J-S50018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVID FRANK STAHL                          :
                                               :
                       Appellant               :   No. 35 WDA 2019

            Appeal from the PCRA Order Entered December 6, 2018
    In the Court of Common Pleas of Westmoreland County Criminal Division
                      at No(s): CP-65-CR-0001233-2012


BEFORE:      LAZARUS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                            FILED OCTOBER 08, 2019

        David Frank Stahl (Appellant) appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

        The charges in this case arose from the death of Rebecca Stahl
        [(Victim)], whose body was located on February 24, 2012 in a
        rural area of Unity Township, Westmoreland County.             The
        discovery of her body was the result of an investigation into the
        disappearance of [Victim], who had been reported missing by her
        father, Kenneth Anderson, on February 21, 2012. The evidence
        presented at trial established that [Victim] had lived in Hempfield
        Township, just outside of Greensburg, with her husband,
        [Appellant]. The evidence also suggested that their marriage was
        not always a happy one. . . .

        . . . Pennsylvania State Troopers began an investigation of the
        missing person’s report, talking with [Victim’s] sister, Kelly Beltz,
        and [Appellant]. [Appellant] reported that he had last had contact
        with [Victim] on Monday, February 20, 2012, when they had had
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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      a conversation via text regarding their bank debit card.
      [Appellant] told [Trooper] Laird that [Victim] was gone when he
      had returned home from Lowe’s, a large home improvement store.
      Kelly Beltz advised [Trooper] Laird that it was unlikely that
      [Appellant] was unaware of [Victim’s] whereabouts, because he
      was very controlling. [Appellant] allowed [Trooper] Laird to walk
      through the residence, but at that time, he did not locate [Victim].

                              *     *      *

      Further investigation and interviews led the Pennsylvania State
      Police to ask [Appellant] for consent to search his residence on
      the morning of February 22, 2012. [Appellant] consented to a
      search of the residence and signed a written consent for them to
      do so. At that time, a state trooper also photographed numerous
      injuries that could be seen on [Appellant’s] face. A search of the
      residence revealed a number of concerning items, including
      evidence of recent repairs done in the bathroom and the basement
      area of the home. State troopers also noted a number of
      inconsistencies in [Appellant’s] statements to them, and
      [Appellant] became a “person of interest.” The State Police then
      applied for and obtained a search warrant signed by Judge Debra
      Pezze of the Court of Common Pleas of Westmoreland County and
      returned to the [Appellant’s] residence later that afternoon.
      During this search, a plastic garbage bag was found in a basement
      freezer. Inside this garbage bag was a separate bag that
      contained personal items belonging to [Victim], and another bag
      that contained partially burned identification and medical
      information for [Victim]. Inside another bag were hiking boots
      and other items of what appeared to be men’s clothing. Troopers
      also noted evidence of plant material that they believed to be
      arborvitae leaves. Troopers also collected other evidence from
      the home, including a clump of reddish-brown hair that was found
      on top of a paper shredder in the basement. Troopers also treated
      the basement area with luminol and leuco crystal violet, which
      revealed several areas of suspected blood evidence.            They
      photographed and collected samples from the areas that showed
      fluorescence, indicating the possibility of the presence of blood.

Trial Court Opinion, 2/19/15, at 1-3 (citations omitted).

      On February 27, 2012, Appellant was arrested and charged with one

count of first-degree murder. On February 29, 2012, while in the local county

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jail, Appellant contacted police and asked to speak to them. Appellant was

advised of and waived his Miranda1 rights. During the interview, Appellant

admitted to killing his wife, but maintained that he only did so while acting in

self-defense after Victim tried to stab him with a knife during an argument.

Appellant explained that on February 18, 2012, he began drinking at Frontier

Club, a bar, after running errands earlier that day.      Around 12:30 p.m.,

Appellant met friends at another bar, Kowboys, where he stayed until 7:00

p.m. After Appellant returned home, he and Victim began to argue. Appellant

left the house and met friends at Whitney, another local bar. Appellant did

not return home until 12:30 a.m. the following morning.

        In describing his level of intoxication, Appellant made the following

statements to police:

        [State Police Trooper #1]: Um and then you arrived back later
        that night sometime around midnight, is that correct?

