J-S08033-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                                          :
           v.                             :
                                          :
                                          :
RICHARD WOODWARD,                         :
                                          :
                   Appellant              :          No. 1090 WDA 2015

                   Appeal from the PCRA Order June 25, 2015
              in the Court of Common Pleas of Allegheny County,
               Criminal Division, No(s): CP-02-CR-0012298-2010

BEFORE: STABILE, DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                    FILED FEBRUARY 29, 2016

     Richard Woodward (“Woodward”) appeals from the Order dismissing

his first Petition filed pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

     In its Opinion, the PCRA court concisely set forth the relevant factual

and procedural history underlying this appeal.    See PCRA Court Opinion,

9/22/15, at 1-4.    We adopt the court’s recitation as though fully set forth
J-S08033-16

herein. See id.1,   2



      On appeal, Woodward presents the following issue for our review:

      Did the [PCRA] court err in denying [Woodward’s] PCRA Petition
      since trial counsel was ineffective for failing to file a suppression
      motion     challenging   the    voluntariness      of    [Woodward’s
      inculpatory] hospital bed statement to police detectives[,] since
      the only evidence connecting [Woodward] to the instant crimes
      came from that statement, and [Woodward] was drugged and
      incoherent when he gave the statement[,] since he had been
      administered pain killers because of his gunshot wound?

Brief for Appellant at 3 (capitalization omitted).

             This Court examines PCRA appeals in the light most
      favorable to the prevailing party at the PCRA level. Our review
      is limited to the findings of the PCRA court and the evidence of
      record. Additionally, we grant great deference to the factual
      findings of the PCRA court[,] and will not disturb those findings
      unless they have no support in the record. In this respect, we
      will not disturb a PCRA court’s ruling if it is supported by
      evidence of record and is free of legal error. However, we afford
      no deference to its legal conclusions.

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc)

(internal citations, quotation marks and brackets omitted).




1
   We additionally observe that while Woodward was being treated at the
hospital for his gunshot wound, of his own accord he asked to speak with the
lead detective investigating the shootings, Margaret Sherwood (“Detective
Sherwood”). N.T., 8/29/11-9/2/11 (trial), at 479. On July 15, 2010, five
days after the shootings, Detective Sherwood interviewed Woodward, in his
hospital room, in the presence of a fellow detective.         Id.   Prior to
interviewing Woodward, Detective Sherwood read Woodward his Miranda
rights, and gave him an opportunity to read and sign a Miranda rights
waiver form. Id. at 480-81.
2
  At trial, Woodward was represented by Christy Foreman, Esquire (“trial
counsel”).

                                   -2-
J-S08033-16

      To prevail on a claim of ineffectiveness of counsel, the PCRA petitioner

must demonstrate “(1) that the underlying claim is of arguable merit; (2)

that counsel’s course of conduct was without a reasonable basis designed to

effectuate his client’s interest; and (3) that he was prejudiced by counsel’s

ineffectiveness[.]” Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super.

2012) (citations omitted).    The PCRA court may deny an ineffectiveness

claim if the petitioner’s evidence fails to meet any of these prongs.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010).

Moreover, a PCRA petitioner bears the burden of demonstrating counsel’s

ineffectiveness.   Id.; see also Commonwealth v. Lesko, 15 A.3d 345,

380 (Pa. 2011) (stating that “[w]hen evaluating ineffectiveness claims,

judicial scrutiny of counsel’s performance must be highly deferential.”

(citation and internal quotation marks omitted)).

      Regarding the first prong of the ineffectiveness test, if the petitioner’s

underlying claim lacks arguable merit, his or her derivative claim of counsel’s

ineffectiveness necessarily fails.   Commonwealth v. Baumhammers, 92

A.3d 708, 722 n.7 (Pa. 2014).              Concerning the second prong, our

Pennsylvania Supreme Court has stated that

      [g]enerally, counsel’s assistance is deemed constitutionally
      effective if he chose a particular course of conduct that had
      some reasonable basis designed to effectuate his client’s
      interests. Where matters of strategy and tactics are concerned,
      a finding that a chosen strategy lacked a reasonable basis is not
      warranted unless it can be concluded that an alternative not
      chosen offered a potential for success substantially greater than
      the course actually pursued.


                                     -3-
J-S08033-16



Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citations,

quotation marks and brackets omitted).     Regarding the third, “prejudice

prong,” it must be demonstrated that, absent counsel’s conduct, there is a

reasonable probability that the outcome of the proceedings would have been

different. Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. Super.

2014).

