Com v. Wilson, L.

J. S23014/14
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
LARRY WILSON, : No. 782 EDA 2013
:
Appellant :
Appeal from the PCRA Order, January 31, 2013,
in the Court of Common Pleas of Bucks County
Criminal Division at No. CP-09-CR-0002838-2003
BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND WECHT, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 11, 2014
Larry Wilson appeals from the order of January 31, 2013, denying his
PCRA1 petition. We affirm.
roommate in the neck with a knife during a visit to
sister testified appellant was in a trance-like state for
the majority of the visit and had continuously stared
at the victim in an angry fashion. Appellant stated to
police that he killed the victim because the demons
blood tested positive for small traces of PCP and
marijuana.
Commonwealth v. Wilson, No. 1783 EDA 2004, unpublished
memorandum at 1-2 (Pa.Super. filed September 22, 2005). Following a jury
trial, appellant was found guilty of first-degree murder, criminal trespass,
1
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
J. S23014/14
and possession of an instrument of crime. On December 22, 2003, appellant
was sentenced to life imprisonment for first-degree murder and concurrent
sentences for criminal trespass and PIC. This court affirmed judgment of
sentence on September 22, 2005; and on May 1, 2007, our supreme court
denied allowance of appeal.
Appellant filed a timely pro se PCRA petition on April 11, 2008.
An evidentiary hearing was held on October 3, 2012, at which both appellant
and trial counsel testified. On January 31, 2013, the PCRA court denied the
petition. On February 27, 2013, appellant filed a timely notice of appeal.
Appellant has complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.; and the
PCRA court has filed an opinion, relying on its January 31, 2013
memorandum denying PCRA relief.
I. Whether the trial court erred by denying
counsel failed to convey a plea bargain offered
by the Commonwealth prior to trial[?]
II. Whether the trial court erred by denying
counsel failed to present evidence of Dandy
Walker Syndrome[?]
III. Whether the trial court erred by denying
counsel failed to call character witnesses on
-2-
J. S23014/14
IV. Whether the trial court erred by denying
counsel failed to call the Appellant as a witness
at his trial[?]
V. Whether the trial court erred by denying
[trial counsel] failed to permit the Appellant to
participate in his defense at trail [sic][?]
VI. Whether the trial court erred by denying
[trial counsel] failed to raise an objection and
failed to request that the jury to [sic] consider
Voluntary Intoxication as a defense[?]
Initially, we recite our standard of review:
denying a petition under the PCRA is whether the
determination of the PCRA court is supported by the
evidence of record and is free of legal error.
Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v.
Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).
Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),
appeal denied, 940 A.2d 365 (Pa. 2007).
ineffectiveness, Appellant must demonstrate (1) that
the underlying claim is of arguable merit; (2) that
reasonable ba
Commonwealth v. Wallace, 555
Pa. 397, 407, 724 A.2d 916, 921 (1999), citing
Commonwealth v. Howard, 538 Pa. 86, 93, 645
A.2d 1300, 1304 (1994) (other citation omitted). In
-3-
J. S23014/14
order to meet the prejudice prong of the
ineffectiveness standard, a defendant must show
proceeding would have been diffe
Commonwealth v. Kimball, 555 Pa. 299, 308, 724
A.2d 326, 331 (1999), quoting Strickland v.
Washington, 466 U.S. 668, 694, 104 S.Ct. 2052,
co Id. at 309, 724 A.2d at
331, quoting Strickland, 466 U.S. at 694, 104 S.Ct.
2052.
Commonwealth v. Jones, 811 A.2d 1057, 1060 (Pa.Super. 2002), appeal
denied
place upon Appellant the burden of proving otherwise. Counsel cannot be
Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)
(citations omitted).
In his first issue on appeal, appellant claims that trial counsel,
Ann Faust, Esq., was ineffective for failing to communicate a plea offer of
third-degree murder.
Generally, counsel has a duty to communicate plea
bargains to his client, as well as to explain the
advantages and disadvantages of the offer. Failure
to do so may be considered ineffectiveness of
counsel if the defendant is sentenced to a longer
prison term than the term he would have accepted
under the plea bargain. Where the PCRA court's
determination of credibility is supported by the
record, we will not disturb it on appeal.
-4-
J. S23014/14
Commonwealth v. Marinez, 777 A.2d 1121, 1124 (Pa.Super. 2001),
appeal denied, 788 A.2d 374 (Pa. 2001) (citations omitted).