        [Appellant]: Yes.

        [State Police Trooper #1]: You say you weren’t intoxicated?

        [Appellant]: Not heavily no. I was intoxicated but not heavily.

        [State Police Trooper #1]: You knew what was going on?

        [Appellant]: Yes.

        [State Police Trooper #1]: You drove home?

        [Appellant]: Yes.


____________________________________________


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

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     [State Police Trooper #1]: Felt safe to drive home?

     [Appellant]: Yes sir.

     [State Police Trooper #1]: What was you drinking at the bar?

     [Appellant]: Beer.

     [State Police Trooper #2]: Just beer? Do you drink anything else?
     Do you drink anything else there?

     [Appellant]: There are times I’ll drink mix drinks.

     [State Police Trooper #2]: What mix drink?

     [Appellant]: Captain Morgan.

     [State Police Trooper #1]: Did you have any on Saturday?

     [Appellant]: I don’t think I did.

     [State Police Trooper #1]: You drank nothing but beer? What type
     of beer?

     [Appellant]: Bud Light.

     [State Police Trooper #1]: Bottle or draft?

     [Appellant]: In Saturday – in the afternoon I was drinking draft
     but the night time I would have been drinking bottle.

     [State Police Trooper #1]: Over the course of that day how many
     um drafts or bottles do you think you had?

     [Appellant]: Six or seven drafts during the afternoon, and maybe
     four or five bottles at night time.

     [State Police Trooper #1]: Okay, and like you said you didn’t feel
     like you were impaired at all?

     [Appellant]: No sir.

N.T., 6/26/14, at 532-34, Ex. 170A.


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      Appellant recounted that upon his return home, he and Victim got into

another argument.       At some point, Victim grabbed a knife.       During the

altercation, Appellant and Victim fell to the floor and Victim dropped the knife.

Appellant then grabbed Victim’s throat and strangled her to death.            He

explained that, afterwards, he panicked, hid her body in the bushes near

Latrobe Airport and threw away her purse and cell phone.

      On June 27, 2014, a jury found Appellant guilty of first-degree murder.

The trial court sentenced Appellant to a mandatory sentence of life in prison

without parole. On July 24, 2014, Appellant filed a post sentence motion,

which the trial court denied on December 16, 2014. Appellant filed a timely

appeal and this Court affirmed his judgment of sentence. Commonwealth

v.   Stahl,   1   WDA   2015   (Pa.   Super.   Nov.   29,   2016)   (unpublished

memorandum).       Appellant filed a petition for allowance of appeal with the

Pennsylvania Supreme Court, which was denied on June 20, 2017.

      On August 21, 2017, Appellant filed the underlying PCRA petition.

Counsel was appointed, and filed an amended petition on December 8, 2017,

raising claims on ineffective assistance of counsel. On September 17, 2018,

the PCRA court held a hearing on Appellant’s petition. On December 6, 2018,

the PCRA court dismissed Appellant’s petition. This timely appeal followed.

Both Appellant and the PCRA court have complied with Pennsylvania Rule of

Appellate Procedure 1925.

      On appeal, Appellant presents the following issues for review:


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      I.    WHETHER    APPELLANT’S  PRIOR  COUNSELS   WERE
            INEFFECTIVE, WHICH IN THE CIRCUMSTANCES OF THE
            PARTICULAR CASE, SO UNDERMINED THE TRUTH
            DETERMINING    PROCESS    THAT   NO    RELIABLE
            ADJUDICATION OF GUILT OR INNOCENCE COULD HAVE
            TAKEN PLACE.

      II.   WHETHER THE TRIAL COURT ERRED IN DENYING
            APPELLANT’S PCRA PETITION AFTER THE HEARING AS THE
            RECORD CLEARLY ESTABLISHED THAT APPELLANT’S PRIOR
            COUNSELS WERE INEFFECTIVE FOR FAILING TO PURSUE A
            VOLUNTARY INTOXICATION DEFENSE.

Appellant’s Brief at 5.

      We review the denial of PCRA relief by “examining 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.

