Opinion
J-S26036-13 No. 2993 EDA 2012
2013-09-10
COMMONWEALTH OF PENNSYLVANIA Appellee v. PHILLIP J. VONVILLE Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order of October 4, 2012
In the Court of Common Pleas of Monroe County
Criminal Division at No.: CP-45-CR-0001708-2009
BEFORE: FORD ELLIOTT, P.J.E., BENDER, J., and WECHT, J. MEMORANDUM BY WECHT, J.:
Philip J. Vonville ("Appellant") appeals from the October 4, 2012, order denying his petition pursuant to the Post-Conviction Relief Act ("PCRA"). After careful review, we affirm.
Appellant was charged with criminal homicide in connection with the September 19, 2009, stabbing death of Christopher Hernandez. Prior to trial, Appellant's trial counsel obtained a psychiatric evaluation of Appellant from Ilan Levinson, M.D.. Dr. Levinson's report indicated that Appellant potentially would qualify for a defense of diminished capacity, but not an insanity-related defense. PCRA Court Opinion ("P.C.O.") at 3. The Commonwealth filed a motion in limine to bar Appellant from presenting evidence of Appellant's mental state at trial. On June 22, 2010, the trial court granted the Commonwealth's motion on the basis that trial counsel had not filed a timely notice of diminished capacity defense pursuant to Pa.R.C.P. 568. On July 13, 2010, a jury found Appellant guilty of third-degree murder.
With regard to Appellant's state of mind, Dr. Levinson's report stated: "[Appellant] understands the charges against him and understands the role of his lawyer in his defense and the steps that he needs to take in order to cooperate with his lawyer . . . . [T]here are no gross psychiatric symptoms or cognitive defects that may interfere with his capacity to assist with his defense . . . . It appears that the insanity defense could not be argued, however he certainly meets the criteria for diminished capacity and the status of guilty but mentally ill." Psychiatric Evaluation Report, 3/18/2010, at 3-4 (emphasis removed).
On September 30, 2010, the trial court sentenced Appellant to twenty to forty years imprisonment. On October 12, 2010, Appellant filed a timely post-sentence motion alleging both that the trial court had erred in disallowing the testimony of Dr. Levinson and that Appellant's sentence was excessive. On March 8, 2011, the trial court denied Appellant's post-sentence motion. On April 1, 2011, Appellant filed a notice of appeal. On November 11, 2011, this Court affirmed the trial court's judgment of sentence.
On June 1, 2012, Appellant filed a pro se PCRA petition. The PCRA court appointed counsel ("PCRA counsel") to represent Appellant during the PCRA proceedings. On August 10, 2012, PCRA counsel filed an amended PCRA petition. On October 4, 2012, the PCRA court denied Appellant's petition. Appellant filed a notice of appeal on October 22, 2012. On October 23, 2012, the PCRA court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied on November 13, 2012. On November 15, 2012, the PCRA court filed an opinion pursuant to Pa.R.A.P. 1925(a).
Appellant raises the following issues for our consideration:
1. [Did] trial counsel render [Appellant] ineffective assistance of counsel by failing to provide the Commonwealth timely notice of a Diminished Capacity Defense prior to trial?
2. Was [Appellant] prejudiced by trial counsel's ineffective assistance of counsel to such a degree that no reliable adjudication of guilt or innocence could have taken place at [Appellant's] trial?
3. Whether the PCRA Court abused its [discretion] by not allowing [Appellant] to submit proof of [psychological] history?
4. Can third[-]degree murder be mitigated to manslaughter via a diminished capacity defense?Brief for Appellant at 2-3.
At the August 24, 2012, PCRA hearing, the Commonwealth actually objected to the introduction of Appellant's alleged psychological report on the basis of both relevance and hearsay. Notes of Testimony ("N.T."), 8/24/2012, at 32. Our review of the transcript of Appellant's PCRA hearing reveals ambiguity as to which objection ultimately was sustained. N.T. at 34. Since the Commonwealth addressed its hearsay objection last-in-time, and the PCRA court sustained on the basis of "that objection," we are reasonably confident that the objection sustained ultimately was the Commonwealth's hearsay objection. Id.
