J-S57012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOYCE SCHOFIELD                            :
                                               :
                       Appellant               :   No. 3347 EDA 2017

                  Appeal from the PCRA Order October 10, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0710721-1999


BEFORE:      PANELLA, J., PLATT, J., and STRASSBURGER, J.

MEMORANDUM BY PANELLA, J.                             FILED JANUARY 28, 2019

        Joyce Schofield appeals from the order dismissing her timely petition

pursuant to the Post Conviction Relief Act (“PCRA”). She alleged in her petition

that her trial counsel was ineffective when he raised inherently contradictory

defenses in his opening statement to the jury, and in failing to request the

application of New Jersey law regarding the validity of her confession. We

conclude the PCRA court properly dismissed her petition without a hearing.

We therefore affirm.

        A jury convicted Schofield of hiring Steven Davis to set fire to a building

in an attempt to kill her boyfriend, Ronald Bridges, and his mother, Margaret.




____________________________________________


   Retired Senior Judge assigned to the Superior Court.
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However, the fire killed three-year-old Tamir Johnson rather than Schofield’s

intended targets. Two other residents of the building were severely burned.

      During his opening statement, Schofield’s trial counsel told the jury he

would present evidence supporting two defenses. First, he indicated he would

present facts and expert opinion capable of establishing that Schofield lacked

the capacity to form a specific intent to kill Ronald and Margaret Bridges.

Second, he stated he would present evidence Schofield had renounced her

participation in the crime by instructing Davis to call off the murder before it

happened.

      At trial, Schofield conceded she had contracted with Davis to have him

kill Ronald and Margaret. She further testified that while she was on vacation,

she decided it would be better if Davis did not kill Ronald and Margaret.

Pursuant to this change of heart, she called Davis and told him he could

perform odd jobs for her rather than killing the Bridges.

      After the end of Schofield’s testimony, the trial court ruled that Schofield

could not present both a lack of capacity and a renunciation defense. The court

found the two defenses inherently contradictory. It further ruled Schofield

could not present her expert psychological witness, as her own testimony

rendered her lack of capacity defense inapplicable. The jury found her guilty

of murder, attempted murder, arson, criminal conspiracy, and aggravated

assault.




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      On direct appeal, this Court deemed Schofield’s issues waived, due to

counsel’s failure to comply with Pa.R.A.P. 1925(b). See Commonwealth v.

Schofield, No. 519 EDA 2001 (Pa. Super. filed October 28, 2003)

(unpublished memorandum). The Supreme Court of Pennsylvania affirmed our

decision. See Commonwealth v. Schofield, 888 A.2d 771 (Pa. 2005).

      Schofield’s direct appeal rights were restored nunc pro tunc through a

successful PCRA petition. This Court subsequently affirmed her judgment of

sentence, and the Supreme Court of Pennsylvania denied her petition for

review.

      She then filed a timely PCRA petition. See Commonwealth v. Ranger,

196 A.3d 237, 241 (Pa. Super. 2018) (“The one-year time limit for filing a

timely PCRA [petition] is … triggered … [by] the exhaustion of a petitioner’s

direct appellate rights”). The PCRA court appointed counsel, who filed an

amended petition. The PCRA court subsequently dismissed the amended

petition without a hearing, and Schofield filed this timely appeal.

      We proceed by determining whether the PCRA court’s factual findings

are supported by the record. See Commonwealth v. Ford, 44 A.3d 1190,

1194 (Pa. Super. 2012). In doing so, we read the record in the light most

favorable to the prevailing party. See id. If this review reveals support for the

PCRA court’s credibility determinations and other factual findings, we may not

disturb them. See id. We, however, “afford no such deference to its legal

conclusions.” Id., at 1194 (citations omitted).


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      Schofield’s first substantive issue is her claim that trial counsel was

ineffective in presenting inherently contradictory defenses during his opening

statement. We presume counsel’s effectiveness, and an appellant bears the

burden of proving otherwise. See Commonwealth v. Brown, 161 A.3d 960,

965 (Pa. Super. 2017). To establish ineffectiveness of counsel, a PCRA

petitioner must plead and prove the following: his underlying legal claim has

arguable merit; counsel’s actions lacked any reasonable basis; and counsel’s

actions prejudiced the petitioner. See Commonwealth v. Spotz, 18 A.3d

244, 260 (Pa. 2011). “Prejudice is established if there is a reasonable

probability that, but for counsel’s errors, the result of the proceedings would

have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Commonwealth v. Stewart, 84 A.3d

701, 707 (Pa. Super. 2013) (en banc) (citations and internal quotation marks

omitted). Failure to satisfy any prong of the ineffectiveness test requires

dismissal of the claim. See Commonwealth v. O’Bidos, 849 A.2d 243, 249

(Pa. Super. 2004).

