J-S05017-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                        Appellee         :
                                         :
            v.                           :
                                         :
WILLIAM BROWN,                           :
                                         :
                        Appellant        :      No. 817 WDA 2014


              Appeal from the PCRA Order Entered April 7, 2014,
               In the Court of Common Pleas of Indiana County,
               Criminal Division, at No. CP-32-CR-000451-2010.


BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED FEBRUARY 10, 2015

      Appellant, William Brown, appeals from the order entered on April 7,

2014, that denied his petition for relief filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

      The PCRA court provided the following factual background:

            This matter came before the Court on [Appellant] William
      Brown’s Petition for Post-Conviction Collateral Relief pursuant to
      the Post-Conviction Collateral Relief Act (PCRA). A hearing on
      the Petition was held December 11, 2013. [Appellant’s]
      conviction stems from events occurring on February 28, 2010,
      when [Appellant] caused the death of his cellmate, Jayson
      Stewart, while both were incarcerated in the Restricted Housing
      Unit at SCI Pine Grove. Following a three-day jury trial ending on
      December 9, 2010, [Appellant] was found guilty of Murder of the
      First Degree and Aggravated Assault. He is currently serving a
      life sentence without parole at SCI Forest, in Marienville,
      Pennsylvania. [Appellant] was represented at trial by court-
      appointed counsel, Fred D. Hummel, Jr., and [Appellant] alleges
      that he was provided with ineffective assistance of counsel.
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PCRA Court Opinion, 4/8/14, at 1. The          PCRA     court   denied   Appellant’s

petition for relief.

        Following the denial of his PCRA petition, Appellant filed this timely

appeal where he raises the following issues for this Court’s consideration:

        I.     Whether trial counsel was ineffective in his representation
               of the Appellant in that he failed to:

               (a) fully utilize the volume of the psychiatric and medical
               evidence at his disposal to support the Appellant’s defense
               of diminished capacity;

               (b) fully utilize the evidence of the solitary confinement
               and “snitching” that weighed heavily on his mental health?

        II.    Whether trial counsel was ineffective for failing to utilize
               the prior history of mental illness along with the
               examination of Dr. Martone to show that the Appellant did
               not knowingly or intelligently waive His Miranda[1] rights?

        III.   Whether trial counsel was ineffective for not ensuring that
               the Appellant understood the significance of cooperating
               with the Commonwealth’s psychiatrist?

Appellant’s Brief at 4 (full capitalization omitted).

        Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).        The PCRA court’s findings will not be



1
    Miranda v. Arizona, 384 U.S. 436 (1966).

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disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

      When considering an allegation of ineffective assistance of counsel,

counsel is presumed to have provided effective representation unless the

PCRA petitioner pleads and proves that:         (1) the underlying claim is of

arguable merit; (2) counsel had no reasonable basis for his or her conduct;

and   (3)   Appellant   was   prejudiced   by   counsel’s   action   or   omission.

Commonwealth v. Pierce, 527 A.2d 973, 975-976 (Pa. 1987). “In order

to meet the prejudice prong of the ineffectiveness standard, a defendant

must show that there is a ‘reasonable probability that but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.’” Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012).

A claim of ineffective assistance of counsel will fail if the petitioner does not

meet any of the three prongs.       Commonwealth v. Williams, 863 A.2d

505, 513 (Pa. 2004).      “The burden of proving ineffectiveness rests with

Appellant.” Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007).

      Appellant first avers that counsel was ineffective at trial for failing to

utilize psychiatric and medical evidence from his prior involvement with

mental health professionals to support Appellant’s defense of diminished

capacity. We disagree with Appellant’s assertion.




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      At the outset, we note that Appellant concedes that trial counsel did

not   fail   to   present   evidence    of   Appellant’s   past   psychiatric   issues.

Appellant’s Brief at 12-13.       Rather, Appellant asserts that trial counsel

should have provided even more evidence of prior treatment for mental

illness. Id. Appellant goes on to claim that:

      A principle of trial practice coming from the erudite and
      entertaining Cornell University Law School Professor Irving
      Younger provides that if a jury hears a piece of evidence once
      they [sic] will probably not remember it, if they [sic] hear that
      evidence twice then it may enter into the jury’s discussion, but if
      they [sic] hear a third time, then they [sic] will probably accept
      and utilize that evidence in reaching their [sic] verdict.

