J-S54038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JEFFREY DONALD PETERSON,                   :
                                               :
                       Appellant               :       No. 141 WDA 2016

                   Appeal from the PCRA Order March 4, 2014
               in the Court of Common Pleas of Crawford County
             Criminal Division at No(s): CP-20-MD-0000925-1992

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    JEFFREY DONALD PETERSON                    :       No. 181 WDA 2016

                  Appeal from the PCRA Order January 6, 2016
               in the Court of Common Pleas of Crawford County
             Criminal Division at No(s): CP-20-MD-0000925-1992

BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                          FILED FEBRUARY 28, 2019

        Jeffrey Donald Peterson (“Peterson”) appeals, nunc pro tunc, from the

March 4, 2014 Order denying his first Petition for relief pursuant to the Post

Conviction Relief Act (“PCRA”).1 We affirm.



____________________________________________


1   See 42 Pa.C.S.A. §§ 9541-9546.
J-S54038-16


       This Court previously set forth the relevant underlying history of this

case as follows:

       [Peterson] was charged on October 16, 1992, with two counts of
       criminal homicide-first-degree murder and one count of burglary
       in connection with the September 28, 1992 shooting of two
       victims. [Peterson] was found at the scene with a self-
       inflicted gunshot wound to the head.       The Commonwealth
       subsequently provided [N]otice it would seek the death penalty.
       On September 16, 1993, [Peterson] entered a plea of guilty to two
       counts of first-degree murder[,] in exchange for the
       Commonwealth entering a nolle prosse on the burglary charge[,]
       and withdrawing its intention to seek the death penalty. On
       November 3, 1993, the trial court sentenced [Peterson] to two
       consecutive terms of life imprisonment. [Peterson] did not file
       any post-sentence motion[s] or a direct appeal.

       On January 17, 1997, [Peterson] filed a counseled PCRA
       [P]etition.[2] ... On July 16, 1997[, the PCRA court] entered a
       Memorandum and Order which was docketed of record on July 17,
       1997. The Order stated that the Court Administrator was directed
       to schedule an evidentiary hearing[,] and the record indicates that
       a copy was provided to the Court Administrator. For some
       unknown reason[,] that evidentiary hearing was never scheduled
       and that failure was not brought to the attention of the [PCRA
       court] by [Peterson’s] counsel or anyone else until [Peterson] sent
       a letter to the Clerk of Courts[,] dated September 24, 2012[,] and
       docketed on October 2, 2012. ...

       In his [first] PCRA [P]etition and at the PCRA hearing,
       [Peterson], citing his head injury, challenged his competency in
       1993 to enter a voluntary, intelligent, and knowing guilty plea and
       challenged the effectiveness of his plea counsel for permitting the
       plea to be entered when he was incompetent. On March 4, 2014,
       the PCRA court issued a [M]emorandum and [O]rder denying relief
       on [Peterson’s] PCRA [P]etition, based on its merits.




____________________________________________


2 The 1995 amendments to the PCRA provided a grace period for the filing of
a first petition until January 16, 1997.

                                           -2-
J-S54038-16


Commonwealth v. Peterson, 118 A.3d 459 (Pa. Super. 2015) (unpublished

memorandum at 1-3) (citations and paragraph break omitted, footnote

added).

      This Court affirmed the PCRA court’s March 4, 2014 Order, albeit on

different grounds.   Specifically, this Court held that Peterson’s first PCRA

Petition was untimely filed by one day, and that Peterson failed to invoke any

of three timeliness exceptions at 42 Pa.C.S.A. § 9545(b)(1). See Peterson,

118 A.3d 459 (Pa. Super. 2015) (unpublished memorandum at 7-8).

      On March 31, 2015, Peterson filed a second PCRA Petition, invoking the

newly-discovered fact exception to the PCRA’s timeliness requirements, see

42 Pa.C.S.A. § 9545(b)(1)(ii); claiming ineffective assistance of his first PCRA

counsel for failing to timely file the first PCRA Petition; and requesting

allowance to appeal the denial of his first PCRA Petition, nunc pro tunc. After

holding a hearing on Peterson’s Petition, the PCRA court entered an Order

granting Peterson leave to appeal the March 4, 2014, Order, nunc pro tunc.

      Thereafter, Peterson filed a nunc pro tunc appeal to this Court, from the

March 4, 2014 Order. The Commonwealth filed a cross-appeal, challenging

the PCRA court’s January 6, 2016 Order, which granted Peterson’s second

PCRA Petition, thereby permitting him to file the nunc pro tunc appeal. On

appeal, this Court reversed the PCRA court’s January 6, 2016 Order, which

granted Peterson’s second PCRA Petition. Peterson, 158 A.3d 191, 2016 Pa.




                                     -3-
J-S54038-16


Super. Unpub. LEXIS 3547, at *8 (unpublished memorandum). This Court

explained that

       Peterson’s first PCRA counsel filed a detailed, albeit untimely,
       PCRA Petition and an appellate brief on behalf of Peterson[,]
       following the denial of PCRA relief on his first PCRA [P]etition.
       Therefore, contrary to the PCRA court’s finding, Peterson’s claim
       regarding first PCRA counsel’s defective representation did not
       constitute “abandonment[,]” and fails to satisfy the “unknown
       facts” exception to the PCRA’s timeliness requirements.

Id. at *8-*9.

       The Pennsylvania Supreme Court granted allowance of appeal, and

ultimately reversed the Order of this Court. Commonwealth v. Peterson,

192 A.3d 1123 (Pa. 2018). Our Supreme Court concluded that Peterson’s first

PCRA counsel was ineffective per se, as counsel had filed Peterson’s first PCRA

Petition one day beyond the statutory time period for filing a PCRA petition.