      Schofield argues trial counsel erred in telling the jury he would present

evidence to support two contradictory defenses. The first defense was a lack

of capacity to form the specific intent to kill, commonly known as a diminished

capacity defense. A defense of diminished capacity is a limited defense. See

Commonwealth v. Legg, 711 A.2d 430, 433 (Pa. 1998). The defendant does

not deny all criminal culpability, but rather argues for mitigation of her


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culpability from first degree to third degree murder. See id. To support this

defense, the defendant must present evidence capable of establishing she

lacked the cognitive ability to deliberate over and premeditate her culpable

actions. See id. In his opening statement, trial counsel indicated he would

present the expert testimony of psychiatrist Gary Glass, M.D., to support this

defense. See N.T., Jury Trial, 7/13/2000, at 58-60.

      The second defense, which Schofield now argues was inherently

contradictory to the diminished capacity defense, was that she renounced her

participation in the conspiracy to kill the Bridgeses. While Schofield did not set

the fatal fire, she was responsible for all crimes committed in the furtherance

of the objective of the agreement she reached with Davis to kill the Bridgeses.

See Commonwealth v. Figueroa, 859 A.2d 793, 798-799 (Pa. Super.

2004). For a conspirator to escape this liability through renunciation of the

conspiracy, she must abandon the conspiracy “before the commission of the

crime becomes so imminent that avoidance is out of the question.”

Commonwealth v. Roux, 350 A.2d 867, 871 (Pa. 1976) (citation omitted).

In his opening statement, trial counsel told the jury he would present evidence

Schofield had told Davis to cancel the attempt to kill the Bridgeses. See N.T.,

Jury Trial, 7/13/00, at 44-45.

      Essentially, trial counsel presented a twofold defense. First, that

Schofield lacked the capacity to form the specific intent to kill at the time she




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contracted with Davis to kill the Bridgeses. Second, that after she returned

from a vacation, she felt better and told Davis to cancel the assassination.

      After Schofield testified, the Commonwealth moved to have Dr. Glass’s

testimony precluded. The Commonwealth argued that since Schofield testified

she withdrew from the conspiracy to kill the Bridgeses, she was precluded

from presenting the defense of diminished capacity. The trial court agreed

with the Commonwealth and precluded the presentation of Dr. Glass’s

testimony and counsel’s arguments on diminished capacity.

      We conclude Schofield has not established she suffered prejudice from

counsel’s presentation of alternative defenses. “Prejudice is established if

there is a reasonable probability that, but for counsel’s errors, the result of

the proceedings would have been different. A reasonable probability is

probability sufficient to undermine confidence in the outcome.” Stewart, 84

A.3d at 707 (citations and internal quotation marks omitted).

      Here, Schofield testified she contracted with Davis to kill both Ronald

Bridges and his mother. See N.T., Jury Trial, 7/20/2000, at 40, 42-43. And

Schofield has never challenged the Commonwealth’s assertion that Davis set

fire to the residence in an attempt to kill Margaret Bridges. As noted, she

intended to present two defenses at trial: a lack of specific intent to kill, and

renunciation of the conspiracy before the fire was set.

      Schofield has not convinced us that any error in trial counsel’s opening

statement so undermined the truth-determining process that the verdict of


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guilty of first degree murder was completely unreliable. Additionally, we

cannot conclude that the jury’s verdict would have been different had counsel

not broached the issue of diminished capacity in his opening statement. The

diminished capacity defense was legally and factually independent from the

renunciation defense.

      Schofield has not established that the failure to follow through on the

diminished capacity argument affected the jury’s consideration of the

renunciation argument. She cites to a case from a foreign jurisdiction,

Georgia, to establish her claim of prejudice. See Ross v. Kemp, 393 S.E.2d

244 (Ga. 1990).

      However, even if we accept Ross as persuasive authority, it does not

explicitly support a finding of prejudice in this case. See id., at 245. The Ross

court relied on at least two circumstances not present here. First, that the

defendant, Ross, was represented by two separate attorneys at trial. See id.

Each attorney presented a mutually conflicting theory of defense at trial. See

id. Thus, it was clear that the defense team had not agreed to a single,

coherent theory of defense. See id. (“Each attorney seemingly acted as lead

counsel without informing the other of the direction the defense was to take.”)