     In considering Woodward’s claim that his inculpatory statements were

subject to suppression for being involuntarily given, we are mindful of the

following. “When a court is called upon to determine whether a confession is

voluntary and, hence, admissible at trial, it examines the totality of the

circumstances surrounding the confession to ascertain whether it is the

product of an essentially free and unconstrained choice by its maker.”

Commonwealth v. Smith, 85 A.3d 530, 537 (Pa. Super. 2014) (citation

omitted).   “By the same token, the law does not require the coddling of

those accused of crime.    One [] need not be protected against his own

innate desire to unburden himself.” Commonwealth v. Templin, 795 A.2d

959, 966 (Pa. 2002) (citation omitted).

     When assessing voluntariness pursuant to the totality of the
     circumstances, a court should look at the following factors: the
     duration and means of the interrogation; the physical and
     psychological state of the accused; the conditions attendant to
     the detention; the attitude of the interrogator; and any and all
     other factors that could drain a person’s ability to withstand
     suggestion and coercion.      The determination of whether a
     confession is voluntary is a conclusion of law and, as such, is
     subject to plenary review.


                                 -4-
J-S08033-16



Commonwealth v. Harrell, 65 A.3d 420, 434 (Pa. Super. 2013) (citations

and quotation marks omitted).

     Woodward argues that the PCRA court erred by failing to find that trial

counsel was ineffective for not seeking to suppress Woodward’s inculpatory

statements, as they were “involuntary due to [Woodward’s] drugged state

during the interview[.]” Brief for Appellant at 24. According to Woodward,

     he was so medicated [at the time of making his statements] that
     he was not thinking clearly[,] and [he] has no recollection of
     anything that the police put in their report regarding the
     interview[.] [Woodward’s] contention is not disputed by the
     Commonwealth since there is no indication that the detectives
     checked to see what medication, or the quantity, [that
     Woodward] had been prescribed by doctors, or checked with
     hospital personnel to determine if [he] was lucid enough to
     interview.

Id. at 23-24. Woodward avers that “[t]he evidence regarding [his] alleged

statements to police was exceedingly damaging since it detailed his

involvement in the instant crimes, and[,] without that evidence[,] there is a

great likelihood that he would have never been convicted of any of the

instant crimes, but especially [second-degree m]urder[.]”        Id. at 23.

Moreover, Woodward contends that, contrary to trial counsel’s position

regarding her defense strategy, she had no reasonable basis for failing to

suppress Woodward’s involuntary statements. Id. at 24.

     In its Opinion, the PCRA court adeptly addressed Woodward’s claims

and determined that trial counsel was not ineffective.     See PCRA Court

Opinion, 9/22/15, at 6-8.       In sum, the PCRA court determined that


                                 -5-
J-S08033-16

Woodward had failed to establish any of the three prongs of the

ineffectiveness test, since (1) the mere fact that Woodward may have been

on pain medication at the time of his statements,3 absent more, is not

sufficient to warrant suppression; (2) trial counsel articulated a reasonable

basis for making the conscious and strategic decision not to seek

suppression; and (3) the outcome of Woodward’s trial would not have been

different had trial counsel sought suppression. Id. at 6-7. The PCRA court’s

analysis is supported by the record and the law, and we agree with its

determination that Woodward failed to meet his burden to prove that trial

counsel was ineffective.   Accordingly, we affirm on this basis in rejecting

Woodward’s sole issue on appeal. See PCRA Court Opinion, 9/22/15, at 6-




3
 Woodward failed to advance any evidence that he was, in fact, on pain
medication at the time of his statements to Detective Sherwood.

                                 -6-
J-S08033-16

8.4

      As we conclude that the PCRA court neither abused its discretion nor

committed an error of law, we affirm the Order dismissing Woodward’s PCRA

Petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/29/2016




4
  As an addendum, we observe that Woodward failed to establish that his
inculpatory statements were involuntary and subject to suppression.
Contrary to Woodward’s above assertion, Detective Sherwood’s testimony
shows that not only was Woodward alert and responsive to questioning, but
he was also able to communicate normally, including in his attempt to
initially disclaim his association with the robbers, before changing his story
upon being presented with evidence establishing his involvement. See N.T.,
8/29/11-9/2/11, at 480-87; see also Commonwealth v. McQuaid, 417
A.2d 1210, 1213 (Pa. Super. 1980) (wherein this Court held that the
inculpatory statement given by the defendant to police was voluntary
notwithstanding that it was made in a hospital setting where the defendant
was being treated for a gunshot wound to the head, as the defendant had
spoken after being read his Miranda rights and appeared to be alert and
responsive to the detectives’ questions); Commonwealth v. Hunt, 398
A.2d 690, 693 (Pa. Super. 1979) (en banc) (where the appellant was
interviewed in his hospital bed while being treated for a stab wound, holding
that his inculpatory statements were voluntary, since appellant was alert and
responsive. The Court also rejected the appellant’s argument that “the
interrogating officer should have made inquiry as to appellant’s medical
condition and what medication had been administered to him[.]”).

