Health Unit, as a witness. (See N.T. PCRA Hearing,
1/26/15, at 5). Attorney Blender was involved in the pre-trial proceedings
but did not represent Appellant at trial. (See id. at 6-7, 15). Appellant did
not call any of the three attorneys who represented him at trial as witnesses.
Attorney Blender testified that they elected not to prepare a guilty but
mentally ill defense because he believed that it was “worse than a straight
guilty plea.” (Id. at 9; see also id. at 8-9). However, he stated that they
believed they had a viable insanity defense but could not present it because
Appellant refused to consider it. (See id. at 10-15). Instead, Appellant
insisted on claiming self-defense, which counsel believed had no chance of
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succeeding. (See id. at 11-12, 15, 17, 21-22, 25-26). Attorney Blender
explained that they did not request a formal pre-trial psychological
examination because: (1) they believed that Appellant was competent to
stand trial; and (2) they would have to turn over that report to the
Commonwealth prior to trial and they were concerned about possible
damaging information contained in it. (See id. at 19-20). He noted that
two mental health professionals employed by the Philadelphia Public
Defenders’ Office did do informal evaluations of Appellant and that the Court
Mental Health Unit Psychiatrist, Dr. O’Brien, found Appellant competent to
stand trial. (See id. at 13, 19, 23-24).
Appellant testified on his own behalf at the PCRA hearing and claimed
that counsel told him that he would get a maximum of fifteen years of
incarceration. (See id. at 26, 28). He acknowledged that counsel did speak
with him about an insanity defense. (See id.). When cross-examined,
Appellant agreed that he did not want to go to a mental hospital but wanted
to be exonerated. (See id. at 29).
Immediately following the evidentiary hearing, the PCRA court denied
Appellant’s petition. The instant, timely appeal followed. On February 8,
2015, Appellant filed a timely statement of errors complained of on appeal.
See Pa.R.A.P. 1925(b). On March 25, 2015, the PCRA court issued an
opinion. See Pa.R.A.P. 1925(a).
On appeal, Appellant raises the following question for our review:
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I. Were trial counsel ineffective for failing to seek a pretrial
psychological examination [for] Appellant because Appellant was
known to be mentally ill?
(Appellant’s Brief, at 4).
Here, Appellant claims he received ineffective assistance of trial
counsel. (See id. at 8-15). It is long settled that “[o]ur standard of review
from the grant or denial of post-conviction relief is limited to examining
whether the PCRA court’s determination is supported by the evidence of
record and whether it is free of legal error. We will not disturb findings that
are supported by the record.” Commonwealth v. Ousley, 21 A.3d 1238,
1242 (Pa. Super. 2011), appeal denied, 30 A.3d 487 (Pa. 2011) (citations
omitted). “The court’s scope of review is limited to the findings of the PCRA
court and the evidence on the record of the PCRA court’s hearing, viewed in
the light most favorable to the prevailing party.” Commonwealth v.
Duffey, 889 A.2d 56, 61 (Pa. 2005) (citation omitted). Further, to be
eligible for relief pursuant to the PCRA, Appellant must establish that his
conviction or sentence resulted from one or more of the enumerated errors
or defects found in Section § 9543(a)(2). He must also establish that the
issues raised in the PCRA petition have not been previously litigated or
waived. See 42 Pa.C.S.A. § 9543(a)(3). An allegation of error “is waived if
the petitioner could have raised it but failed to do so before trial, at trial,
during unitary review, on appeal or in a prior state postconviction
proceeding.” 42 Pa.C.S.A. § 9544(b).
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Appellant specifically contends that counsel was ineffective for not
seeking a pre-trial psychological evaluation of him, which would have
supported an insanity defense and, instead, presenting a non-meritorious
claim of self-defense. (See Appellant’s Brief, at 8).
Counsel is presumed effective, and an appellant bears the burden to
prove otherwise. See Commonwealth v. McDermitt, 66 A.3d 810, 813
(Pa. Super. 2013). The test for ineffective assistance of counsel is the same
under both the Federal and Pennsylvania Constitutions. See Strickland v.
Washington, 466 U.S. 668, 687 (1984); Commonwealth v. Jones, 815
A.2d 598, 611 (Pa. 2002). An appellant must demonstrate 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 proceedings would have been
different. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001),
abrogated on other grounds by Commonwealth v. Grant, 813 A.2d 726
(Pa. 2002). “A failure to satisfy any prong of the test for ineffectiveness will
require rejection of the claim.” Jones, supra at 611 (citation omitted).
Initially we note that in order to be found not guilty by reason of
insanity, a defendant must prove:
that, at the time of the commission of the offense, the actor was
laboring under such a defect of reason, from disease of the
mind, as not to know the nature and quality of the act he was
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doing or, if the actor did know the quality of the act, that he did
not know that what he was doing was wrong.
18 Pa.C.S.A. § 315(b). Further, when the defendant does not present a
defense of insanity, he cannot present evidence in support of finding him
guilty but mentally ill. See Commonwealth v. Henry, 569 A.2d 929, 935-
36 (Pa. 1990), cert. denied, 499 U.S. 931 (1991), abrogated on other
grounds by Commonwealth v. Wilson, 861 A.2d 919, 933 (Pa. 2004);
Commonwealth v. Sasse, 921 A.2d 1229, 1238 n.6 (Pa. Super. 2007),
appeal denied, 938 A.2d 1052 (Pa. 2007).