Appellant’s Brief at 13-14.      We point out that there is no rule requiring

counsel to present evidence three times.           Appellant’s displeasure with the

manner in which trial counsel presented a defense, by itself, does not

amount to ineffectiveness, and the failure to be repetitive satisfies no

ineffective assistance of counsel standard of which this Court is aware. The

fact that Appellant now wishes trial counsel had provided repetitive evidence

and points to other medical records that “could have” been presented,

provides no basis for relief.          These bald assertions fail to establish a

reasonable probability that, but for these alleged deficiencies, the result of

the proceeding would have been different. Reed, 42 A.3d at 319.

      Moreover, trial counsel did provide evidence of Appellant’s psychiatric

issues and treatment, and the PCRA court concluded that there was a




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reasonable basis for counsel to refrain from pursuing the details of

Appellant’s prior treatment any further than he did. Trial counsel’s rationale

was that the past psychiatric treatment was as a result of prior crimes, some

of which were violent. The PCRA court addressed this issue as follows:

             [Appellant] argues that counsel failed to interview or call
      expert witnesses who previously treated him while he was
      confined prior to this matter. Counsel did call one expert
      witness, Dr. Martone, who testified on [Appellant’s] behalf that
      in her opinion he could not form specific intent due to his mental
      disabilities. The Commonwealth’s expert, Dr. Blumberg, offered
      testimony contradicting this finding and [Appellant] now claims
      that had other experts been called to support Dr. Martone’s
      conclusions it would have given them more weight. By failing to
      provide additional witnesses to bolster Dr. Martone’s testimony,
      [Appellant] alleges counsel was ineffective. He also alleges that
      counsel did not obtain his complete medical records, particularly
      his Department of Corrections records from 2009-2010. Counsel
      testified that Dr. Martone conducted tests with [Appellant] and
      discussed his past mental health history, beginning when he was
      first recognized as having difficulties at age eleven. [Appellant]
      also testified that he was honest with Dr. Martone about his
      history, including various confinements at a boot camp, mental
      health facilities, and state correctional institutions. Counsel
      maintains that medical records were obtained from 2001 to the
      date of the trial and because the records were available, it was
      not necessary for witnesses from any corresponding treatment
      centers to testify. Furthermore based on the fact that the
      majority of [Appellant’s] treatment records were connected with
      criminal activities, including firing a gun at a police officer,
      counsel did not believe it would be advantageous to open certain
      records. Counsel’s choice not to introduce potentially damaging
      information contained in [Appellant’s] records was a strategic,
      tactical decision in presenting his defense. This does not render
      counsel ineffective; therefore, this claim is without merit.

PCRA Court Opinion 4/8/14, at 3-4. We agree with the PCRA court. Trial

counsel did present evidence of Appellant’s mental health issues and


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presented evidence from an expert Dr. Martone, on these matters. The fact

that counsel did not present evidence that could potentially open the door to

details of Appellant’s criminal past was a strategic decision, and we discern

no error in the PCRA court’s decision on this issue.

         In the second part of Appellant’s first issue, Appellant attempts to

raise claims concerning the effect solitary confinement had on him and the

way Appellant was treated by other inmates while incarcerated at SCI Pine

Grove.      Appellant now contends that he was taunted and shunned as a

“snitch” because he had informed on an individual in an unrelated case and

that individual ended up being housed at SCI Pine Grove. Appellant’s Brief

at 24.

         Appellant argues that trial counsel failed to provide enough evidence

regarding the impact solitary confinement had on him, the way it may have

impacted      the   intent   to   kill,   and    the   resulting   diminished     capacity.

Appellant’s Brief at 24.      Appellant goes on to cite to five articles allegedly

espousing the deleterious effects that solitary confinement has on prisoners.

Id.   However, Appellant has failed to establish the existence of a witness

who was prepared and willing to testify as to how Appellant was allegedly

mistreated     by   other    inmates,      the    accuracy   and    application    of   the

aforementioned articles, the manner and degree to which Appellant’s mental

state was impacted, or how the absence of this testimony denied Appellant a




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fair trial.   See Commonwealth v. Walls, 993 A.2d 289, 302 (Pa. Super.

