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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
                                            :
ALLEN GORE,                                 :
                                            :
                          Appellant         :     No. 1411 EDA 2013


                   Appeal from the PCRA Order April 19, 2013
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0905541-2003

BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                    FILED NOVEMBER 24, 2014

        Appellant, Allen Gore, appeals from the order denying, without a

hearing, his first Post Conviction Relief Act (PCRA)1 petition entered in the

Philadelphia County Court of Common Pleas. This Court previously vacated

the PCRA court’s earlier order reinstating Appellant’s direct appeal rights and

remanded for further proceedings.2        Appellant presently claims his prior

counsel were ineffective for failing to preserve an appellate challenge to the




*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
  Commonwealth v. Gore, 2981 EDA 2011 (unpublished memorandum)
(Pa. Super. Aug. 2, 2012).
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sufficiency of the evidence and a challenge the weight of the evidence. We

affirm.

        Appellant was found guilty but mentally ill of, inter alia, first-degree

murder3 for killing his father, William Gore (“decedent”), on August 18,

2002.4 On that day, Appellant’s mother left Appellant and the decedent at

their home at 3:00 p.m. When she returned at 6:00 p.m., the front door

was locked, and Appellant opened the door for her after she called through

the mail slot. She then discovered the decedent bleeding and nonresponsive

in his bed. Appellant’s mother telephoned her other son to come over and

attempted to resuscitate the decedent. Appellant, in the meantime, left the

home.      Police officers responded to the scene and found an aluminum

baseball bat under Appellant’s bed. Appellant’s mother told the officers that

Appellant was angry at the decedent for letting their dog out earlier in the

day.

        At 7:30 p.m., Appellant entered the Philadelphia Police Administration

building and told the officer at the front desk he wanted to turn himself in

because he struck his father with a baseball bat. At trial, the officer testified

that Appellant told him the decedent “came up to him and said that he was


3
    18 Pa.C.S. §§ 314, 2502(a).
4
  The decedent was eighty-three years old and suffered from amyotophic
lateral sclerosis (“ALS”). He drank alcohol on the morning before Appellant
attacked him and was carried to his upstairs bedroom by Appellant’s mother
and Appellant’s brother.



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the devil.” N.T., 10/28/04, at 134-35, 138. The officer called for assistance.

One of the responding officers testified that Appellant reported he beat the

decedent after the decedent called him the devil and then put the baseball

bat he used under his bed.      Appellant was taken to the homicide unit for

interrogation.

        Appellant waived his Miranda5 rights and gave a statement that was

transcribed by the interrogating detective. Appellant reported he was being

treated for “[b]ipolar, manic depressive schizophrenia, psycho affective

psychosis.”      N.T, 10/29/04, at 23.      According to Appellant, after the

decedent was diagnosed with ALS, the decedent called himself the devil and

Appellant Jesus Christ.     Id. at 26.   Appellant stated the decedent stuck

needles in Appellant’s eyes at night and used mental telepathy against him.

Id. Appellant prayed every night for “God to get it over with.”    Id. at 26.

        Appellant told the interrogator that that on the morning of the killing,

he called the decedent a “dickhead” after the decedent let the dog out of the

home. Id. at 24. Later that day, the decedent came downstairs and “said

you know I’m the devil, right?” Id. at 25. The decedent spat and laughed

at Appellant. Appellant went to his room and noticed he had money in his

pockets.    He then left the home and purchased the baseball bat from a

sporting goods store. When he returned to the home, he went back to his

room, listened to music, and “wrote something in [his] book[.]”        Id.      He

5
    Miranda v. Arizona, 384 U.S. 436 (1966).



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then hit decedent once on the head and twice in the back. Id. He wiped off

the bat and his hands with a towel. Id. at 26.

     Appellant was found incompetent to stand trial, and the trial court

entered commitment orders from September 24, 2002, to June 3, 2003.

Thereafter, a preliminary hearing was held on September 3, 2003, and a

jury trial on the charges of homicide and related offenses commenced on

October 28, 2004.