      Both of Appellant’s issues involve allegations of ineffective assistance of

counsel. In deciding ineffective assistance of counsel 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).      To



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demonstrate prejudice in an ineffective assistance of counsel claim, “the

petitioner 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. King, 57 A.3d 607, 613 (Pa. 2012). If the

petitioner fails to prove any of these prongs, the claim is subject to dismissal.

Bomar, 104 A.3d at 1188.

      Appellant argues that his trial counsel, Donna J. McClelland, Esquire and

Matthew R. Schimizzi, Esquire (collectively, Counsel), were ineffective for

failing to request a jury instruction on voluntary intoxication.     Specifically,

Appellant asserts that Counsel raised the issue of Appellant’s intoxication

during trial, but failed to request a jury instruction.       Although Appellant

admitted that he murdered Victim, Appellant contends that he lacked the

specific intent to be convicted of first-degree murder due to his intoxication.

Appellant’s Brief at 18. Accordingly, Appellant suggests that Counsel were

ineffective for failing to request a jury instruction on voluntary intoxication.

      A defense of diminished capacity negates the element of specific intent,

and   thus    mitigates   first-degree    murder      to   third-degree    murder.

Commonwealth         v.   Williams,      980   A.2d    510,   527   (Pa.   2009);

Commonwealth v. Saranchak, 866 A.2d 292, 299 (Pa. 2005). The mere

fact of voluntary intoxication does not give rise to a diminished capacity

defense. Rather, to prove diminished capacity due to voluntary intoxication,

a defendant must show that he was overwhelmed to the point of losing his

faculties and sensibilities. Commonwealth v. Blakeney, 946 A.2d 645, 653

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(Pa. 2008); Commonwealth v. Spotz, 896 A.2d 1191, 1218 (Pa. 2006).

Evidence that the defendant lacked the ability to control his or her actions or

acted impulsively is irrelevant to specific intent to kill, and thus is not

admissible to support a diminished capacity defense.       Commonwealth v.

Vandivner, 962 A.2d 1170, 1183 (Pa. 2009).

      Our Courts have made clear that a jury instruction regarding diminished

capacity due to voluntary intoxication is justified only when the record

contains evidence that the accused was intoxicated to the point of losing his

or her faculties or sensibilities. Commonwealth v. Reiff, 413 A.2d 672, 674

(Pa. 1980). Evidence that the accused ingested alcohol or intoxicating drugs

– without more – does not warrant a voluntary intoxication instruction. Id.

      At the PCRA hearing, Attorney McClelland and Attorney Schimizzi

testified about their decision not to request a jury instruction on voluntary

intoxication.   Counsel testified that they met with Appellant to consider

whether his intoxication might have affected his ability to form intent. Counsel

testified that Appellant “couldn’t state a specific number of drinks that he had

consumed that day.” PCRA Hearing, 9/17/18, at 28; see also PCRA Hearing,

9/17/18, at 8-9. Counsel noted that Appellant could not provide any receipts

or credit card statements to document the amount of alcohol he had

consumed.       Likewise, Appellant informed Counsel that “he was not

intoxicated, at least so he believed, when he came home that night.” Id.

      Further, Attorney McClelland provided the following testimony regarding

other efforts utilized to investigate a voluntary intoxication defense:

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     Attorney McClelland: . . . We did speak to some friends of
     [Appellant], and I remember speaking with at least one bartender
     and maybe two bartenders because [Appellant] had related to the
     police in interviews and he told us where he had been drinking
     earlier that day.

     Appellant’s PCRA Counsel: From your recollection, do you recall
     about how long [Appellant] indicated he had been drinking that
     day?

     Attorney McClelland: I think it was off and on all day.

     Appellant’s PCRA Counsel: For over 12 hours?

     Attorney McClelland: I think it started late morning because he
     had his kids in the morning and had to drop them off or his mom
     picked them up, and he started drinking after the kids left and
     continued drinking until he got home and got into an argument
     with [the Victim] that led to her death.

     Appellant’s PCRA Counsel: In your conversations, did you discuss
     with [Appellant] what particular kind of alcohol he was
     consuming?

     Attorney McClelland: Yes.

     Appellant’s PCRA Counsel: What was that, if you recall?

     Attorney McClelland: I don’t remember. I think it was whiskey. I
     think beer and some mixed drinks. I did not review my notes on
     that. Again, [Attorney] Schimizzi has been taking notes on the
     intoxication part of this case.