Id. at 1130. The Supreme Court concluded that Peterson had met the PCRA’s

timeliness exception set forth at 42 Pa.C.S.A. § 9545(b)(1)(ii).3 Peterson,

192 A.3d at 1130-31. Consequently, the Supreme Court remanded to this

Court to address the merits of Peterson’s appeal of the PCRA court’s March 4,

2014 Order, which had denied his first PCRA Petition. Id. at 1132.

       On December 26, 2018, this Court filed its Memorandum affirming the

Order of the PCRA court. Commonwealth v. Peterson, No. 141 WDA 2016


____________________________________________


3  Section 9545(b)(1)(ii) provides an exception to the PCRA’s timeliness
requirement where “the facts upon which the claim is predicated were
unknown to the petitioner and could not be ascertained by the exercise of due
diligence[.]” 42 Pa.C.S.A. § 9545(b)(1)(ii).

                                           -4-
J-S54038-16


(Pa.   Super.   filed   December   26,   2018)   (unpublished    memorandum).

Subsequently, Peterson timely filed a Motion for Reconsideration, arguing

that, applying the      Pennsylvania Supreme       Court’s recent decision in

Commonwealth v. VanDivner, 178 A.3d 108 (Pa. 2018), the PCRA court’s

analysis regarding his competency to enter a guilty plea is flawed.

Reargument Petition at 2. This Court thereafter granted panel reconsideration

to address the applicability of VanDivner to Peterson’s second issue on

appeal.

       Peterson raises the following claims for our review:

       1. Did the lower court err by finding that ... Peterson’s [] plea was
       knowingly, intelligently and voluntarily entered into where the
       lower court misle[d] Peterson during the plea colloquy by advising
       him that, although he was pleading to a life sentence, he had a
       right to go before the Board of Pardons and have the life sentence
       modified to include a lesser, minimum sentence and an eligibility
       for parole?

       2. Where Peterson suffered the violent destruction and removal of
       a substantial portion of the frontal lobes of his brain and other
       bullet[-]impact brain damage, did the lower court err by failing to
       credit the uncontroverted evidence and testimony from the only
       medical expert presented in the case[,] neuropsychiatrist Lawson
       Bernstein, M.D., that [Peterson] suffered a brain injury and
       damage that rendered him incompetent to make reasoned
       decisions, participate in his defense, and enter a knowing,
       voluntary and intelligent plea of guilty to two counts of first
       [-]degree murder?

Brief for Appellant at 5.

       As our Supreme Court has explained,

       an appellate court reviews the PCRA court’s findings to see if they
       are supported by the record and free from legal error. This Court’s
       scope of review is limited to the findings of the PCRA court and

                                       -5-
J-S54038-16


      the evidence on the record of the PCRA court’s hearing, viewed in
      the light most favorable to the prevailing party, in this case, the
      Commonwealth. In addition, [t]he level of deference to the
      hearing judge may vary depending upon whether the decision
      involved matters of credibility or matters of applying the
      governing law to the facts as so determined.

Commonwealth v. Fahy, 959 A.2d 312, 316 (Pa. 2008) (internal quotation

marks and citations omitted).

      Peterson first claims that the PCRA court improperly concluded that his

guilty plea was not unlawfully induced. Brief for Appellant at 16. Peterson

asserts that at his plea colloquy, the trial court stated the following:

      [I]f you receive a life sentence, your sentence is life. There is no
      minimum term at this point. As your attorneys have explained to
      you, probably, you have a right to go before the Governor’s
      Pardon Board during the time of this sentence, and ask them to
      set a minimum sentence so that your sentence is no longer life,
      but it’s x amount of years to life. And then you have the right to
      ask to be paroled once your minimum sentence is served, but
      when you are sentenced, you have to go in with the understanding
      that right now your sentence is mandatory life, and there is no
      minimum, and that’s up to the Governor’s Pardons Board to
      handle at some time in the future.

Brief for Appellant at 17-18 (quoting N.T. (Plea Colloquy), 9/16/93, at 32-33).

According to Peterson, the trial court’s statement was misleading, and instilled

him a belief that his life sentence would be converted, in a later proceeding,

to “x amount of years” as a minimum sentence, and a maximum sentence of

life in prison. Brief for Appellant at 18. Peterson argues that the trial court’s

explanation led him to believe that there is a routine administrative process

governing relief from a life sentence. Id. at 19. Peterson asserts that the

trial court’s statement was convoluted and mislead him regarding what is, in

                                      -6-
J-S54038-16


reality, “the extraordinary and extrajudicial right of the Governor …, with the

unanimous consent of the Board of Pardons, to grant a plea for executive

mercy in the form of a pardon or commutation.” Id. On this basis, Peterson

asserts that he was misled by the trial court to accept the plea based upon

the incorrect statements regarding the length of his sentence. Id. at 22.

      In its Opinion, the PCRA court addressed Peterson’s claim and concluded

that it is not supported in the record. See PCRA Court Opinion, 3/4/14, at

19-20. We agree with the sound reasoning of the PCRA court, as set forth in

its Opinion, and affirm on this basis as to Peterson’s first claim. See id.

      In his second claim, Peterson asserts that his guilty plea was unknowing

and involuntary because he was incompetent at the time he tendered his plea.