     At trial, Appellant raised an insanity defense.    Appellant’s mother

testified for the defense and described Appellant’s social and medical

background, which included: (1) having behavioral problems beginning when

he was fifteen years old; (2) watching his friend killed in a robbery, (3)

destroying the interior of the home, which, on one occasion, resulted in a

stand-off with SWAT officers, (4) being voluntarily and involuntarily

committed for mental health reasons on numerous occasions, and (5) being

shot after claiming he was the devil and engaging in an altercation with

another individual.   Appellant’s mother stated he was not taking his

medications before he killed the decedent.

     The defense also called Dr. Pogos Voskanian, a forensic psychiatrist.

Dr. Voskanian noted Appellant was found incompetent after killing his father

and committed to a mental health institution before trial.      The doctor

indicated that Appellant suffered “schizophrenia of paranoid type and post-

traumatic stress disorder” and met clinical criteria for temporal lobe



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epilepsy.     N.T., 11/1/04, at 49-50.     Dr. Voskanian opined Appellant was

incapable of differentiating right and wrong at the time of the incident given

Appellant’s belief the decedent was the devil. Id. at 51.

        In rebuttal, the Commonwealth called a forensic psychiatrist, Dr. John

O’Brien.     Dr. O’Brien conceded that Appellant had trouble conforming his

conduct to the law.        He opined, however, that Appellant’s actions—i.e.,

locking the front door, killing the decedent, wiping blood from the bat and

his hand, hiding the bat under his bed, and then turning himself in to

police—evinced his knowledge that the killing was wrong. Id. at 175-76.

        The PCRA court summarized the remaining procedural history of this

case.

               On November 2, 2004, following a jury trial before the
            Honorable Jane Cutler Greenspan, [Appellant] was found
            guilty but mentally ill of one count of murder of the first
            degree (18 Pa.C.S. § 2502(a)), and one count of
            possessing an instrument of crime (“PIC”) (18 Pa.C.S. §
            907(a)). The Court immediately imposed the mandatory
            sentence of life in prison for the murder charge (18 Pa.C.S.
            § 1102(a)(1) & 42 Pa.C.S. § 9727(a)) and a concurrent
            sentence of one to two years incarceration for the PIC
            charge. No post-sentence motions were filed. On
            December 4, 2004, [Appellant] filed a Notice of Appeal. On
            March 15, 2005, [Appellant’s] appeal was dismissed due to
            the defense attorney’s failure to file a docketing statement,
            pursuant to Pa.R.A.P. [ ]3517.              [Appellant] was
            represented at trial and on direct appeal by James Gross,
            Esquire.

               On April 20, 2006, [Appellant] filed a pro se petition
            pursuant to the Post-Conviction Relief Act (“PCRA”).
            [Appellant] filed an additional pro se PCRA petition on May
            3, 2006. On June 20, 2006, Gary Server, Esquire, was
            appointed to represent [Appellant]. On September 27,


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       2006, Mr. Server filed an Amended PCRA Petition on behalf
       of [Appellant], requesting reinstatement of [Appellant’s]
       appellate rights nunc pro tunc. Judge Greenspan granted
       the petition on October 6, 2006, reinstating [Appellant’s]
       right to appeal. [Appellant] filed a Notice of Appeal on
       October 26, 2006, and raised claims based on the weight
       and sufficiency of the evidence. On November 1, 2007,
       the Superior Court affirmed [Appellant’s] judgment of
       sentence, finding that [his] weight of the evidence claim
       was waived because it was not raised in the trial court, and
       that [his] sufficiency of the evidence claim was waived
       both because the necessary notes of testimony from the
       original trial were not transmitted as part of the record,
       and due to inadequate development of the claim in [his
       counseled] appellate brief. [Commonwealth v. Gore,
       3128 EDA 2006 (unpublished memorandum) (Pa. Super.
       Nov. 1, 2007).      Appellant’s] Petition for Allowance of
       Appeal to the Supreme Court was denied on April 16,
       2008. [Commonwealth v. Gore, 678 EAL 2007 (Pa. Apr.
       16, 2008)]

           [Appellant] filed a third pro se petition on June 17,
       2008. As Judge Greenspan had retired, [Appellant’s] PCRA
       was reassigned to the Honorable Renee Cardwell Hughes.
       On August 6, 2009, Lee Mandell, Esquire, was appointed to
       represent [Appellant]. On January 26, 2010, Mr. Mandell
       filed an Amended PCRA Petition on behalf of [Appellant], in
       which he sought the right to file a second direct appeal
       nunc pro tunc. On July 5, 2011, after Judge Hughes’s
       retirement from the bench, [Appellant’s] PCRA was
       reassigned to the undersigned [PCRA] judge. On
       September 19, 2011, this Court granted [Appellant’s]
       Amended Petition and ordered that [Appellant’s] right to a
       direct appeal be reinstated.