      Further, neither theory of defense had been properly prepared. One

counselor fell asleep during the trial. See id. The other attorney did not

prepare Ross for direct or cross-examination. See id. Ultimately, the court




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rested its decision of ineffective assistance of counsel on the uninformed

nature of Ross’s decision to testify in his own defense:

      While the presentation of inconsistent defenses by one attorney
      may not be worthy of habeas corpus relief, (see e.g., Brown v.
      Dixon, 891 F.2d 490 (4th Cir. 1989)), each attorney here
      espoused a defense at odds with that of the other, causing a
      discernable split within the ranks of the defense team, which
      prevented counsel from, among other things, effective
      performances of the duty to assist in the decision whether to
      testify in his defense.

Id.

      Turning to the facts of this case, it is undisputed that Schofield only had

one attorney at trial. See Appellant’s Brief, at 21. Additionally, there is no

argument that counsel’s actions led to Schofield deciding to testify in an

uninformed or unprepared fashion. Finally, under the facts of this case, we

cannot conclude the jury verdict was likely to have been different if trial

counsel had never broached the issue of diminished capacity. Thus, Schofield

has not established a right to relief for ineffective assistance of counsel under

the PCRA.

      Next, Schofield contends trial counsel was ineffective in his opening

statement. Schofield alleges counsel failed when he indicated he would

present a psychiatric expert before ensuring that the court would allow him to

present the expert’s testimony. Schofield argues counsel should have ensured

the admissibility of this evidence by filing motions in limine.

      We conclude Schofield has not established she suffered prejudice from

counsel’s inaction. As we discussed above, we cannot conclude the jury’s

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verdict would have been different if counsel had avoided discussing the

diminished capacity defense in his opening statement. This includes his

mention of the expert witness he intended to use to support the diminished

capacity defense. Schofield is due no relief on her second issue on appeal.

      In her final issue, Schofield contends counsel was ineffective in failing

to argue that her first confession to police should have been suppressed under

New Jersey law. Schofield argues that her first confession, given while she

was hospitalized in New Jersey, would have been suppressed under New

Jersey law.

      Generally speaking, in criminal cases, the forum state has the power to

impose its own laws, so long as it has jurisdiction over the case. See

Commonwealth v. Eichinger, 915 A.2d 1122, 1133 (Pa. 2007). However,

Pennsylvania has adopted “a flexible choice of law rule which weighs the

interests our sister-states may have in the transaction.” See id. (citation

omitted). This flexible rule applies even in criminal cases. See id.

      Obviously, if there is no conflict between the laws of Pennsylvania and

New Jersey, counsel was not ineffective for failing to argue New Jersey law.

See id. (“it remains implicit in this analysis that there be a conflict between

the substantive law of New Jersey and the law of Pennsylvania”). Schofield

argues New Jersey law provides greater protections for hospitalized individuals

when they are interviewed by the police.




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      “Federal and New Jersey state standards used in determining whether”

a confession is voluntary “are similar.” State v. Galloway, 628 A.2d 735, 747

(N.J. 1993). New Jersey utilizes a totality of the circumstances test. See id.

So does Pennsylvania. See Commonwealth v. Nester, 709 A.2d 879, 882

(Pa. 1998).

      Schofield argues that several New Jersey cases held confessions to be

involuntary obtained while the defendant was hospitalized. See State v.

Pickles, 218 A.2d 609 (N.J. 1966); State v. Stott, 794 A.2d 120 (N.J. 2002);

State v. Patton, 826 A.2d 783 (N.J. Super. 2003). Initially, we note that the

decisions in Stott and Patton were filed well after Schofield’s trial in this

matter. Thus, counsel cannot be found ineffective for failing to argue their

applicability. See Commonwealth v. Gribble, 863 A.2d 455, 464 (Pa. 2004).

      In any event, these cases do not offer a bright-line rule that overrides

the general applicability of the totality of the circumstances test. See Pickles,

218 A.2d at 628 (“Review of the circumstances attending the taking of the

incriminating statement …”); Stott, 794 A.2d at 133 (“We are satisfied that

no precise definition can be formulated which would apply in advance to all

cases … The problem must be dealt with through a case-by-case approach in

which the totality of the circumstances must be examined.”); Patton, 826

A.2d at 800 (To admit a confession into evidence, the State “must prove

beyond a reasonable doubt that the suspect’s waiver was … voluntary in light

of all the circumstances.”).


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        Thus, Schofield has failed to establish there was a conflict between New

Jersey and Pennsylvania law on the issue of her confession in a New Jersey

hospital. There is no arguable merit to the claim counsel was ineffective for

failing to argue such a difference in an attempt to suppress the confession.

Schofield is due no relief on her final issue.

        As we conclude Schofield has not established an error on the part of the

PCRA court, we affirm the order dismissing her PCRA petition.

        Order affirmed.

        Judge Strassburger concurs in the result.

        Judge Platt did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/28/19




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