                                 -7-
                                                                            Circulated 01/29/2016 03:06 PM




IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY,
                       CRIMINAL DIVISION



COMMONWEALTH OF PENNSYLVANIA


                                V.                         CC: 201012298


RICHARD WOODWARD, III,

                                          Defendant


                                                      OPINION



              The Defendant has appealed from the Order of Court dated June 25, 2015,

dismissed his Amended Post Conviction Relief Act Petition without a hearing.

review of the record reveals that the Defendant has failed to present any meritorious

appeal and, therefore, the judgment of sentence must be affirmed.

              The Defendant was charged with Criminal Homicide, 1 Criminal Attempt,2 Assault

Law Enforcement Officer,3 Aggravated Assault of a Police Officer,4 Robbery,5

Carrying a Firearm Without a License," Recklessly Endangering Another Person, 8


1       18 Pa.C.S.A. §250l(a)
2       18 Pa.C.S.A. §901(a) - 5 counts
3       18 Pa.C.S.A. §2702.lA- 3 counts
4       18 Pa.C.S.A. §2702(a)(2)- 5 counts
5       18 Pa.C.S.A. §3701(a)(l)(l)
6
        18 Pa.C.S.A. §3502(c)(l)
7       18 Pa.C.S.A. §6106(a)(l)
    8   18 Pa.C.S.A. §2705 - 4 counts
Conspiracy? and Aggravated Assault.!?           Prior to trial, the Aggravated Assault,

Assault of a Police Officer, Assault of a Law Enforcement Officer and Criminal Attempt - ...... ,_,_,,,

were withdrawn.           Following a jury trial, the Defendant was found guilty of second-degree

murder and the remaining charges.

           On December 15, 2011, the Defendant appeared before this Court and was sentenced; to

mandatory term of life imprisonment.       Post-Sentence Motions were timely filed and were            uc.JLUl,;,,U




by operation of law on April 20, 2012. The judgment of sentence was affirmed by the

Court on June 3, 2012. A timely Petition for Allowance of Appeal was filed and was

our Supreme Court on December 19, 2013.

            No further action was taken until July 24, 2014, when the Defendant filed a prose

Conviction Relief Act Petition.         Counsel was appointed to represent the Defendant

Amended Petition followed. After reviewing the Petition and record, and giving the

notice of its intent to do so, this Court dismissed the Amended Petition without a hearing.

appeal followed.

            By way of a brief review, the evidence presented at trial established that

Hainesworth and her four (4) year old son, Kyere, lived at 2340 East Hills Drive in the

 Pittsburgh. Ms. Hainesworth's boyfriend, Anthony Lemon, stayed at the house          v, ...,a.,J,vuu.u,



 was known to keep drugs and money in the house.

            In the early morning hours of July 11, 2010, the Defendant, Richard Woodward,

 with two other men, co-Defendants Tyree Gaines and Amir Ferguson, broke into



 9    18 Pa.C.S.A. §903(a)(l)
 10   18 Pa.C.S.A. §2702(a)(2)

                                                     2
residence for the purpose of stealing the drugs and money they knew to be in the house.

three (3) men initially approached the front door and knocked, then left. Hainesworth,

at home watching movies with her friends and son, looked out of the peep-hole in the

saw the men wearing black clothing and scarves over their faces.            She called another

Terry Johnson, who had just left, and asked him to look around the area.

anyone and returned to Hainesworth's residence.

       Approximately fifteen minutes later, the three men knocked again.             This time

looked out the peep-hole and after seeing the three (3) men, he instructed everyone to go

and hide and to call the police. The group hid in Kyere's room, some inside the closet and

behind the bed.    Hainesworth was on the phone with 911 when the men broke the front

down and entered the house.        The men searched the downstairs level of the home, but

unable to find the drugs and money. Two (2) of the men went upstairs and broke down the u.u.._,., .._;;·s.-,,:

of the bedroom where everyone was hiding. They demanded that Hainesworth tell them                  vvu'"'""":·,


the drugs and money were, and when she did not, they grabbed Kyere, put the gun to his

 and asked him where the items were. Kyere directed them to an air vent, where they found """"'P"·

 money. They then let Kyere go, but put the gun to Hainesworth's head and forced her to

 them to the drugs. Hainesworth and the men went downstairs, when the Defendant, who

 been standing by the patio door with an assault rifle, yelled that the police had arrived.

 ran upstairs.