          On August 2, 2012, the Superior Court [vacated the
       PCRA order granting the direct appeal nunc pro tunc.
       Gore, 2981 EDA 2011, at 9.]           The Superior Court
       remanded the matter to the PCRA Court to “conduct its
       analysis of Appellant’s claims pursuant to the strictures of
       the PCRA.” [Id. at 9].

         On November 14, 2012, Mr. Mandell filed a
       Supplemental PCRA Petition (“Amended Petition”) raising


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         one claim of trial counsel ineffectiveness and one claim of
         appellate counsel ineffectiveness. Amended Petition at ¶¶
         8(a)-(b).     On February 15, 2013, after reviewing
         [Appellant’s] PCRA Petition and the Commonwealth’s
         Motion to Dismiss, this Court ruled that the claims set forth
         in [Appellant’s] petition were without merit. On that day,
         pursuant to Pa.R.Crim.P. 907, the Court issued notice of its
         intent to dismiss the petition without a hearing (“907
         Notice"). On February 20, 2013, [Appellant] mailed a
         letter to the PCRA Court that contained a litany of
         complaints, none of which was germane to the PCRA
         Petition pending before the Court. On April 5, 2013, the
         Court entered an order dismissing [Appellant’s] PCRA
         Petition.

PCRA Ct. Op., 7/16/13, at 1-3 (footnote omitted). This appeal followed.

      Appellant presents the following question for review:

         Did the Honorable PCRA Court err when it denied
         [Appellant’s] Amended PCRA Petition and Supplemental
         Amended PCRA Petition without a hearing, but where the
         [Appellant] pled, and would have been able to prove, that
         he was entitled to relief as the result of ineffective
         assistance of trial counsel and appellate counsel?

Appellant’s Brief at 3.

      Appellant first argues that prior appellate counsel was ineffective for

failing to brief a challenge to the sufficiency of the evidence in light of his

insanity defense.6   He asserts “if this issue had been properly briefed and


6
  As the PCRA court noted, Appellant’s Rule 1925(b) statement set forth a
challenge to the sufficiency of the evidence sounding in direct error rather
than ineffective assistance of counsel. We agree with the court’s conclusion
that a direct claim challenging the sufficiency of the evidence is waived
under the PCRA. See 42 Pa.C.S. § 9544(b). The court also opined that
Appellant’s challenge could be considered within the framework of an
ineffectiveness claim and addressed it as such. PCRA Ct. Op. at 6. We
decline to find waiver based on a defective Rule 1925(b) statement and



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raised in the Superior Court . . . , the Superior Court most likely would have

granted [him] an arrest of judgment and, hence, [he] has been grossly

prejudiced.” Id. at 17. No relief is due.

      The principles governing our review are

         well settled: “In addressing the grant or denial of post-
         conviction relief, an appellate court will consider whether
         the PCRA court’s conclusions are supported by record
         evidence and are free of legal error.” To be entitled to
         PCRA relief, a petitioner must establish, by a
         preponderance of the evidence, his conviction or sentence
         resulted from one or more of the errors found in 42
         Pa.C.S. § 9543(a)(2) . . . .

         . . . To be entitled to relief on an ineffectiveness claim, [a
         petitioner] must prove the underlying claim is of arguable
         merit, counsel’s performance lacked a reasonable basis,
         and counsel’s ineffectiveness caused him prejudice.
         Prejudice in the context of ineffective assistance of counsel
         means demonstrating there is a reasonable probability
         that, but for counsel’s error, the outcome of the
         proceeding would have been different. . . . Failure to
         establish any prong of the test will defeat an
         ineffectiveness claim.