Appellant relies on a letter from Kenneth J. Weiss, M.D., who was a
defense expert at trial. The letter is dated August 5, 2004, while the case
was on appeal, and references a plea offer:
My understanding is that you rejected a plea offer
and insisted on having a trial. Your lawyers told you
that, by using a defense of voluntary intoxication[2],
2
Evidence of voluntary intoxication or drugged
condition may be used to reduce murder from a
higher degree to a lower degree. 18 Pa.C.S. § 308.
The theory of this rule of law is that a person
overwhelmed by the effects of alcohol or drugs
cannot form a specific intent to kill. As this Court
stated in Commonwealth v. England, 474 Pa. 1,
375 A.2d 1292 (1977):
Where the question of intoxication is
introduced into a murder case its only
effect could be to negate the specific
intent to kill which is required for a
finding of murder of the first degree
. . . . If intoxication does render an
accused incapable of forming the
necessary intent the result is to reduce
the crime to a lesser degree of murder.
In no event does the reduction change
the character of the crime from murder
to manslaughter.
Id. at 19-20, 375 A.2d at 1301. Further, in order for
intoxication to reduce murder from a higher to a
lower degree, it must be proven that the actor was
overwhelmed to the point of losing his faculties and
sensibilities. Commonwealth v. Reiff, 489 Pa. 12,
15, 413 A.2d 672, 674 (1980).
Commonwealth v. Breakiron, 571 A.2d 1035, 1041 (Pa. 1990).
-5-
J. S23014/14
the best you could do was to have first-degree
murder reduced to third-degree. This is the same
effect as getting a plea bargain. Why you chose to
have a trial is mysterious to us, but it is a fact that
your lawyers advised against it. Intoxication
defenses are unpopular, and I am sorry to say that
you gambled and lost.
unequivocally that there was never any such plea offer. (Notes of
testimony, 10/3/12 at 53.) Attorney Faust testified that appellant was never
offered a plea agreement and that appellant was adamant that he wanted a
jury trial. (Id. at 54.) Attorney Faust testified that if they were offered
third-degree murder, they would have done everything in their power to get
appellant to take it, particularly because juries generally do not like
intoxication defenses. (Id.) Attorney Faust had no idea why Dr. Weiss was
under the misapprehension that a plea down to third-degree murder was
offered. (Id.) Attorney Faust testified that the prosecuting attorney stated
during a pre-trial conference that he would not oppose a bench trial;
however, there was no plea offer and the trial judge never indicated he
would find appellant guilty of only third-degree murder. (Id. at 53-54.)
The PCRA court found as a fact that no plea bargain was ever offered
supported by the rec
-6-
J. S23014/14
the Commonwealth offered appellant a plea to third-degree murder, lacks
merit. Attorney Faust cannot be held ineffective for failing to communicate a
plea offer that never existed. This claim fails.
In his second issue on appeal, appellant argues that trial counsel was
ineffective for failing to present evidence of Dandy Walker Syndrome.3
According to appellant, trial counsel could have used this evidence to
establish a defense of diminished capacity.
Diminished capacity is a limited defense, which does
not exculpate the defendant from criminal liability
entirely, but instead negates the element of specific
intent. Commonwealth v. Gibson, 597 Pa. 402,
951 A.2d 1110, 1131-32 (2008) (citations omitted).
Thus, a defendant asserting a diminished capacity
defense admits responsibility for the underlying
action, but contests the degree of culpability based
upon his inability to formulate the requisite mental
state. Id. at 1132.
3
According to the National Institutes of Health,
Dandy-Walker Syndrome is a congenital brain
malformation involving the cerebellum (an area at
the back of the brain that controls movement) and
the fluid-filled spaces around it. The key features of
this syndrome are an enlargement of the fourth
ventricle (a small channel that allows fluid to flow
freely between the upper and lower areas of the
brain and spinal cord), a partial or complete absence
of the area of the brain between the two cerebellar
hemispheres (cerebellar vermis), and cyst formation
near the lowest part of the skull. An increase in the
size of the fluid spaces surrounding the brain as well
as an increase in pressure may also be present.
http://www.ninds.nih.gov/disorders/dandywalker/dandywalker.htm
-7-
J. S23014/14
Commonwealth v. Williams, 980 A.2d 510, 527 (Pa. 2009).
According to appellant, he suffers from Dandy Walker Syndrome which
causes migraines. (Notes of testimony, 10/3/12 at 12.) This was the
reason he was using PCP. (Id.) Appellant also testified that Dandy Walker
Syndrome can cause an individual to be violent. (Id. at 15.) Appellant
theorizes that the cyst on his brain combined with PCP caused him to kill the
victim. (Id.)