In the instant matter, as discussed in detail by the PCRA court in its
opinion, counsel wished to present an insanity defense, but Appellant
refused to consider it. (See PCRA Court Opinion, 3/25/15, at 4-6; see also
N.T. PCRA Hearing, 1/26/15, at 10-15). Our Supreme Court found that
counsel was not ineffective for not overriding the client’s wishes in order to
present an insanity defense. See Commonwealth v. Cross, 634 A.2d 173
(Pa. 1993), cert. denied, 513 U.S. 833 (1994), The Pennsylvania Supreme
Court stated:
. . . To plead the defense of insanity suggests that the defendant
committed the act, but was not legally culpable. Here, appellant
maintained that he had not committed the murders. Therefore,
it would have been improper for his attorneys to introduce any
evidence of insanity.
* * *
Both the [Pennsylvania Rules of Professional Conduct] and
the Comment [to it] make clear that the client is to decide the
goal of counsel’s representation. Moreover, the Rule does not
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furnish counsel with the right to override what the client
considers to be in his best interest. This is particularly true
where it has been determined that the client is competent to
stand trial.
To be competent for trial a defendant must be capable of
understanding the nature and objective of proceedings against
him, and be able to cooperate with his legal representative in
presentation of his defense. A determination of competency to
stand trial would support a determination that appellant was
equipped with the same “lucidity” required under
[Commonwealth v.] Mizell [,425 A.2d 424, 426 (Pa. 1981)].
Hence, appellant was mentally capable of making decisions
about his defense, and counsel properly complied with his wishes
regarding the goals of his representation.
Id. (some citations omitted).
Here, as discussed above, the uncontradicted evidence at the PCRA
hearing demonstrated that Appellant refused to consider an insanity defense
because he wanted to argue self-defense. (See N.T. PCRA Hearing,
1/26/15, at 10-15, 17, 21-22, 25-26). Appellant’s own behavior at the
PCRA hearing supports this, because he interrupted the proceedings on four
separate occasions to proclaim he was innocent of the crime, had been
molested by the victims, and wanted to get out jail. (See id. at 10, 17-18,
23). Further, Appellant testified that he did not want to go to a mental
hospital but wanted to present a defense that would result in his immediate
release from incarceration. (See id. at 29). We will not find counsel
ineffective for failing to override the client’s express wishes to purse self-
defense rather than an insanity defense in the absence of evidence that
Appellant was incompetent to stand trial. See Cross, supra at 175-76.
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To the extent that Appellant may be claiming that counsel was
ineffective for not pursuing a pre-trial psychological examination which
would have demonstrated his incompetence to stand trial, Appellant has
failed to present any evidence to support a claim of incompetency. (See
Appellant’s Brief, at 11-13). At the PCRA hearing, Attorney Blender, an
attorney with substantial experience defending the mentally ill, testified in
detail as to why he believed Appellant was competent to stand trial. (See
N.T. PCRA Hearing, 1/26/15, at 14, 19-21). Dr. John O’Brien, a psychiatrist
with the Court Mental Health Unit, evaluated Appellant prior to trial and
found him competent to stand trial. (See N.T. Preliminary Hearing,
3/05/09, at 3-4).
In order to support his claim of incompetency Appellant relies on a
psychological evaluation conducted in 2013 and 2014. (See Second
Amended PCRA Petition, 9/11/14, Appendix A, Letter from Dr. Stephen E.
Samuel to Stephen O’Hanlon, Esquire, 8/06/14, at pp. 1-9; Appellant’s Brief,
at 11-13). However, while the evaluation demonstrates that Appellant is
mentally ill, something that is not in dispute, it does not demonstrate that he
was incompetent to stand trial or to choose his defense. (See Second
Amended PCRA Petition, 9/11/14, Appendix A, Letter from Dr. Stephen E.
Samuel to Stephen O’Hanlon, Esquire, 8/06/14, at pp. 1-9). Rather, Dr.
Samuel made no assessment as to Appellant’s competency to stand trial in
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2009. (See id.). With respect to his state of mind at the time of the
incident, Dr. Samuel stated:
With regard to the issue of [Appellant’s] state of mind at
the time of the incidents[,] which resulted in the charges, I
would state the following within a reasonable degree of
psychological certainty: [Appellant’s] current state of psychosis
makes a retrospective assessment of his state of mind at the
time of the killings unreliable. To do so would be based on
ungrounded speculation. Although [Appellant’s] diagnosis is
clear, and while his diagnosis implies a certain, if not variable
clinical course, retrospectively establishing a case for mental
incapacity, or even a period of lucid capacity in him in 2007,
solely on the basis of his current diagnosis and mental state, is
unreliable.
(Id. at 9). Thus, Appellant’s claim that, but for counsel’s failure to request a
pre-trial psychological evaluation he would have been found incompetent to
stand trial and that, therefore, counsel could have presented an insanity
defense, lacks merit.
Accordingly, for the reasons discussed above we find that PCRA court’s
determination is supported by the evidence of record and is free of legal
error. See Ousley, supra at 1242. Therefore, we affirm the denial of
Appellant’s PCRA petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2015
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