Although Appellant has listed four distinct issues in his concise statement, the substance of the arguments presented alleges two overall theories: (1) that trial counsel was ineffective for failing timely to file notice of a diminished capacity defense, thereby precluding Appellant from potentially receiving a verdict of voluntary manslaughter; and (2) that the PCRA court abused its discretion by not allowing Appellant to submit evidence of his psychological history at the PCRA hearing. Brief for Appellant at 5-14.
Initially, we address Appellant's first claim alleging ineffective assistance of counsel. Our standard of review regarding a PCRA court's order is well-settled. "[W]e examine whether the PCRA court's determination is supported by the evidence and is free of legal error." Commonwealth v. Smith, 995 A.2d 1143, 1149 (Pa. 2010); Commonwealth v. Williams, 732 A.2d 1167, 1176 (Pa. 1999).
To be entitled to PCRA relief, appellant must establish, by a preponderance of the evidence, his conviction or sentence resulted from one or more of the enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2), his claims had not been previously litigated or waived, and "the failure to litigate the
issue prior to or during trial . . . could not have been the result of any rational, strategic or tactical decision by counsel."Smith, 995 A.2d at 1149 (quoting 42 Pa.C.S. §§ 9543(a)(2)-(4)).
Counsel is presumed to be effective, and the burden of establishing ineffectiveness rests with Appellant. Commonwealth v. House, 537 A.2d 361, 363 (Pa. Super. 1988). Under the PCRA, a petitioner must demonstrate that counsel's alleged ineffectiveness so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. 42 Pa.C.S. § 9543(a)(2)(ii). In Pennsylvania, courts utilize a three-pronged test for ineffectiveness, which requires the petitioner to "demonstrate that (1) the underlying claim is of arguable merit; (2) counsel's performance was unreasonable; and (3) counsel's ineffectiveness prejudiced [the petitioner]." Commonwealth v. Beasley, 678 A.2d 773, 778 (Pa. 1996); see Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987).
A failure to plead and prove any prong of this test "require[s] rejection of the claim." Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002). Establishing prejudice requires that petitioner demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Pierce, 527 A.2d at 213 (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). "Where it is clear that [the petitioner] has failed to meet any of the three, distinct prongs of the [ineffectiveness] test, the claim may be disposed of on that basis alone, without a determination of whether the other two prongs have been met." Commonwealth v. Steele, 961 A.2d 786, 797 (Pa. 2008); see Commonwealth v. Basemore, 744 A.2d 717, 738 (Pa. 2000).
The parameters of the diminished capacity defense are well-defined: The defense is available only to defendants who admit criminal culpability and who contest solely their degree of guilt. Commonwealth v. Laird, 726 A.2d 346, 353 (Pa. 1999). "By asserting a diminished capacity defense, a defendant attempts to prove that he is incapable of forming the specific intent to kill. If the defendant is successful, first-degree murder is mitigated to third degree." Commonwealth v. Saranchak, 866 A.2d 292, 299 (Pa. 2005); see Commonwealth v. Legg, 711 A.2d 430, 433 (Pa. 1998).
Defendants who wish to assert a "defense of insanity or mental infirmity" are required to file notice pursuant to Pa.R.Crim.P. 568 within the "time required for filing an omnibus pretrial motion." Pa.R.Crim.P. 568(A)(1). "If the defendant fails to file . . . a notice of insanity or mental infirmity defense . . . the court may exclude entirely any evidence offered by the defendant for the purpose of proving the defense." Pa.R.Crim.P. 568(B)(1); see Commonwealth v. Cuevas, 832 A.2d 388, 393-94 (Pa. 2003).
On July 31, 2013, the Supreme Court of Pennsylvania approved a series of amendments to the Pennsylvania Rules of Criminal Procedure. In Re: Order Adopting New Rules 840-846, Amending Rules 568, 800, 807, and 809 and Approving the Revision of the Comment to Rule 808 of the Pennsylvania Rules of Criminal Procedure, 2013 Pennsylvania Court Order 0046 ("C.O. 0046"). Among those rules amended by C.O. 0046 was Pa.R.Crim.P. 568, which is directly at issue in the instant case. However, a careful comparison between the old and new language indicates that no substantive changes relevant to the outcome of this decision were announced in the July 31, 2013, order.
