Opinion
783 WDA 2020
08-17-2021
COMMONWEALTH OF PENNSYLVANIA v. ROBERT A. MAIER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered June 29, 2020 In the Court of Common Pleas of Beaver County Criminal Division at No: CP-04- CR-0000195-2012
BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J. [*]
MEMORANDUM
MURRAY, J.
Robert A. Maier (Appellant) appeals from the order dismissing the petition he filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On direct appeal, this Court recited the facts underlying Appellant's convictions as follows:
In November of 2011, Appellant and his girlfriend, Ellen Rose ("Ellen"), had been in a romantic relationship for approximately twenty-three years. N.T., 3/22/13, at 224. The victim in this matter ("Victim") was Ellen's adult son, thirty-one-year-old Matthew Rose. Id. at 52. Victim and his wife Brandi Rose ("Brandi") had two young children. Id. at 150. Victim and Brandi were estranged due to Victim's substance abuse, but they were attempting to reconcile. Id. at 154. Appellant was upset about Victim's drug use, and he also suspected that Victim told the police that Appellant was selling marijuana. Id. At 237-239. . . .
[On] Saturday, November 26, 2011, . . . Appellant arrived at Ellen's house intoxicated at approximately 2:30 p.m. N.T., 3/22/13, at 170. Appellant, Brandi, and Victim convened in the kitchen. Id. Brandi and Appellant were talking while Victim read a newspaper. Id. at 176. Appellant began commenting on Brandi's decision to reconcile with Victim, and Appellant shared his belief that Victim informed the police about Appellant's marijuana dealing. Id. at 177-178. Victim gave no response and continued to read the newspaper. Id. Appellant then pulled out a handgun and pointed it at Victim. Id. at 178. Appellant took several steps toward Victim and fired the weapon at Victim. Id. at 179. The bullet struck Victim in the side, and Victim and Brandi fled outside the house. Id.
Appellant followed Victim and Brandi outside, and while Victim was moving toward a fence, Appellant shot him in the back. Id. at 185. Despite having been shot twice, Victim attempted to climb the fence, and Appellant fired a third shot striking Victim in the lower back causing him to fall. Id. at 186-188. The first shot pierced Victim's liver, and the third shot pierced the liver and cut a furrow through Victim's heart. N.T., 3/25/13, at 191-194. Victim died as a result of the third gunshot wound. Id. Appellant was arrested later that day, and police recovered the murder weapon from his truck. N.T., 3/22/13, at 89.Commonwealth v. Maier, 970 WDA 2014, *1-3 (Pa. Super. May 20, 2015) (unpublished memorandum).
On March 27, 2013, a jury found Appellant guilty of first-degree murder and possession of a firearm with an obliterated serial number. The trial court sentenced Appellant on May 2, 2013 to life in prison. Appellant filed a timely post-sentence motion on May 7, 2013, and the trial court granted Appellant permission to file a supplemental post-sentence motion. On August 19, 2013, the trial court denied Appellant's post-sentence motions. Appellant filed a notice of appeal with this Court; however, we dismissed the appeal on February 10, 2014, due to Appellant's failure to file a brief.
On April 21, 2014, Appellant filed a timely PCRA petition seeking the reinstatement of his direct appeal rights nunc pro tunc. By order filed May 12, 2014, the PCRA court reinstated Appellant's direct appeal rights, and on June 11, 2014, Appellant filed a timely, direct appeal nunc pro tunc. This Court affirmed Appellant's judgment of sentence and Appellant did not seek allowance of appeal with the Pennsylvania Supreme Court. See Maier, supra.
On March 4, 2016, Appellant filed a pro se PCRA petition. The PCRA court promptly appointed counsel. However, for reasons unclear from the record, PCRA counsel did not file an amended petition until July 15, 2019. On December 12, 2019, the PCRA court issued notice of intent to dismiss Appellant's petition without a hearing pursuant to Pa.R.Crim.P. 907, with an accompanying opinion addressing the issues raised in Appellant's amended petition. Appellant filed an untimely response. The PCRA court dismissed Appellant's petition without a hearing on June 29, 2020. Appellant timely appealed. The court did not order Appellant to file a Pa.R.A.P. 1925(b) concise statement. On September 17, 2020, the PCRA court filed a Pa.R.A.P. 1925(a) opinion stating that its reasons for denying the petition were set forth in its order and opinion filed December 12, 2019, and it would not issue an additional opinion.
On January 28, 2020, the PCRA court granted Appellant's motion for an extension of time to file a response to the court's notice. The court permitted Appellant "to file any response to the Court's Opinion and Order of Intent to Dismiss His Amended Post Conviction Relief Act Petition Without Hearing within 30 days of the date of this Order." Order, 1/28/20. Appellant filed his response on April 30, 2020.
Appellant presents five issues on appeal:
I. Whether prior legal counsel provided ineffective assistance of counsel in failing to request Jury Instructions on existing evidence in the record as to (1) [Appellant's] good character for peacefulness and/or truthfulness and (2) [Appellant's] diminished capacity to First Degree[?]
II. Whether prior legal counsel provided ineffective assistance of counsel in failing to (1) elicit competent testimony from testifying witnesses and (2) locate, secure the attendance of, and present competent testimonial evidence from additional non-testifying witnesses of [Appellant's] good character for peacefulness, non-violence and/or truthfulness[?]