     Appellant’s PCRA Counsel: Now, these witnesses that you
     interviewed, would you agree that these witnesses were not with
     [Appellant] the entire 12 hours?

     Attorney McClelland: That’s correct. [Appellant] had come home
     at one point and then left again. He had spent some time shooting
     pool I believe at a bar with his friends. It was just an off and on
     all day drinking but with different people in different bars as a
     matter of fact.


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      Appellant’s PCRA Counsel: So not one of these particular
      witnesses would have been drinking with him all 12 hours?

      Attorney McClelland: My recollection was that there was no one
      with him from start to finish.

      Appellant’s PCRA Counsel: Now, based on your conversation with
      the individual, did you ever hire an expert?

      Attorney McClelland: No, we did not.

      Appellant’s PCRA Counsel: Your reason?

      Attorney McClelland: We were not able to get enough information
      that it would be worthwhile. I do remember speaking with Dr.
      Winek, who at that time was still a practicing toxicologist. He said,
      no, you need more detail than what you have. You need about
      exactly the size of the drinks, what was in the drinks, how many
      drinks and when the last drink was consumed. We had trouble
      pinning all of that down.

PCRA Hearing, 9/17/18, at 10-12.

      Attorney   Schimizzi   corroborated     Attorney   McClelland’s   testimony

pertaining to Counsels’ investigation into the voluntary intoxication defense.

Regarding Appellant’s intoxication, Attorney Schimizzi testified:

      The Commonwealth: And that [Appellant] was asked, you say you
      weren’t intoxicated. And his answer was not heavily, no. I was
      intoxicated but not heavily.

            He was also asked, you drove home. And he said, yes.

            He was asked if he felt safe to drive home. He said, yes?

      Attorney Schimizzi: Yes, that’s correct.

      The Commonwealth: So his own words to the troopers, you know,
      approximately ten days after the homicide was committed were
      that he wasn’t heavily intoxicated, isn’t that true?

      Attorney Schimizzi: That’s correct.

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     The Commonwealth: And did you understand that in terms of
     presenting an intoxication defense that you would have to
     overcome his own words that he wasn’t heavily intoxicated, that
     he was able to drive?

     Attorney Schimizzi: Yes, absolutely. That was something that we
     considered.

                            *     *         *

     The Commonwealth: Now, what did            you   perceive   to   be
     [Appellant’s] defense to this homicide?

     Attorney Schimizzi: Our focus was on a voluntary manslaughter
     defense.

     The Commonwealth: Based upon what circumstances that were
     presented during trial?

     Attorney Schimizzi: Based upon the evidence that [Victim] had a
     knife, that it was a heated dispute between the two of them. You
     know, just the whole instance, the fighting back and forth. That’s
     what we considered or what I considered.

     The Commonwealth: In other words, he perceived himself to be
     in danger of serious bodily injury and that’s why he killed her?

     Attorney Schimizzi: Correct. I know that –

     The Commonwealth: Imperfect self-defense?

     Attorney Schimizzi: Imperfect self-defense. I know [Attorney]
     McClelland and I had discussed going back and forth to proving an
     imperfect self-defense or is it a heat of passion. Those were the
     two different angles that we were considering, and ultimately it
     was imperfect self-defense.

     The Commonwealth: Based on the investigation that was done by
     the State Police, it’s true that they had attempted to interview a
     number of people who were at the bar, bartenders, bar patrons
     where the defendant had been on the night of the homicide, isn’t
     that correct?


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     Attorney Schimizzi: Correct.

     The Commonwealth: And is it fair to say, based on all those
     interviews, there at least wasn’t any evidence from those
     interviews that [Appellant] was intoxicated to a great extent?

     Attorney Schimizzi: Not that I recall.

     The Commonwealth: And then you, [Attorney] McClelland and Mr.
     Lauder also did an investigation and you could not find any
     witnesses who could provide the level of [Appellant’s] intoxication,
     is that right?

     Attorney Schimizzi: No. I know Mr. Lauder and I went to Kowboys
     and we were not able to – they were uncooperative. They
     wouldn’t give us any information.