2010) (stating that in order to prevail on a claim of ineffectiveness for failing

to call an expert witness, the petitioner must prove 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).       Because

Appellant presented no evidence that satisfies these requirements, we

discern no error in the PCRA court denying relief on this claim.

       Next, Appellant avers that counsel was ineffective for not presenting

evidence concerning the way Appellant was treated by other inmates while

incarcerated at SCI Pine Grove and the effect that being labeled a snitch had

on him. However, upon review of the record, we note that this specific issue

was not raised in the PCRA court or in his Pa.R.A.P. 1925(b) statement of

errors complained of on appeal. Accordingly, this issue is waived. Pa.R.A.P.

1925(b)(4)(vii).2



2
  As set forth above, the issue concerning counsel’s alleged failure to present
evidence that Appellant’s mental state was diminished as a result of a co-
defendant being housed at the same SCI and the fact that Appellant endured
taunts and “grinding” as a result of being labeled a “snitch” is waived as it
was not properly preserved for appeal. We note, however, that on August
21, 2014, this Court received a motion for remand filed by Appellant’s
counsel. In that motion, Appellant sought to have our Court remand this
case to the PCRA court for a hearing on this additional claim of
ineffectiveness because it had not been properly raised on appeal. In an

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      Appellant next claims that trial counsel was ineffective for failing to

show that, due to his mental illness, Appellant did not knowingly and

intelligently waive his Miranda rights. Appellant claims that his statement

to Pennsylvania State Police Officers was coerced due to his mental illness,

his lack of intelligence, and an allegation that Appellant’s clothing was

withheld by prison officials until he made a statement regarding the murder

of his cellmate. Appellant’s Brief at 26-27.

      In deciding whether a defendant has validly waived his Miranda

rights, the trial court must determine: 1) whether the waiver was voluntary,

in the sense that the defendant’s choice was not the result of governmental

pressure; and 2) whether the waiver was knowingly and intelligently made,

in the sense that the decision was reached with full comprehension of both

the nature of the right being waived and the consequences of that choice.

Commonwealth        v. Kunkle, 79 A.3d 1173, 1180 (Pa. Super. 2013)

(citation omitted). Additionally, we point out that:


order filed on August 28, 2014, this Court denied Appellant’s motion for
remand without prejudice to Appellant’s ability to again make this motion
before this panel. However, the record reflects that Appellant did not renew
the motion before this panel. Nevertheless, had Appellant renewed the
motion, we would have concluded that no relief was warranted. Because
counsel raised PCRA counsel’s alleged ineffectiveness for the first time on
appeal from the order denying PCRA relief, it is unreviewable at this
juncture. See Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.
2014) (stating that “claims of PCRA counsel’s ineffectiveness may not be
raised for the first time on appeal.”) (citing, inter alios, Commonwealth v.
Jette, 23 A.3d 1032, 1044 n. 14 (Pa. 2011)).


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     Under Miranda, probative evidence, such as a confession, may
     be suppressed to punish and deter police misconduct, and
     thereby enforce constitutional protections. Thus, in the
     suppression realm, the focus is upon police conduct and whether
     a knowing, intelligent, and voluntary waiver was effected based
     on a totality of the circumstances, which may include
     consideration of a defendant’s mental age and condition, low IQ,
     limited education, and general condition. When a defendant
     alleges that his waiver or confession was involuntary, the
     question is not whether the defendant would have confessed
     without interrogation, but whether the interrogation was so
     manipulative or coercive that it deprived the defendant of his
     ability to make a free and unconstrained decision to confess.

Commonwealth v. Sepulveda, 55 A.3d 1108, 1136-1137 (Pa. 2012)

(internal citations and quotation marks omitted). However, there is no per

se rule that there can be no voluntary waiver when a person is mentally ill.

See Commonwealth v. Mitchell, ___ A.3d ___, 2014 WL 7150724, 677

CAP (Pa. 2014) (stating that defendants with proven psychological defects

are capable of waiving their constitutional rights and giving voluntary

confessions). Finally, a defendant’s prior experience with Miranda warnings

may be considered when determining whether the waiver of those rights was

knowing and voluntary. Commonwealth v. Hughes, 555 A.2d 1264, 1275

(Pa. 1989).