III. Whether prior legal counsel provided ineffective assistance of counsel in failing to retain, or alternatively to seek court ordered funding to retain, an expert specialist in mental states to conduct a psychiatric and/or psychological evaluation of [Appellant] to determine his prior psychological and psychiatric history, including drug and alcohol abuse and/or mental health illnesses, in order to marshal evidence of his state of mind at the time of his actions during the incident to provide a defense to First Degree Murder of (1) Intoxication and (2) Diminished Capacity[?]
IV. Whether the Trial Court violated [Appellant's] Due Process Rights And/or Rights to Fundamental Fairness by failing or refusing, sua sponte, to properly and adequately charge the jury as to [Appellant's] good character for peacefulness and/or truthfulness existing on the Record[?]
V. Whether the Trial Court violated [Appellant's] Rights to Assistance of Legal Counsel, Due Process, And/or Fundamental Fairness by failing or refusing [to] provide court ordered funding to retain, for the P.C.R.A. proceedings, an expert specialist in mental states to conduct a psychiatric and/or psychological evaluation of [Appellant] to determine his prior psychological and psychiatric history, including drug and alcohol abuse and/or mental health illnesses, in order to marshal evidence of his state of mind at the time of his actions during the incident to provide a defense to first degree murder of (1) intoxication and (2) diminished capacity, as said expert opinions bear on the ineffectiveness of prior legal trial counsel to fail to request court ordered funding to retain such an expert[?]Appellant's Brief at 5-6.
In reviewing the PCRA court's dismissal of Appellant's petition, we examine "whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error." Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012). "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 party who prevailed in the PCRA court proceeding." Id.
Appellant challenges the effectiveness of trial counsel. In deciding such claims, we begin with the presumption that counsel rendered effective assistance. Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that presumption, the petitioner must establish: "(1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's action or failure to act; and (3) the petitioner suffered prejudice as a result of counsel's error, with prejudice measured by whether there is a reasonable probability that the result of the proceeding would have been different." Id. (citation omitted). A PCRA petitioner must address each of these prongs on appeal. See Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007) (explaining "appellants continue to bear the burden of pleading and proving each of the Pierce elements on appeal to this Court"). A petitioner's failure to satisfy any prong of this test is fatal to the claim. Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018).
We have reviewed the record mindful of the legal authority cited above. The crux of Appellant's overall argument in his five issues is that trial counsel was ineffective for failing to request a jury instruction on diminished capacity, and for failing to present witnesses to testify about Appellant's good character and reputation for peacefulness. Appellant argues he "suffered from depression and panic attacks, aided not really by prescription medication but by self medicating with alcohol and marijuana; and his level of depression and anxiety peaked causing insomnia in the days prior to the incident." Appellant's Brief at 11. Appellant asserts he had "no intention of shooting" the Victim, "he just lost control." Id. at 12.
Additionally, Appellant states that "[v]irtually every Commonwealth witness testifying knew [Appellant] and each other and confirmed that [Appellant] was a person of good character for the traits of (1) peacefulness/non-violence and (2) truthfulness." Id.
In response, the Commonwealth cites the record and prevailing law in cogently arguing that Appellant's issues lack merit. See Commonwealth Brief at 13-41. Furthermore, the Honorable Richard Mancini, sitting as the PCRA court, has authored a comprehensive 27-page opinion which specifically explains why Appellant's issues and arguments do not merit relief. For example, President Judge Mancini accurately states, "where a defendant raises a defense to first degree murder that he lacked the specific intent to kill the victim, the defendant admits the fact that he shot and killed the victim (he admits criminal liability), and character evidence regarding the defendant's character for peacefulness is inadmissible." PCRA Court Opinion, 12/12/19, at 16 (footnote 38, citing Commonwealth v. Kim, 888 A.2d 847, 853-54 (Pa. Super. 2005), omitted).
President Judge Mancini also references the "wealth of testimony" and reasons:
Given the evidence presented at trial, it does not appear to this Court that [Appellant] presented sufficient evidence to warrant an instruction of diminished capacity. No expert testimony was provided to evidence a causal link between [Appellant's] depression and anxiety conditions [and] their effect on the cognitive functions necessary to form specific intent. No explanation by [Appellant] was provided as to the causal nexus. No other witnesses provided lay testimony regarding [Appellant's] conditions or their effect on [Appellant's] cognitive functions. Furthermore, [Appellant] himself stated that he "totally lost control," which is testimony concerning his inability to control his actions; inadmissible to establish a diminished capacity defense as it does not negate specific intent.
PCRA Court Opinion, 12/12/19, at 15 (footnote omitted). President Judge Mancini additionally observes that trial counsel did request, and the trial court gave the jury, an instruction as to voluntary intoxication, "which practically speaking, deals with the same issue of lack of capacity to form specific intent as the diminished capacity instruction, except that the underlying condition is drunkenness rather than some mental disorder." Id. The court emphasized that despite this instruction, the jury found Appellant guilty of first-degree murder, concluding that Appellant possessed the specific intent to kill the Victim. Id.
Upon review, we find no merit to Appellant's claims of error by trial counsel and the PCRA court. Further, the PCRA court opinion properly addresses and resolves Appellant's issues, such that further commentary by this Court would be redundant. We therefore adopt the PCRA court's December 12, 2019 PCRA Opinion and Order as our own in disposing of this appeal, and direct the parties to attach a copy of the opinion to any relevant future filings.
Order affirmed.
Judgment Entered.
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[*] Retired Senior Judge assigned to the Superior Court.