Brief for Appellant at 22. Peterson argues that the PCRA court improperly

disregarded the only medical testimony and evidence in the case, which

established that Peterson’s brain injury rendered him “incompetent to make

reasoned decisions, participate in his defense, and enter a knowing, voluntary

and intelligent plea of guilty[.]”   Id.    Peterson directs our attention to

undisputed evidence that he had suffered profound brain damage, “consisting

of destruction to both frontal lobes of his brain[,]” after being shot the face




                                     -7-
J-S54038-16


with a .357 caliber revolver.4 Id. at 23. Peterson further directs our attention

to evidence that persons with his type of brain injury

       are rendered compliant and appear to be cooperative and
       agreeable[,] even though they have little or no ability to actually
       look out for their own interest, weigh, reason, or consider
       alternative courses of action or risks and benefits associated with
       the actions they are agreeing to.

Id. (citing N.T., 6/5/13, at 34-35).

       Peterson states that the only medical expert to testify at the hearing

was Lawson Bernstein, M.D. (“Dr. Bernstein”).        Brief for Appellant at 24.

According to Peterson, Dr. Bernstein presented evidence that the type of

neurological and neuropsychological dysfunction suffered by Peterson “robbed

him[,] or severely diminished [Peterson’s] capacity to engage in the type of

decision-making that’s described in the colloquy.” Id. (citation and internal

quotation marks omitted). Peterson contends that the type of brain damage

he suffered rendered him incapable of entering a knowing, voluntary and

intelligent guilty plea. Id. at 26. Peterson thus argues that the PCRA court

abused its discretion in disregarding Dr. Bernstein’s uncontradicted testimony,

and unduly relying upon the testimony of Peterson’s former counsel. Id. at

27, 28.




____________________________________________


4 Prior to shooting the victims, Peterson had threatened to kill the victims and
then himself. N.T. (Guilty Plea), 9/16/93, at 38. After killing the victims,
Peterson was found bleeding from the face, with a .357 revolver laying on the
floor next to his body. Id. at 43.

                                           -8-
J-S54038-16


      In his Application for Reconsideration, Peterson alleges that the PCRA

court improperly focused upon Peterson’s ability to talk, while ignoring his

mental   deficiencies,   as   described   by   his   expert.    Application   for

Reconsideration at 7-8. Peterson claims that, since the PCRA court’s 2014

determination, the law has changed regarding the appropriate analysis of a

claim of intellectual disability. Id. at 5-6. According to Peterson, PCRA courts

are now required “to engage in an analysis of evidence that focuses on a

defendant’s mental weaknesses, and not just mental strengths, as provided

most recently in the VanDivner opinion.” Id. at 6.

      Peterson argues that the gunshot wound he suffered renders him

“compliant[,] and makes him appear to be cooperative and agreeable, even

though he has little or no ability to look out for his own interests.” Id. at 7.

Peterson asserts that he is unable to weigh, reason, or consider alternative

courses of action, “or risks associated with his actions.” Id. According to

Peterson, the PCRA court improperly failed to consider his weaknesses,

instead focusing on Peterson’s ability to talk.      Id.   Peterson posits that,

pursuant to our Supreme Court’s holding in VanDivner, and its progeny, a

trial court rendering a competency determination is required to engage in an

analysis that focuses on a defendant’s mental weaknesses, “and not just

mental strengths[.]” Id. at 6. Based on the evidence presented, Peterson

argues, he was not competent to tender a knowing, voluntary and intelligent

plea. Id. at 8.


                                     -9-
J-S54038-16


      “[A] plea of guilty will not be deemed invalid if the circumstances

surrounding the entry of the plea disclose that the defendant had a full

understanding of the nature and consequences of his plea and that he

knowingly and voluntarily decided to enter the plea.”        Commonwealth v.

Fluharty, 632 A.2d 312, 315 (Pa. Super. 1993).

      “Our law presumes that a defendant who enters a guilty plea was
      aware of what he was doing. He bears the burden of proving
      otherwise.” Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.
      Super. 2003) (internal citation omitted).          The entry of a
      negotiated plea is a “strong indicator” of the voluntariness of the
      plea. Commonwealth v. Myers, 434 Pa. Super. 221, 642 A.2d
      1103, 1106 (Pa. Super. 1994). Moreover, “[t]he law does not
      require that [the defendant] be pleased with the outcome of his
      decision to enter a plea of guilty: All that is required is that [his]
      decision to plead guilty be knowingly, voluntarily and intelligently
      made.” Commonwealth v. Anderson, 995 A.2d 1184, 1192
      (Pa. Super. 2010).

Commonwealth v. Reid, 117 A.3d 777, 783 (Pa. Super. 2015). In assessing

the adequacy of a guilty plea colloquy and the voluntariness of the subsequent

plea, “the court must examine the totality of circumstances surrounding the

plea.” Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009).

      By statute,

      [w]henever a person who has been charged with a crime is found
      to be substantially unable to understand the nature or object of
      the proceedings against him or to participate and assist in his
      defense, he shall be deemed incompetent to be tried, convicted or
      sentenced so long as such incapacity continues.

50 P.S. § 7402(a). Thus, a competency determination involves an assessment

of a defendant’s ability, at the time of trial, to consult with counsel, participate




                                      - 10 -
J-S54038-16


in   his   defense,     and    understand      the   nature   of   the   proceedings.

Commonwealth v. Hughes, 865 A.2d 761, 788 n.29 (Pa. 2004).