Ms. Faust testified that appellant never told her or co-counsel,
Lisa Douple, Esq., that he suffered from Dandy Walker Syndrome. (Id. at
55.) Appellant only stated that he had headaches. (Id.) In fact, appellant
admitted that he was not diagnosed with Dandy Walker Syndrome until after
trial. (Id. at 13, 16.)
Id. at 55.) However, the report goes on to
Id.) Ms. Faust
included this report in the medical records which she turned over to
Dr. Weiss. (Id.) Dr. Weiss, a medical doctor, evaluated appellant and never
indicated any type of Dandy Walker Syndrome. (Id. at 57.)
Clearly, this issue lacks arguable merit. Appellant admits that he was
not diagnosed with Dandy Walker Syndrome until after trial, and the 1999
MRI report stated that it was likely of no significance. (Id. at 55.) Appellant
never told his attorneys that he suffered from Dandy Walker Syndrome.
-8-
J. S23014/14
They simply had no reason to pursue a diminished capacity defense based
self-serving testimony, there is no evidence that Dandy Walker Syndrome
causes an individual to become violent.
In his third issue on appeal, appellant argues that trial counsel was
ineffective for failing to call certain character witnesses on his behalf;
namely, Brad Sorkin, Richard Sorkin, and Barbara Smith. According to
appellant, these witnesses would have testified to his good character and
peaceful and hard-
To establish ineffectiveness for failure to call a
witness, Appellant must establish that: (1) the
witness existed; (2) the witness was available;
(3) counsel was informed of the existence of the
witness or counsel should otherwise have known of
him; (4) the witness was prepared to cooperate and
testify for Appellant at trial; and (5) the absence of
the testimony prejudiced Appellant so as to deny him
a fair trial. A defendant must establish prejudice by
demonstrating that he was denied a fair trial because
of the absence of the testimony of the proposed
witness.
, 849 A.2d 243, 249 (Pa.Super. 2004), appeal
denied, 860 A.2d 123 (Pa. 2004) (citations omitted).
Ms. Faust testified that she investigated all three of these witnesses,
and none of them would have given testimony particularly beneficial to
damaging. Smith told Ms. Faust that she has known appellant for ten years
and he has worked for her on and off at her bar. (Notes of testimony,
-9-
J. S23014/14
10/3/12 at 58.) Appellant used to be a responsible employee but recently,
just before this incident, appellant came into the bar and was upset and
crying. (Id.) Apparently, he had broken up with his girlfriend. (Id.) Smith
(Id.)
Richard Sorkin told Ms. Faust that she should speak with his son, Brad.
(Id.
character. (Id.) When she talked to Brad, Brad told her that, recently,
appellant was constantly getting into fights with the customers. (Id. at 61.)
Brad suspected appellant of using drugs and told him that he had to be clean
to work there. (Id.) Appellant never came back. (Id. at 61-62.)
Obviously, trial counsel had a good reason for not putting these
witnesses on the stand. It is doubtful they would have testified that
appellant was a person of good character and peaceable, as appellant
suggests. Furthermore, Ms. Faust explained that she had litigated a pre-trial
involving a police officer. (Id. at 51.) Similar to the instant case, appellant
stabbed his girlfriend and a police officer while under the influence of PCP.
(Id.
out. (Id. at 52.) However, Ms. Faust was concerned that by presenting
-abiding nature,
- 10 -
J. S23014/14
she would be opening the door to cross-
convictions for acts of violence. (Id. at 59-60.)
ounded. Admission of these prior
Therefore, she had a reasonable strategic basis for deciding not to call
character witnesses. Furthermore, the underlying claim lacks merit because
each of these witnesses, while stating that appellant used to be a reliable
and trustworthy employee, told Ms. Faust that recently appellant was acting
strangely and in violent fashion. It is doubtful that their testimony would
case.
Next, appellant argues that trial counsel was ineffective for failing to
call him as a witness. According to appellant, trial counsel never gave him
:
is ultimately to be made by the accused
after full consultation with counsel. In
order to support a claim that counsel was
must demonstrate either that (1) counsel
interfered
testify, or (2) counsel gave specific
advice so unreasonable as to vitiate a
knowing and intelligent decision by the
client not to testify in his own behalf.
Commonwealth v. Preston, 418 Pa.Super. 125,
613 A.2d 603, 605 (1992), appeal denied, 533 Pa.
658, 625 A.2d 1192 (1993) (quoting
Commonwealth v. Bazabe, 404 Pa.Super. 408,
- 11 -
J. S23014/14
590 A.2d 1298, 1301 (1991), appeal denied, 528
error absent a showing of specific incidents of
cou
Preston, supra at 605.