Appellant alleges that his trial counsel was ineffective by failing to file a timely notice of a diminished capacity defense. In this case, we need not determine whether Appellant's claim is of arguable merit or whether trial counsel's actions were reasonable, because Appellant cannot demonstrate prejudice. See Steele, supra. The PCRA court aptly and concisely summarized the fatal infirmity in Appellant's theory:
In this case, [Appellant] went to trial without benefit of the diminished capacity defense and was, nevertheless, convicted of [third-degree murder]. Because a diminished capacity defense can only reduce [first-degree murder to third-degree murder, Appellant's] verdict could not have been different even if his trial counsel had properly filed and presented a diminished capacity defense.P.C.O. at 8-9.
Although Appellant cites Legg in support of his ineffectiveness allegations, that case is inapposite. Brief for Appellant at 9-10. In Legg, a woman was convicted of first-degree murder in the death of her ex-husband. On appeal, the Supreme Court of Pennsylvania found that trial counsel was ineffective for failing to investigate a potential diminished capacity defense which "may have produced a verdict of third-degree murder" and ordered a new trial. Legg, 711 A.2d at 434-35. Instantly, Appellant could have no expectation of a potentially reduced verdict because he has already received the only benefit offered by a diminished capacity defense in Pennsylvania: A conviction for third-degree murder when the original crime charged is first-degree murder. Consequently, Appellant is unable to demonstrate prejudice arising from any alleged ineffectiveness of trial counsel. Appellant's first claim fails. Steele, 961 A.2d at 797.
Appellant devotes a significant portion of his brief to the argument that the crime of voluntary manslaughter should be compatible with the defense of diminished capacity. Brief for Appellant at 12-13. Specifically, Appellant "contends that his diminished capacity removed [his state of culpability], and that the only proper verdict which could have been obtained was voluntary manslaughter." Id. Appellant cites no persuasive legal authority to support this argument, and appears to conflate the elements of establishing voluntary manslaughter with the mitigation provided by a diminished capacity defense. Id. Pennsylvania case law indicates clearly that diminished capacity is a very limited defense that provides the potential only for mitigating first-degree murder down to third-degree murder. See Saranchak, 866 A.2d at 299; Legg, 711 A.2d at 433.
We turn now to Appellant's second allegation. There, Appellant asserts that the PCRA court abused its discretion when it barred him from presenting evidence of his psychological history. The evidence in question was part of a psychological evaluation of Appellant that allegedly was created by Delaware State Child Services on August 4, 1994. N.T. at 31-33. During the hearing, the PCRA court sustained an objection from the Commonwealth and ruled that the report was inadmissible hearsay on the basis that Appellant was attempting to offer the contents of the report for their truth. N.T. at 32-33. Appellant contends that the evidence was being offered merely to show: (a) that the psychological report existed, and (b) that it should have been offered into evidence by trial counsel during Appellant's trial. Brief for Appellant at 13-14.
This Court periodically has reviewed challenges to hearsay rulings made during PCRA hearings. See Commonwealth v. Thomas, 908 A.2d 351, 354-56 (Pa. Super. 2006); Commonwealth v. Bell, 706 A.2d 855, 861-62 (Pa. Super. 1998).
"The admissibility of evidence is within the sound discretion of the trial court, wherein lies the duty to balance the evidentiary value of each piece of evidence[.]" Commonwealth v. Chamberlain, 30 A.3d 381, 420 (Pa. 2011); see Commonwealth v. Flor, 998 A.2d 606, 623 (Pa. 2010). Such an abuse of discretion is not established "merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such a lack of support so as to be clearly erroneous." Commonwealth v. Travaglia, 28 A.3d 868, 873-74 (Pa. 2011) (quoting Commonwealth v. Laird, 988 A.2d 618, 646 (Pa. 2010)).
Moreover, "an erroneous ruling by a trial court on an evidentiary issue does not necessitate relief where the error was harmless beyond a reasonable doubt." Laird, 988 A.2d at 636; see Commonwealth v. Markman, 916 A.2d 586, 603 (Pa. 2007). An error will be deemed harmless if "the error did not prejudice the [Appellant] or the prejudice was de minimis." Commonwealth v. Young, 748 A.2d 166, 193 (Pa. 1999) (quoting Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa. 1998)).