       Competence to plead guilty depends upon whether the defendant
       has the “ability to comprehend his position as one accused of
       murder[,] and to cooperate with his counsel in making a rational
       defense,” Commonwealth ex rel. Hilberry v. Maroney, 424 Pa.
       493, 227 A.2d 159, 160 (Pa. 1967); accord Commonwealth v.
       Chopak, 532 Pa. 227, 615 A.2d 696, 699 (Pa. 1992), and whether
       he has “sufficient ability at the pertinent time to consult with his
       lawyers with a reasonable degree of rational understanding, and
       [has] a rational as well as factual understanding of the
       proceedings against him.” Commonwealth v. Minarik, 493 Pa.
       573, 427 A.2d 623, 628 (Pa. 1981) (quoting Commonwealth v.
       Turner, 456 Pa. 309, 320 A.2d 113, 114 (Pa. 1974)); accord
       Commonwealth v. Appel, 547 Pa. 171, 689 A.2d 891, 899 (Pa.
       1997). The determination of competency is a matter for the sound
       discretion of the trial court and will not be disturbed absent a clear
       abuse of that discretion. Commonwealth v. Hughes, 521 Pa.
       423, 555 A.2d 1264, 1270 (Pa. 1989).

Commonwealth v. Frey, 904 A.2d 866, 872 (Pa. 2006).

       In VanDivner, the Pennsylvania Supreme Court did not create a new

test for competency as pertaining to a defendant’s competence to stand trial.

Rather, the VanDivner Court applied the holding of the United States

Supreme Court in Atkins v. Virginia, 536 U.S. 304 (2002). In Atkins, the

Supreme Court declared that executions of retarded criminals violated the

Eighth Amendment prohibition of cruel and unusual punishment. 5                  See



____________________________________________


5  The Atkins Court explained that “[t]he Eighth Amendment succinctly
prohibits ‘excessive sanctions. It provides: ‘Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.’” Atkins, 536 U.S. at 311 (citation omitted).


                                          - 11 -
J-S54038-16


Atkins, 536 U.S. at 321 (stating the Supreme Court’s conclusion that capital

punishment “is excessive and that the Constitution places a substantive

restriction on the State’s power to take the life of a mentally retarded

offender”) (citation omitted).

      In Commonwealth v. Miller, 888 A.2d 624 (Pa. 2005), our

Pennsylvania Supreme Court held that, to obtain relief on an Atkins claim,

the defendant must show, by a preponderance of the evidence, that he is

mentally retarded, as defined by the American Psychiatric Association (“APA”)

or the American Association of Mental Retardation (“AAMR”). Id. at 626-27.

The Miller Court explained that,

      [t]he AAMR defines mental retardation as a “disability
      characterized by significant limitations both in intellectual
      functioning and in adaptive behavior as expressed in the
      conceptual, social, and practical adaptive skills.”          Mental
      Retardation[: Definition, Classifications, and Systems of Supports
      (10th ed. 2002) (Mental Retardation)], at 1. The American
      Psychiatric Association defines mental retardation as “significantly
      subaverage intellectual functioning (an IQ of approximately 70 or
      below) with onset before age 18 years and concurrent deficits or
      impairments in adaptive functioning.” [Diagnostic and Statistical
      Manual of Mental Disorders (4th ed. 1992) (DSM-IV),] at 37.
      Thus, ... both definitions of mental retardation incorporate three
      concepts: 1) limited intellectual functioning; 2) significant
      adaptive limitations; and 3) age of onset.

Id. at 629-30 (footnote omitted, emphasis added).

      In VanDivner, the Pennsylvania Supreme Court was asked to

determine whether the defendant was intellectually disabled, and, thus,

ineligible for the death penalty under Atkins. VanDivner, 178 A.3d at 109.

In addressing this issue, the VanDivner Court recognized that,

                                     - 12 -
J-S54038-16


          in determining whether an individual has significant limitations in
          adaptive functioning, the focus should be on an individual’s
          weaknesses — not his or her strengths — as [intellectually
          disabled] people can function in society and are able to obtain and
          hold low-skilled jobs, as well as have a family. This is represented
          in the DSM-IV and [AAIDD’s] definitions by an individual’s
          classification as [intellectually disabled] even though he may have
          relatively strong skills in distinct categories.

Id. at 117 (emphasis added) (quoting Commonwealth v. Williams, 61 A.3d

979, 992 (Pa. 2013). Thus, our Supreme Court’s focus upon an individual’s

strengths was only part of its consideration of whether the defendant had

“significant adaptive limitations,” in the context of an Eighth Amendment

challenge to the application of the death penalty. See id. Because this case

does not involve an Atkins challenge to the application of the death penalty,

our Supreme Court’s analysis in VanDivner affords Peterson no basis for

relief.

          Applying the appropriate standard, the record supports the PCRA court’s

determination that Peterson entered a knowing, voluntary, and intelligent

guilty plea, and that he failed to demonstrate a manifest injustice warranting

the withdrawal of his plea.         See PCRA Court Opinion, 3/14/14, at 3-17

(summarizing the testimony presented at the evidentiary hearing), 26-27

(addressing Peterson’s claim of an unknowing and involuntary plea).              The

PCRA court’s findings are supported in the record, and its legal conclusions

are sound. See id. We therefore affirm on the basis of the PCRA court’s

Opinion with regard to this claim. See id.




                                         - 13 -
J-S54038-16


      In his third claim, Peterson argues that his plea was unknowing and

involuntary, because the trial court never inquired of Peterson whether he had

considered the viability of all possible defenses, “as Peterson himself

understood them.” Brief for Appellant at 29. Peterson contends that,

      [b]ased on the unique circumstances of this case, and indications
      that [he] might have some memory relevant to possible defenses,
      but definitely no memory of the alleged crime, the [trial] judge
      should have explored with [him] directly what he understood
      about potential defenses he might have raised and why he did not
      wish to pursue them….

Id. at 31.