     The Commonwealth: Was he last at the Whitney Club, is that your
     recollection?

     Attorney Schimizzi: That’s my recollection.

     The Commonwealth: And you spoke to the bartender at the
     Whitney Club. We’re differing on what her name is, but you think
     you spoke to the last person who served him at the Whitney Club?

     Attorney Schimizzi: That’s who I am referring to, yes.

     The Commonwealth: She basically, if I can summarize it and you
     correct me if I’m wrong, she wasn’t able to provide any evidence
     as to the level of his intoxication with any certainty?

     Attorney Schimizzi: No.     That would be correct.    With her
     statements not having any concern about him driving home, you
     know, him not staggering, you know, anything like that, she was
     unable to provide any information.

     The Commonwealth: Based on your investigation that you
     conducted, based on the discovery that was provided by the
     Commonwealth as to the State Police investigation and your
     experience as a lawyer and [Attorney] McClelland’s experience as
     well, was it your opinion you did not have a defense of voluntary
     intoxication that would reduce first degree to third degree?


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     Attorney Schimizzi: That was the decision we made, yes, that the
     voluntary manslaughter argument was better than – it was a
     better defense strategy that he had diminished capacity because
     we didn’t have the evidence for –

     The Commonwealth: Well, it was a strategic decision to argue
     voluntary manslaughter rather than argue third degree based on
     voluntary intoxication?

     Attorney Schimizzi: Correct.

PCRA Hearing, 9/17/18, at 35-39.

     In rejecting Appellant’s ineffective assistance of counsel claim, the PCRA

Court stated:

        It is abundantly clear from the testimony of defense counsel at
     the evidentiary hearing that they went to great lengths to pursue
     all possible avenues of defense for [Appellant].              Counsel
     interviewed witnesses, traveled to the bars that [Appellant] visited
     prior to [Victim’s] murder, and spoke to experts who could have
     potentially bolstered such defenses.         Based on all available
     information, Attorney McClelland testified that it was her belief
     that while she could certainly ask the jury to consider [Appellant’s]
     intoxication at the time of the murder, such evidence did not reach
     the threshold of diminished capacity due to voluntary intoxication.
     Indeed, [Appellant’s] own statements to officers belie his
     contention that a diminished capacity defense should be [sic] have
     been presented, as he informed officers that he was able to drive
     home, and that while he was indeed intoxicated, he did not feel
     “impaired.”     [Appellant’s] contentions that his counsel was
     ineffective is not supported by a scintilla of evidence in the record;
     indeed the record reflects that his counsel thoughtfully and
     thoroughly examined all evidence available, and came to the
     realistic conclusion that [ ] a voluntary intoxication defense may
     not have been reasonable . . . .

PCRA Court Opinion, 12/6/18, at 17-18.

     We agree.    At Appellant’s PCRA hearing, Counsel testified that they

conducted a thorough investigation to determine the type of alcohol Appellant


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ingested, the amount of alcohol, and the specific time frame over which

Appellant drank on the night of the murder. Counsel interviewed multiple bar

patrons, friends of Appellant, and the bartenders who served Appellant to

determine whether Appellant had a viable voluntary intoxication defense.

PCRA Hearing, 9/17/18, at 12.      Mindful of the limited information Counsel

received from their investigation, and in conjunction with Appellant’s

statements to police that he was not heavily intoxicated, Counsel made the

strategic decision to pursue an imperfect self-defense, rather than a

diminished capacity defense.

      Counsel’s decision to forego a voluntary intoxication defense was

reasonable and did not prejudice Appellant. While Appellant suggests that

any evidence of alcohol consumption is sufficient to justify a jury instruction

on voluntary intoxication, Appellant’s Brief at 20, our law is clear that a jury

instruction regarding diminished capacity due to voluntary intoxication is

justified only when the record contains evidence that the accused was

intoxicated to the point of losing his or her faculties or sensibilities. Reiff,

413 A.2d at 674. Accordingly, as Counsel’s failure to seek a jury instruction

on voluntary intoxication was reasonable and did not prejudice Appellant, the

PCRA court did not abuse its discretion in dismissing Appellant’s ineffective

assistance of counsel claim. See Bomar, 104 A.3d at 1188.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/8/2019




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