         The Defendant ran into the bedroom, kicked out the window screen and jumped

 the window. Shots were fired at the police from inside the house and the officers returned

. The Defendant was shot in the back as he was fleeing the scene.


                                                     3
         Downstairs, City of Pittsburgh Police Officer Steven Sywyj had entered the

pursuit of the men.    He encountered Hainesworth and told her to get out of the house.

fled, she was hit with a bullet fired from the house. Johnson came out of the room in an     <>1"1·,,m,r'\-r



to find and aid Hainesworth and was shot in the hand.       Eventually, Gaines and Ferguson

able to escape the police, but were apprehended several days later.

         The Defendant was transported to Presbyterian Hospital for treatment for his .... ~ •..     u ..   ,J.



wound.      Several days later, he asked to speak to the lead Detective on the case.

interviewed by Detective Margaret Sherwood, and initially told her that he went to the

buy drugs and ended up in the middle of a shootout.       When confronted with other

that the police had already learned, the Defendant said that he met up with two men whom

would not name, and went to the house to conduct a robbery. The men were driven to the

by a woman in a dark-colored vehicle. They broke into the house by kicking the door




search, he stayed downstairs with the assault rifle and acted as a lookout.    He shouted

 saw the police approach, then ran upstairs, jumped out the window and ran. A subsequent

 of the scene revealed a bag with 4 7 bricks of heroin, having a street value of

 $17,450.00.

          On appeal, the Defendant argues that trial counsel was ineffective for failing to

 Motion to Suppress the Defendant's statement to the police. A review of the record reveals

 this claim is meritless.

          In order to establish a claim for the ineffective assistance of counsel, "a PCRA

 must demonstrate, by a preponderance       of the evidence, that: (1) the underlying claim


                                                   4
arguable merit; (2) no reasonable basis existed for counsel's action or inaction; and (3) ther~ is
                                                                                                    ·:
                                                                                                                             ~}f<
                                                                                                                             :;.· : rJ
                                                                                                     '                       i;),A'                   <
reasonable probability that the result of the proceedings would have been different absent $Uc~i1~~       ?)
                                                                                           -  i· · tt·.,r
                                                                                                                             :;.'; :-r.f
                                                                                                                              ,. ··r.;:

error."   Commonwealth v. Gibson, 19 A.3d 512, 525-26 (Pa. 2011). "The law presumesithat\ll
                                                                                                         ~                    lj)l i:t/-:-~.
counsel was not ineffective, and the appellant bears the burden of proving otherwise ... [I]f th{;®f:
                                                                                                         .                    1~;·:: E:V
issue underlying the charge of ineffectiveness is not of arguable merit, counsel will not b~JJ .• .
                                                                                                             ~                ·WtltJ: :· ~-: - _
deemed ineffective for failing to pursue a meritless issue...      Also, if the prejudice prong of thti\fIJ :'                 ti···''I<',.-;:
                                                                                                                               i,- .f.\:'.'.
                                                                                                                               ,'           ~-·
ineffectiveness standard is not met, 'the claim may be dismissed on that basis alone and [the~e i~!:~:~ j

no] need [to] determine whether the [arguable merit] and [ client's interests] prongs have been/          tt(
                                                                                                                 t             t:Jl?
                                                                                           .,  ·.,:·.:·:.-·.;
                                                                                                                               <f::;f"\;
                                                                                                                                             :;:: ~
                                                                                                                                 (.     ·;\'i:
                                                                                                                                 .,     :

met."'    Commonwealth v. Khalil, 806 A.2d 415, 421-2 (Pa.Super. 2002). "With regard to(- thtfH"\
                                                                                             '.}: ·:: (~'- !'

                                                                                                                 ; t:JtJ
reasonable basis prong, (the appellate court] will conclude that counsel's chosen strategy lacked/ \H . .
                                                                                                                     , !lJf::;u
a reasonable basis only if the petitioner proves that the alternative strategy not elected offered a}}rl! ·
                                                                                                    1/tlSf:"<··;.