      In its Opinion, the PCRA court addressed this claim and concluded that

it lacks merit. See PCRA Court Opinion, 3/14/14, at 19 (stating that Peterson

offered no testimony from himself or anyone else that he was not apprised of

the defenses available to him), 20 (summarizing plea counsel’s testimony that

counsel discussed with Peterson all possible defenses, and that Peterson

acknowledged during the plea colloquy that such discussions took place).

Because the PCRA court’s findings are supported in the record, and its legal

conclusions are sound, we affirm on the basis of the PCRA court’s Opinion with

regard to this claim. See id.

      Order affirmed.




                                    - 14 -
J-S54038-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/28/2019




                          - 15 -
                                                                                        Circulated 11/30/2018 12:04 PM
                                                                                        Circulated 02/19/2019 01:20 PM



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     IN THE COURT OF COMMON PLEAS OF CRAWFORD COUNTY, PENNSYLVANIA


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                                    MEMORANDUM AND ORDER

    Anthony J, Vardaro, P.J.                                                        March 3, 2014

            The Defendant, on September I 6, 1993, was facing two counts of first degree Murder
    with the Commonwealth seeking the death penalty for each count and one count of Burglary as a
    first degree felony when as the jury was assembled available to be selected, he pied guilty to two
    counts of Murder in the first degree for the killings of Lynette Bleutge and Scott Stivason,

           He was sentenced on November 3, 1993 to two terms of life imprisonment to run
    consecutive to one another and filed no direct appeal.

           On January 17, 1997 the Defendant, through private counsel, filed a "Petition for Post
    Conviction Relief".

           In that petition he raised the following issues:

                   1. Under both the constitution of this Commonwealth and the constitution of the
                   United States, when the Defendant entered his plea there could be no reliable
                   adjudication of guilt or innocence because of his Jack of competence and thus he
                   was deprived of due process oflaw. ·

                  2. His trial attorneys were ineffective for allowing him to enter a guilty plea when
                  he was not competent to aid his counsel In the detcnnination of whether to enter a
                  plea or go to trial and when he was not competent to assist his counsel.

                  3. Defendant's trial counsel were ineffective for failing to pursue a direct or
                  interlocutory appeal regarding the Commonwealth 's tardy notice of its intention
                  to seek the depth penalty.



                                                       EXHIBIT
I



                    4. The Defendant at the time of his guilty plea was not apprised of the effects of a
                    life sentence or alternatively two consecutive life sentences versus concurrent
                    sentences nor was he apprised of the defenses available to him including the plea
                    of guilty by mentally ill and one of diminished capacity by virtue of intoxication
                    or mental health. Additionally, counsel was ineffective because the Defendant
                    could not fully communicate the events leading up to the crime and therefore no
                    plea should have been entered without an adjudication of competency by a
                    qualified physician or other healthcare provider.

                    5. The Defendant and his family were led to believe that the Defendant would be
                    eligible for parole at some time and defenses available to him were not adequately
                    explained by counsel or the Court with distinctions between the various degrees
                    of criminal homicide.

                    6. The Defendant's guilty plea was unlawfully induced because of his
                    incompetence to plead guilty and a representation to himself and his family that
                    he would be eligible for parole at some point and he was unable to act on his own
                    behalf because of his mental condition and/or by virtue of medication he was
                    under the influence of at the time of the plea.

            On July 16, I 997 we entered a Memorandum and Order which was docketed of record on
    July 17, 1997.                     ·

            The Order stated that the Court Administrator was directed to schedule an evidentlary
    hearing and the record indicates. that a copy was provided to the Court Administrator. For some
    unknown reason that evidentiary hearing was never scheduled and that failure was not brought to
    the attention of the Court by Defendant's counsel or anyone else until the Defendant sent a letter
    to the Clerk of Courts dated September 24, 2012 and docketed on October 2, 2012.

            A copy of that letter was provided to the undersigned and upon reviewing it, the Court
    noted that there was reference to a pending PCRA before the Court.

            That caused the undersigned to review this matter and a determination was made that the
    evidentiary hearing had never been set. Therefore we entered an Order on October 11, 2012 with
    an attached Memorandum directing that the evidentiary hearing be scheduled.

           The Court Administrator did so on October 16, 2012 and after various requests for
    continuances, the hearing was conducted over a two day period, finishing on August 28, 2013.

            The parties were given an opportunity to review the {'CRA hearing transcripts, brief the
    issues and orally argue before the Court.

           While the other issues have been raised as indicated, the focus of the testimony presented
    on behalf of the Defendant at the evidentiary hearing and the argument that followed is that the
    Defendant was not mentally competent to enter his plea on September 16, 1993 and his attorneys
    were ineffective for allowing him to enter that plea based on his mental condition at the time.


                                                  .   2
                                           TESTIMONY

       The Defendant called one witness, Dr. Lawson Bernstein, who examined the Defendant
 sometime in the fall of 1997 and authored a report dated November 15, I 997.
                                                                                                        t ..
        Dr. Bernstein is a clinical and forensic neuropsychiatrist,

        The opinions of Dr. Bernstein were based on his 1997 interview for one or two hours
 with the Defendant and his review of medical records pertaining to the Defendant for the time
-period following his self inflicted gunshot wound on September 28, 1992, after the murders of
 Lynette Bleutge and Scott Stivason.

       Dr. Bernstein concluded that the Defendant, as a result of the self inflicted gunshot
wound, suffered damage to the frontal lobes of his brain such that he suffered from
encephalomalacia which was a substantial overt tissue disruption of the brain essentially
destroying the frontal lobes.