Commonwealth v. Keaton, 45 A.3d 1050, 1060-61 (Pa. 2012) (citations

and footnote omitted). Moreover, “[a] PCRA petitioner is not entitled to an

evidentiary hearing as a matter of right, but only where the petition presents

genuine issues of material fact.    A PCRA court’s decision denying a claim

without a hearing may only be reversed upon a finding of an abuse of

discretion.” Id. at 1094 (citations omitted). This Court may affirm if there



review the trial court’s consideration of his claim based on prior appellate
counsel’s alleged ineffectiveness.



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is   any   basis   on   the   record       to   support   the   PCRA   court’s   action.

Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa. Super. 2005).

      The Pennsylvania Supreme Court summarized the legal principles

underlying a verdict of guilty but mentally ill.

           [A] verdict of guilty but mentally ill is authorized by
           Section 314 of the Crimes Code, as follows:

             (a) General rule.—A person who timely offers a
             defense of insanity in accordance with the Rules of
             Criminal Procedure may be found “guilty but
             mentally ill” at trial if the trier of facts finds,
             beyond a reasonable doubt, that the person is
             guilty of an offense, was mentally ill at the time
             of the commission of the offense and was not
             legally insane at the time of the commission of
             the offense.

                                       *        *   *

             (c) Definitions.—For the purposes of this section
             and 42 Pa.C.S. § 9727 (relating to disposition of
             persons found guilty by mentally ill):

                   (1) “Mentally ill.” One who as a result of
                   mental disease or defect, lacks substantial
                   capacity either to appreciate the wrongfulness
                   of his conduct or to conform his conduct to the
                   requirements of the law.

                   (2) “Legal insanity.” At the time of the
                   commission of the act, the defendant 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 doing or, if he did
                   know it, that he did not know he was doing
                   what was wrong.

           18 Pa.C.S. § 314. . . . Section 314(a) does not impose a
           burden of proof concerning a defendant’s mental illness on
           either party, but rather, is implicated where an insanity


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        defense fails but evidence of the defendant’s mental illness
        nevertheless “preponderates.”      The insanity defense is
        provided for in Section 315 of the Crimes Code, as follows:

           (a) General Rule.—The mental soundness of an
           actor engaged in conduct charged to constitute an
           offense shall only be a defense to the charged
           offense when the actor proves by a preponderance of
           the evidence that the actor was legally insane at the
           time of the commission of the offense.

           (b) Definition.—For purposes of this section, the
           phrase “legally insane” means 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 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. § 314.

Commonwealth v. Rabold, 951 A.2d 329, 330-31 (Pa. 2008) (some

citations and footnote omitted) (emphasis added).

     The initial burden of establishing an insanity defense is on the

defendant, but once raised, the Commonwealth may rebut the claim by

proving the defendant’s sanity.    See Commonwealth v. Yasipour, 957

A.2d 734, 739 (Pa. Super. 2008).   The Commonwealth can establish “sanity

not only by psychiatric testimony but also by lay testimony which shows that

he or she knew the nature and quality of the act committed and knew that

what had been done was wrong.” Id. (citation omitted).

     We are also mindful that

        the standard we apply in reviewing the sufficiency of the
        evidence is whether viewing all the evidence admitted at


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        trial in the light most favorable to the verdict winner, there
        is sufficient evidence to enable the fact-finder to find every
        element of the crime beyond a reasonable doubt. In
        applying the above test, we may not weigh the evidence
        and substitute our judgment for the fact-finder.            In
        addition, we note that the facts and circumstances
        established by the Commonwealth need not preclude every
        possibility of innocence. Any doubts regarding a
        defendant’s guilt may be resolved by the fact-finder unless
        the evidence is so weak and inconclusive that as a matter
        of law no probability of fact may be drawn from the
        combined circumstances. The Commonwealth may sustain
        its burden of proof [of] proving every element of the crime
        beyond a reasonable doubt by means of wholly
        circumstantial evidence. Moreover, in applying the above
        test, the entire record must be evaluated and all the
        evidence actually received must be considered. Finally,
        the trier of fact while passing upon the credibility of
        witnesses and the weight of the evidence produced, is free
        to believe all, part or none of the evidence.

Commonwealth v. Lehman, 820 A.2d 766, 772 (Pa. Super. 2003)

(citations omitted).    “Furthermore, it is within the factfinder’s right to

disbelieve an insanity defense[.]”     Yasipour, 957 A.2d at 739 (citation

omitted).