::::~::    ::,:::::,    ::b:::::)~earer        than the course acutelypursued." Commonwealfu                                 vlll
                                                                                                                     '                (<c.f               .••
          Additionally, "[w]here the challenge is to a failure to move for suppression of evideµce,fjt /
                                                                                              i . ll':J1lrl                                                 1
 the defendant must establish that there was no reasonable basis for not pursuing the suppression])\f<t · •
                                                                                              I t1l~\L1
 claim and that if the evidence had been suppressed, there is a reasonable probability the verpict\CJL .:
                                                                                              i faijll, ;j
 would have been more favorable."         Commonwealth v. Melson, 556 A.2d 836, 839 (Pa.Su'per.lf:rnf H

 1989).
                                                                                    .    i . ·liijift-:),-~-
          It is well-established that '"When deciding a motion to suppress a confession, 1the1L'}t · , .
                                                                                                             .
                                                                                                                         . ~!I~~
                                                                                                                         1               ;r11~4
 touchstone inquiry is whether the confession was voluntary. Voluntariness is determined f~omtncx
                                                                                               . ~Jf''           . t.
 the totality of the circumstances surrounding the confession. The question of voluntariness is ;noti; lfH
                                                                                             i f:Jt+n
 whether the defendant would have confessed without interrogation, but whether the interrogation lPul~ \"\                                  ,:._:;::-r




                                                                                                                                             1(~\!!\t ,
                                                     5
was so manipulative or coercive that it deprived the defendant of his ability to make a free

unconstrained   decision to confess.    The Commonwealth       has the burden of proving

preponderance   of the evidence that the defendant confessed voluntarily' ... 'When """'"'"'"'"'L»F,

voluntariness pursuant to the totality of the circumstances, a court should look at the

factors: the duration and means of the interrogation; the physical and psychological state of
                                                                                               { .
accused; the conditions attendant to the detention; the attitude of the interrogator; and any and

other factors that could drain a person's ability to withstand suggestion and coercion.

Commonwealth v. Harrell, 65 A.3d 420, 433-34 (Pa. 2014), internal citations omitted

        As noted above, the Defendant contacted Detective Sherwood and asked to speak

her. He initially stated that he had gone to the house to buy drugs and ended up in a

but when confronted with evidence from the surveillance video, he then stated that he acted as

lookout but ran through the house, jumped out a window and fled when the police arrived.

 now asserts that his "confession" was involuntary because he was receiving pain

 his bullet wound.

        The fact that the Defendant was receiving pain medication for his injury does not

 provide a sufficient basis for suppression of the confession. The Defendant makes no

 assertions regarding the nature of the interrogation, does not claim that he was

 manipulated,   beaten or otherwise coerced.        Under these circumstances,     the use

 medication is not sufficient to warrant suppression of his confession.

         Moreover, the record reflects that trial counsel made a strategic decision not to

 suppression. She stated:




                                                   6
      I did in fact tell him that I did not want to suppress the statement. First, while he
      may have had some medication, from the details he could relate about giving the
      statement to the police, that led me to believe he gave the statement (statements I
      should say) knowingly. Plus, I know Judge McDaniel would never suppress the
      statement as there was just not enough to say it was involuntary.               More
      importantly, the ONLY defense I had to his Felony Murder case was renunciation.
      I told him that I did not want the statement suppressed as that was the best
       evidence I had to try to argue that while he may have participated in the Robbery,
       that he had renounced that participation in that crime before the homicide took
       place by kicking out the 2nd story window and jumping out to run away and
       subsequently [was] shot in the back. The placement of the gunshot wound would
       substantiate he was shot while running away PRIOR to Ms. Hainesworth being
       shot by the other co-defendant from the upstairs window. It is the defense I used
      at trial, and while it unfortunately did not work, it was the ONLY thing I had as
      far as felony murder.

(Amended PCRA Petition, p. 20).

       Ms. Foreman's statement, read in conjunction with the record, demonstrates that

have a reasonable basis for not seeking suppression and so made a conscious and

decision not to. Ms. Foreman was correct in that, as discussed above, this Court would not

granted a Motion to Suppress based on these facts, and so there would not have been a

result. Moreover, Ms. Foreman is also correct that the Defendant's statement provided a

for a renunciation defense, which would not have been available to her if the statement had oeenv;

suppressed.

       Ultimately, the Defendant has not established that trial counsel was ineffective in

way with regard to a possible suppression motion.        Counsel has demonstrated a

strategic basis for her decision and the Defendant has not established either that a

motion would have been granted or that the outcome of the trial would have been any           UU.J..V.L"VUS




had suppression been sought.       Insofar as the Defendant utterly failed in establishing




                                                 7
ineffective claim, this Court was well within its discretion in dismissing the Amended

Petition without a hearing. This claim must fail.

       Accordingly, for the above reasons of fact and law, this Court's Order of June 25, 201

must be affirmed.




                                             BY THE COURT:

                                                    !
                                                f
                                                i
                                      (
                                          ---~
Dated:      September 22, 2015




                                                        8