        He further indicated that the frontal lobes of the human brain function in determining" ...
the capacity to Weigh, reason and consider different courses of action and the risks and benefits
of such actions. And the degree of impairment in that type of capacity would increase as the
complexity-of the task increases. So the cognitive wherewithal to decide to tie one's shoe is
different than the cognitive wherewithal to decide whether or not to proceed to trial." (Transcript
of Dr. Bernstein's testimony of June 5, 2013, pg. 13, lines 16-23).

        He further indicated the other areathat would be impaired by damage to the frontal lobes
of the brain involved initiation and motivation. Specifically he stated that people with frontal
lobe damage can suffer from what is called abulia, which affects their ability to interact with
their environment and reduces their ability to advancetheir own interests.

       The doctor concluded that because of his cognitive abnormalities from the frontal lobes·
damage, the Defendant was " ... a uniquely ineffective individual." (Transcript of Dr.
Bernstein's testimony of June 5, 2013, pg. 14, line 11).

       Dr. Bernstein further testified that with the type of injury to the frontal lobes sustained by
the Defendant) spontaneous recovery would take two years and at that point essentially there
would be no further recovery.

        The doctor further testified that since the injury to the Defendant occurred on September
28, 1992 and he entered his plea on September 16, 1993, there was not sufficient time for his
brain to organically heal.

        The doctor further testified that specifically based cm the infonnation he reviewed and his
interview of the Defendant in i997, he concluded that the Defendant's " ... presentation is
considered consistent with abulia, He has paucity of spontaneous motor movements and,
frankly, he had a paucity of speech." (Transcript of Dr. Bernstein's testimony of June 5, 2013,
pg. 19, line 11-14).



                                                  3
            Dr. Bernstein also noted that the Defendant had very little memory for the events leading
    up to the alleged homicides and the events thereafter, including the legal proceedings that took
    place almost a year later which the doctor found was consistent with anterograde and retrograde
    amnesia which occur after significant traumatic brain injury.
                                                                .                         .
           The doctor noted that when he interviewed the Defendant in 1997 "He [the Defendant]
    recounted poor memory for his pretrial hearing and for the ensuing legal events. He really
    couldn't give me any details about that." (Transcript of Dr. Bernstein's testimony of June 5�
    2013, pg. 20, line 5-7).

             Dr. Bernstein indicated he did a brief cognitive screening examination on the Defendant
    giving him the Folstein Mini-Mental Status Evaluation and that confirmed that the Defendant
    had " •.. severe deficits in kind of across the board." (Transcript of Dr. Bernstein's testimony of
    June 5, 2013, pg. 20, line 13�15).

            The witness indicated that screening indicated that the Defendant suffered from
    diaschesis which is damage to other areas of the brain caused by the significant damage to the
    frontal lobe. He indicated this resulted in dysfunction of the temporal lobes and parietal lobes
    which affected " ... short term-memory, things of that nature". (Transcript of Dr. Bernstein's
    testimony of Junes, 2013, pg. 21, lines 12w13).

            The doctor also indicated that based on history taken from the Defendant by him. the
    Defendant had" ... a pretty significant history of alcohol abuse, really severe alcohol abuse. He
    never had any withdrawal seizures, but he had had blackouts. And by .history taken from him, he
    also had episodes of delirium tremens which is episodes where you become you shake and
                                                                                 w-



    can't sleep, and that sort of thing. But more importantly, you also have disturbance of cognition
    and you may hallucinate:' (Transcript of Dr. Bernstein's testimony of June 5, 2013, pg. 22, line
    4-11)

           Dr. Bernstein concluded that based on the DSM-IV which was in effect at the time he
    assessed the Defendant in 1997, he. diagnosed the Defendant with organic cognitive and amnestic
    disorder of moderate to severity which was chronic and untreated as of 1997. He also
    determined the Defendant had organic personality disorder due to the brain trauma, abulic type,
    which was chronic and untreated.
I
            The doctor further indicated that he had diagnosed the Defendant with alcohol abuse and
    likely dependence but he was in remission in 1997 because he was incarcerated.

            The doctor also indicated that based on the records he had reviewed, the Defendant had a
    history of recurrent major depressive disorder predating the September 28, 1992 injury to his
    frontal lobe.                                                            ·

           Dr. Bernstein indicated that based on his review of the Presbyterian Hospital records he
    believed the Defendant was intoxicated at the time of the shooting.




                                                    4
       Dr. Bernstein testified that prior to the Defendant entering his guilty plea on September
16, 1993, he had a psychiatric evaluation by Dr. Frank Yohe of the Meadville Medical Center on
November 9, 1992 which " ... was not an adequate evaluation of the individual's cognitive
capacity." (Transcript of Dr. Bernstein's testimony of June 5, 2013, pg. 28, lines 14-15)

       Dr. Bernstein also concluded that he suspected it was" ... more likely than not ... " that the
Defendant at the time he entered his plea could comprehend that he had been charged with
murder (Transcript of Dr. Bernstein's testimony of June 5, 2013, pg. 29, lines 8-9), but he did not
have the ability to cooperate with his counsel in making a rational defense.

        In support of the latter conclusion, Dr. Bernstein indicated" ... that individuals who are
abulic are extraordinarily compliant. They will do practically anything that is suggested to them,
especially when they are in the convalescent phase after an acute brain injury". (Transcript of
Dr. Bernstein's testimony of J une 5, 2013, pg. 29, line 22 through. pg. 30, line 1 ).

       The second reason for that opinion was in fact parts of the Defendant's brain were
missing from his injury that would be involved in critical decision making.

        The doctor also testified that when the Defendant was responding to questions during the
guilty plea colloquy on September 16, 1993, his " ... neurological and neuropsychological
dysfunction ... rob[bed] the individual [the Defendant's] or severely diminish their (sic) capacity
to engage in the type of decision-making that's described in the colloquy". (Transcript of Dr.
Bernstein's testimony of JW1e 5, 2013, pg. 32, lines 2-5).