     Instantly, we agree with Appellant that he presented sufficient

evidence to raise an insanity defense.         However, the Commonwealth

presented rebuttal expert evidence regarding Appellant’s mental state at the

time of the incident.     Dr. O’Brien testified that even if Appellant was

delusional at the time of the killing, he was capable of forming a specific

intent to kill and differentiating right and wrong.     The Commonwealth’s

rebuttal evidence was not so weak or inconclusive that no probability of fact

regarding Appellant’s sanity could be drawn.    Thus, the jury was entitled to


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disbelieve Appellant’s evidence and credit the Commonwealth’s rebuttal

evidence, and an appellate court would not reweigh the evidence when

considering Appellant’s underlying sufficiency argument.        See Yasipour,

957 A.2d at 739; Lehman, 820 A.2d at 772. Accordingly, we agree with the

PCRA court that Appellant failed to establish arguable merit to his claim that

prior appellate counsel was ineffective for failing to preserve a challenge to

the sufficiency of the evidence.

      Appellant next argues the PCRA court erred when considering his claim

that trial counsel was ineffective for failing to challenge the weight of the

evidence. He contends that trial counsel’s failure to preserve a weight of the

evidence challenge in the trial court resulted in waiver of a meritorious issue

and that he is presently entitled to PCRA relief. See Appellant’s Brief at 18-

20. We disagree.

      The principles governing a challenge to the weight of the evidence are

well settled.

             A verdict is against the weight of the evidence “only
         when the jury’s verdict is so contrary to the evidence as to
         shock one’s sense of justice.” A weight of the evidence
         claim is primarily directed to the discretion of the judge
         who presided at trial, who only possesses “narrow
         authority” to upset a jury verdict on a weight of the
         evidence claim. Assessing the credibility of witnesses at
         trial is within the sole discretion of the fact-finder. A trial
         judge cannot grant a new trial merely because of some
         conflict in testimony or because the judge would reach a
         different conclusion on the same facts, but should only do
         so in extraordinary circumstances, “when the jury’s verdict
         is so contrary to the evidence as to shock one’s sense of



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         justice and the award of a new trial is imperative so that
         right may be given another opportunity to prevail.” . . .

Commonwealth v. Blakeney, 946 A.2d 645, 652-53 (Pa. 2008) (citations

omitted).

      “[T]he role of the trial judge is to determine that ‘notwithstanding all

the facts, certain facts are so clearly of greater weight that to ignore them or

to give them equal weight with all the facts is to deny justice.’”

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation omitted).

An appellate court reviews the exercise of discretion by the trial court, “not .

. . the underlying question of whether the verdict is against the weight of the

evidence.” Id. (citation omitted).

      Instantly,   the    parties   presented    divergent   expert   opinions   on

Appellant’s ability to form the specific intent to kill and appreciate the

wrongfulness of his actions.         The defense and Commonwealth experts

attached different significance to Appellant’s actions before and after killing

the decedent and reached opposite conclusions. We are mindful that a mere

conflict in the evidence does not give rise to a meritorious weight of the

evidence challenge.      Under the circumstances of this case, however, we

cannot conclude that a challenge to the weight of the evidence lacked

arguable merit.

      Nevertheless, after review of the record, we are not convinced that

Appellant’s   expert     evidence   was   of    such   greater   weight   than   the

Commonwealth’s expert evidence that the jury’s decision, to credit the


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Commonwealth’s evidence and find Appellant was not legally insane, denies

justice or shocks the court’s conscience.         See Clay, 64 A.2d at 1055.

Accordingly, we cannot conclude that Appellant demonstrated prejudice, i.e.

that but for trial counsel’s failure to preserve this claim, there was a

reasonable possibility that a new trial would have been awarded. Thus, we

concur   with   the   PCRA   court’s   decision   to   deny   Appellant’s   instant

ineffectiveness claim.

      Because our review reveals no genuine issues of fact to be addressed

in an evidentiary hearing, we also agree with the PCRA court’s determination

that further proceedings were not required to consider Appellant’s claims.

See Keaton, 45 A.3d at 1094.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/24/2014




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