Commonwealth v. Thomas, 783 A.2d 328, 334-335 (Pa.Super. 2001).
Ms. Faust testified that appellant never asked to testify at trial. (Notes
of testimony, 10/3/12 at 64.) Appellant did testify at the suppression
hearing so he was well aware of his rights. (Id. at 63.) Appellant could not
remember the incident so it is unclear what he would have testified to. (Id.
at 64.) Furthermore, as stated above, appellant had prior convictions for
assaulting his girlfriend and a police officer while under the influence of PCP.
Ms. Faust was concerned that if appellant took the stand, these convictions
could come in as impeachment evidence. (Id.) In fact, appellant testified at
the PCRA hearing that after trial counsel advised him that by testifying, he
Counsel had a reasonable basis for advising appellant not to take the
stand. In addition, appellant never requested to testify. There is no
evidence that, as appellant suggests, trial counsel interfered with his right to
elected not to testify after consulting with trial counsel is supported by the
record. (PCRA court opinion, 1/31/13 at 9.) This claim fails.
- 12 -
J. S23014/14
In his fifth issue on appeal, appellant claims that trial counsel did not
allow him to participate in his defense. Appellant states that he disagreed
with voluntary intoxication as a defense, and wanted to present a defense of
ny,
10/3/12 at 49.) Either she or Ms. Douple met with appellant 31 times.
(Id.) Appellant was consulted on all decisions of consequence in the trial,
and provided with a copy of all the discovery. (Id. at 65.) She met with
appellant numerous times to discuss the case and trial strategy. (Id.)
As discussed above, there was no evidence that appellant suffered
from Dandy Walker Syndrome at time of trial and no basis for a diminished
capacity defense. There were numerous eyewitnesses to the murder, and
identity was not an issue. Counsel went with the only viable defense they
participate in the preparation of his defense is wholly without merit.
Finally, appellant argues that trial counsel was ineffective for failing to
Our standard of review with respect to jury
instructions is well settled. When reviewing a
challenge to part of a jury instruction, we must
review the jury charge as a whole to determine if it
is fair and complete. See Commonwealth v.
Hawkins, 549 Pa. 352, 390, 701 A.2d 492, 511
- 13 -
J. S23014/14
(1997). A trial court has wide discretion in phrasing
as long as the law is clearly, adequately, and
accurately presented to the jury for its
Id., at 391, 701 A.2d at 511. The
trial court commits an abuse of discretion only when
there is an inaccurate statement of the law. See id.Commonwealth v. Einhorn, 911 A.2d 960, 975 (Pa.Super. 2006), appeal
denied, 920 A.2d 831 (Pa. 2007).
During their deliberations, the jury came back with two questions
regarding voluntary intoxication; i.e.
the only way that it would be proper for me to
address the first question posed would be to restate
the definitions of first and third degree murder,
reminding the jury of the obligations of the
Commonwealth to prove the elements thereof
beyond a reasonable doubt, and then immediately in
conjunction therewith, offer the instruction on
voluntary intoxication as a defense to first degree
murder, so that the jury may see the interplay of
that defense and the obligations of the
Commonwealth to prove certain things beyond a
reasonable doubt.
Notes of testimony, 10/30/03 at 123-124. Both the Commonwealth and
defense counsel agreed with the trial court. (Id. at 124.) The trial court
then proceeded to review the definition of first-degree murder, the defense
of voluntary intoxication, and the elements of third-degree murder. (Id. at
125-132.)
- 14 -
J. S23014/14
Appellant complains that the trial court should have instructed the jury
that they must
me to advance anything that even sounded like an opinion concerning the
facts. And you would appropriately reject any such intrusion upon your
ntoxication in
reaching their verdict, which sounds like a judicial endorsement of
(Notes of testimony, 10/3/12 at 67-
re-read the relevant instructions was not an unreasonable response to the
ve for failing to object
thereto.
Furthermore, we observe that in re-instructing the jury, the trial court
- nt is
permitted to claim as a defense that he was so overpowered by intoxicants
or drugs that the defendant had lost control of his faculties, and was
incapable of forming the specific intent to kill, which as we have just
reviewed is required for first de
- 15 -
J. S23014/14
10/30/03 at 128-129.) The trial court also told the jury that the
Commonwealth has the burden of disproving the defense of voluntary
intoxication, which may reduce murder from first degree to third degree.
(Id. at 129-
and an accurate statement of the law, and trial counsel was not ineffective
for failing to object. This claim is without arguable merit.
For these reasons, we determine that the PCRA court did not err in
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2014
- 16 -