        Dr. Bernstein indicated that he believed the Defendant did not have the capacity to
engage in consultation with his lawyers as to how to proceed and could not weigh the risks and
benefits of different strategies. (See Transcript of Dr. Bernstein's testimony of June 5, 2013, pg.
32, line 24 through pg. 33, line 6).                                         ·

        With regard to his ability to render an opinion concerning the Defendant' s mental
capacity at the time he entered the plea on September 16, 1993 even though he examined the
Defendant four years later, Dr. Bernstein stated:

                        If I took anybody in this room and they experienced the same anatomy of
               injury as this gentlemen) these are not- - In that first, at least, year, you're not in a
               position to make complicated decisions. You shouldn't buy a house. You
               shouldn't engage in a decision to marry someone. Anything that's high stakes
               that requires reflection and weighing of options and outcomes, And, again, this
               isn't just a traumatic brain injury that there was bruising that then resolved. This
               is destruction of tissue in the seat of the brain that is involved With this type of
               crltical decision-making.

                       We have the most well-developed frontal lobes of any mammal. That's
                            us
               what makes uniquely human and gives us the capacity for self-knowledge and
               self-direction, more than just instinctive behavior. You remove that - - Well, back
               in the bad o)d days when we did lobotomies on people, that's effectively what this



                                                  5
                       is. This is a trauma-induced lobotomy. You end up with an individual who has
                       had the critical area of the brain removed that is involved in the type of high-
                       stakes decision-making that we are discussing. Now, granted, given some period
                       of time there may be some spontaneous recovery, but that's a two-year window.
                       You know, at 11 or 12 months, 99 percent of the patients with this type of injury
                                                                                                            i.
                      'are going to lack their capacity, not to choose what they want for dinnerand not
                       to tie their shoe, but to make a. decision of this magnitude, (Transcript of Dr.
                       Bernstein's testimony of June 5, 2013, pg. 34, lines 9-18 and pg. 34, lines 23 ·
                       through pg. 35, line 13).

             Additionally, with regard to whether the Defendant might have fallen into the I% that
      would be outside the norm, Dr. Bernstein stated:

                              ..... this is somebody with significant anterograde and retrograde amnesia,
                      who, again, has encephalomalacia which is a big deal. There is the one in 100
                      patients, maybe less than that, who would have some sort of miraculous retention
                      of such capacity, but the vast, vast majority would be as this individual is, in my
                      opinion, or was, lacking that capacity." (Transcript of Dr. Bernstein's testimony
                      of June 5, 2013, pg. 35, line 24 through pg. 36, line S).

              Finally, in his direct testimony Dr. Bernstein indicated that there are tests available to
      ascertain levelof competence and hewassurprisedthese were.not done onMr.Peterson,

              On cross-examination Dr. Bernstein indicated that when he Interviewed the Defendant in
      1997 he did not recall interviewing David Truax or Gregory Keenan who were the Defendant's
      attorneys when he entered his plea in 1993 (Transcript of Dr. Bernstein's testimony of June 5,
      2013. pg. 39, line"2-5), and he did not interview anyone who saw the Defendant on the day he
      entered his plea on September 16, 1'993. (Transcript of Dr. Bernstein's testimony of June 5,
      2013, pg. 39, lines 9-10).                        ·

              The doctor further indicated that he may have reviewed a presentence report prepared by
      Crawford County Adult Probation in October 1993 but no longer had his file to determine that
      for sure since he file had been destroyed and he assumed he did not interview Robert Stein, an
      adult probation officer. (Transcript of Dr. Bernstein's testimony of June 5, 2013, pg. 40, line 19
      through pg. 41, line 5).
)


             In regard to his review of a report authored by Dr. Frank Yohe from the Meadville
      Medical Center as a result of his consultation with the Defendant on November 9, 1992, Dr.
      Bernstein agreed that Dr. Yohe indicated "The patient realizes that he was arraigned on I 1/6."
      (Transcript of Dr. Bernstein's testimony of June 5, 2013, pg. 42, lines 16 through pg. 43, line 2).
,.;
              Dr. Bernstein further testified that Dr. Yohe's report stated "He [the Defendant] states
      that there are three charges against him; two for homicide and one for burglary." (Transcript of
      Dr. Bernstein's testimony of June 5, 2013, pg. 43, line 23 through pg. 44, line 1), and that the
      Defendant denied those charges to Dr. Yohe indicating he had no recollection of those incidents.
      (Transcript of Dr. Bernstein's testimony of June 5, 2013, pg. 44, lines 2-4).
)


                                                        6
            It was further testified by Dr. Bernstein. that Dr. Yohe's report indicated that in response
    to questioning from Dr. Yohe the report indicated " He [the Defendant] denies any psychotic
    symptoms at the present time. He states that even though through all of this, he is not
    depressed." (Transcript of Dr. Bernstein's testimony ofJune 5, 2013, pg. 44, lines 5w10).

           With regard to Dr. Yohe's reference to a mental status examination of the Defendant, the
    foJlowing exchange took place during Dr. Bernstein's testimony:

                           Q. Going down to mental status examination, sir, under that paragraph,
                    the doctor indicated the Defendant's eye contact is good. He is cooperative.

                           A. You read that correctly.

                           Q. He knows that today fa Monday, and he. thinks it is November 8,
                   instead of November 9. He knows the year. He knows person and place. He can
                   remember three out of three objects at three minutes. For Serials Seven, he gave
                   the answers of 93, 86, 58, 51. Is that a response - � Were those in response to the
                   questions that were asked by Dr. Yohe.