     Here, the PCRA court addressed this issue as follows:

           By his own testimony at the pre-trial suppression hearing,
     [Appellant] indicated that he understood his Miranda rights and
     admitted freely speaking to the troopers. He also testified that
     he was placed in an infirmary cell, but was given a smock to
     wear and that he was unsure if he took his medications. There is
     no indication that the interrogating troopers coerced him or that


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       the environment in which he was held would pressure him into
       making a statement. Furthermore, [Appellant] has an extensive
       history in the criminal justice system and is familiar with the
       nature and meaning of Miranda rights, which he admitted. For
       these reasons, [Appellant’s] statements cannot be considered to
       be involuntary. Counsel is not obligated to raise arguments that
       are not meritorious;[3] therefore there was no ineffectiveness of
       counsel for failing to make the arguments that [Appellant] now
       advances.

PCRA Court Opinion, 4/8/14, at 7.

       We agree with the PCRA court.     The record supports the conclusion

that Appellant knowingly and intelligently waived his Miranda rights. Upon

review, we discern no error in the PCRA court’s decision on this issue.

       Finally, Appellant claims that trial counsel was ineffective for not

ensuring that he understood the significance of cooperating with the

Commonwealth’s psychiatrist. We conclude that no relief is due.

       It is well settled that issues that are not developed or supported with

appropriate argument will be deemed waived. Commonwealth v. Garcia,

661 A.2d 1388, 1395-1396 (Pa. Super. 1995); Pa.R.A.P. 2119(b), (c) and

(d).    Because Appellant has failed to support this issue with proper

argument, we deem it to be waived. Id.




3
  See Commonwealth v. Destephano, 87 A.3d 361, 368 (Pa. Super.
2014) (reiterating the well-settled principle that counsel may not be deemed
ineffective for failing to pursue a meritless claim).

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     Assuming, for the sake of argument, that we were to address the

merits of this issue, we would affirm based on the rationale enumerated by

the PCRA court. The PCRA court addressed this issue as follows:

            [Appellant] next argues that counsel was ineffective for
     failing to advise him to cooperate with Dr. Blumberg, the
     Commonwealth’s expert in psychiatry. When Dr. Blumberg
     interviewed [Appellant], he attempted to have him complete
     tests, one of which was the Miller Forensic Assessment
     Symptoms Test (MFAST), which is used to determine if someone
     is malingering or faking symptoms. [Appellant] only partially
     completed the MFAST and then refused to continue with the
     remainder because he became frustrated with how lengthy it
     was and wanted to be finished. Based on his observations, Dr.
     Blumberg found that [Appellant] had borderline intellectual
     capabilities, but believed that he was not suffering from
     diminished capacity at the time of the murder. According to
     [Appellant], counsel did tell him Dr. Blumberg would be talking
     to him and administering tests, but did not specifically advise
     him that failure to cooperate could be used against him at trial.
     Counsel maintains that he did address the importance of the
     tests and the need for [Appellant] to do as Dr. Blumberg asked.
     Counsel testified that he was not concerned about [Appellant’s]
     possible refusal to cooperate because he was cooperative during
     his previous evaluation with Dr. Martone. [Appellant] has not
     offered any proof to support his claim that counsel did not inform
     him of the importance of completing Dr. Blumberg’s tests.
     Ineffectiveness of counsel cannot be shown merely by a “bald
     allegation” without further proof that counsel failed to inform a
     defendant of certain information. Commonwealth v. Alderman,
     811 A.2d 592, 596 (Pa.Super. 2002). (No ineffectiveness of
     counsel with allegation that defendant was not informed of his
     right to testify). Additionally, even if this Court were to accept
     [Appellant’s] version of events, he has presented no evidence
     indicating a reasonable probability that the proceedings would
     have had a different outcome had counsel given more specific
     advice regarding the testing.

PCRA Court Opinion, 4/8/14, 5-6.




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      For the reasons set forth above, we discern no error of law in the PCRA

court’s decision. Accordingly, we affirm the order denying Appellant’s PCRA

petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/10/2015




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