"Hearsay is an out-of-court statement offered to prove the truth of the matter asserted." Bell, 706 A.2d at 861; see Commonwealth v. Jones, 610 A.2d 931 (Pa. 1992). Hearsay exists where the proponent offers the statement to prove the truth of the facts communicated in the statement itself. Bell, 706 A.2d at 861-62; see Commonwealth v. Darden, 457 A.2d 549 (Pa. Super. 1983). The rules governing hearsay apply as well to written documents and reports. Pa.R.E. 801(c)(1)-(2). Additionally, "[t]estimony as to an out of court statement, written or oral, is not hearsay if offered to prove, not that the content of the statement was true, but that the statement was made." Commonwealth v. Samuels, 340 A.2d 880, 886 (Pa. Super. 1975); see also Commonwealth v. Wright, 455 Pa. 480, 317 A.2d 271 (Pa. 1974).
Instantly, Appellant argues that the PCRA court should have allowed him to submit the psychological evaluation from Delaware as evidence that trial counsel "did not exercise due diligence in determining the extent of her client's mental illness." Brief for Appellant at 14. Appellant's contention is that the existence of this juvenile psychological report was evidence that trial counsel failed adequately to pursue a defense of diminished capacity. Id. Appellant cites no specific legal authority to support his challenge to the PCRA court's exclusion of the report, writing simply: "The records were not being offered for the truth of their content. Rather, the records were merely being introduced to show that they existed and that trial counsel did not exercise due diligence in determining the extent of her client's mental illness." Id. The Commonwealth replies that Appellant "completely failed to present evidence of this alleged mental health history in admissible form at the PCRA hearing." Brief for Commonwealth at 15-16.
When questioned as to the relevance and potential infirmity of the evidence at the August 24, 2012, PCRA hearing, PCRA counsel responded: "Well, the relevance . . . is that there is a number of different ways to mitigate third degree murder to manslaughter . . . . But certainly personality disorder, depression, a number of different things which were denied [Appellant] at trial are reasons to mitigate a third[-]degree malice killing to a manslaughter." N.T. at 32-33. PCRA counsel concluded that he "would like to at least be able to show for the record that these documents did exist." Id. at 33. It appears that Appellant was attempting to introduce the psychological report both for the purpose of proving its existence and for the truth of its content. PCRA counsel's remarks indicate that the contents of the report were of great import to Appellant's argument. It is difficult to discern a circumstance in which the PCRA court could accept as evidence the fact and existence of the Delaware report without also accepting as evidence the contents of that report; if the report did not relate to Appellant's mental capacity, it could not have been relevant.
In any event, inasmuch as Pennsylvania law allows the admission of evidence for limited purposes, see Bell, 706 A.2d at 861-62; Samuels, 340 A.2d at 886, it may be conceded here for argument's sake that Appellant may have a colorable argument that the Delaware psychological report was improperly excluded as hearsay by the PCRA court. However, any potential infirmity in the PCRA court's evidentiary ruling was harmless. See Young, 748 A.2d at 193; Robinson, 721 A.2d at 350. Specifically, Appellant is unable to demonstrate that the suppression of the Delaware psychological report prejudiced the outcome of the PCRA hearing. Prejudice is the relevant standard pursuant to harmless error in Pennsylvania. See Young, 748 A.2d at 193; Robinson, 721 A.2d at 350. Appellant has proffered no evidence and no cognizable legal argument demonstrating that the mere existence of the Delaware psychological report could have provided a foundation for anything more than a diminished capacity defense. Brief for Appellant at 1 - 14. Thus, Appellant is unable to demonstrate prejudice; even had the psychological report been admitted for limited purposes at the PCRA hearing, Appellant still would have been unable to demonstrate that he was entitled to any form of relief. As noted above, Appellant was convicted of third-degree murder, the best possible outcome available had Appellant asserted a diminished capacity defense at trial. See Saranchak, 866 A.2d at 299; Legg, 711 A.2d at 433. Thus, the improper exclusion of any evidence related to Appellant's potential for a diminished capacity defense at trial is harmless because Appellant already has received the full benefit available under such a defense. Appellant's second claim fails.
Order affirmed. Judgment Entered. ______________________
Prothonotary