                           A. You read that correctly. l was not present when he made those
                   responses.

                            Q. I understand that. Now, if we start at 100, I believe the test starts at
                    l 00 on the Serial test.

                           A. You are correct.
                          Q. And you're supposed to subtract seven, tne next number would be 93,
                   and the next number would be 86?

                           A. But the next number after that would not be 58.

                           Q. I agree, sir. But the first two were right?

                           A. That is correct.
i
                           Q. Okay. - And the next two were wrong? ·

                           A. Correct.

                          Q. And this is a standard test used by psychiatrists in testing memory, or
                   doing some kind of testing?

                          A. Actually, it is not. As he writes in the next sentence, he wrote, quote,
                   "Other cognitive functioning is not tested at the present time."
                          Q. I understand that.
)


                                                      7
.,


                    A. Closed quote. Ifl might finish.

                    Q. Now--

                    A. I would like to finish my answer, if I could.
                   Q. I would like you to answer my question. ls the test that-he gave a test
            used by psychiatrists?

                   A. No. You would have to give the whole test. You can't just do Serial
            Sevens from 100.

                    Q.. Okay. Did you give Mr. Peterson a series of tests, the whole test?

                  A. Generally, that's what I do. But I don't have my file. But I'm
            assuming that's what I did.

                    Q. And what were his answers on the test; do you remember?

                     A. I have not committed them to memory and it's been 16 years.
            (Transcript of Dr. Bernstein's testimony of June 5, 2013, pg. 44, line 11 through
            pg. 46, .line 5)

     A Further exchange took place in Dr ..Bernstein's cross-examination:

                    Q. Dr. Yohe indicated on the next page in the top paragraph, quote, "I
            think that he understands the charges against him."

                    A. You read that correctly.

                   Q. "I think at the present time he will be able to cooperate with his
            lawyer, although he does not remember a lawyer being present with him at
            arraignment, but evidently one was."

                    A. You read that - -

                    Q. "There is no evidence of psychosis at the present time," Am I correct
            in reading what Dr. Yohe dictated?

                    A. Correct. I think the internal logic of it is a bit lacking, but you read it
            correctly. I mean, that he can't remember there was a lawyer present at his
            arraignment, but he W&S going to be able to cooperate with his lawyer is a non
            sequitur. (Transcript of Dr. Bernstein's testimony of June 5, 2013, pg. 46, lines 6-
            22)




                                              8
        Dr. Bernstein was further cross-examined about the Defendant providing history to him
and his apparent mental condition in 1997.

       The doctor further indicated that he did not recall whether he had reviewed the     .
Defendant's plea colloquy of September "16, 1993 and indicated that his report did not mention it.
(Transcript of Dr. Bernstein's testimony of June 5, 2013, pg. 51, line 3-10).

        Further, he indicated when he saw the Defendant in 1997, the Defendant was not on
psychiatric medication and therefore he could infer that the Defendant was not receiving any care
at the Cresson State Correctional Institution, (Transcript of Dr. Bernstein's testimony of June 5,
2013, pg. 51, line 15 through pg 52, line 2).

        Dr. Bernstein indicated when he interviewed the Defendant in 1997 the Defendant had a
'"very poor memory" for the time of the plea on September 16, 1993 ·and he did not
spontaneously indicate that he had been mistreated at that time. {Transcript of Dr. Bernstein's
testimony ofJune 5, 2013, pg. 52, Iinel7 through pg. 53, line 7}.

         In response to questions from the Assistant District Attorney, Dr. Bernstein reiterated that
it is a physiological fact that spontaneous recovery from the type of injury the Defendant
received takes two years rather than in some cases less than two years as suggested by the
Assistant District Attorney. (Transcript of Dr. Bernstein's testimony of June 5, 2013, pg. 53,
lines 13-25).

       The doctor indicated that he had not reviewed any of the Defendant's x-rays from
Presbyterian Hospital. (Transcript of Dr. Bernstein's testimony of June 5, 2013, pg. 54, line 1-7).

         Finally, on cross-examination Dr. Bernstein indicated he did believe the Defendant
understood that he was charged with murder at the time he entered his plea and he had not
interviewed any of the Defendant's relatives who had seen him on. the day of the plea or near the
time of the plea. (Transcript of Dr. Bernstein's testimony of June 5, 2013, pg. 54, line 17- pg. 55,
line 2).

       On re-direct examination Dr. Bernstein indicated that he did not order any
neuropsychological testing at the time he interviewed the Defendant in 1997 because such testing
would not have reflected on his condition at the time he entered the guilty plea on September 16,
1993. (Transcript of Dr. Bernstein's testimony ofJune 5, 2013� pg. 55, line 10-16).

       Next the following exchange took place:

                       Q. Now, as a trained neuropsychiatrist, as a trained medical doctor,
               several references have been put to you about people observing Mr. Peterson
               when he, for instance, pleaded guilty and so forth. Can you tell by looking at an
               individual, can you judge their competence in any way?

                     A. No, especially in someone who is abulic. Many of his responses were
               monosyllabic, and that at least is delineated in the transcript, and that's pretty



                                                 9
\    ,



         -r




                     typical. (Transcript of Dr. Bernstein's testimony of June 5, 2013, pg. 55, lines 17-
                     25).

              The final exchange on re-direct examination was as follows:

I'                           Q. And Qr. Yohe, on Page 2 of his report, describes his impression as
                     frontal lobe injury. You agree that he suffered a frontal lobe injury; correct?

                             A. Yeah, l think that' s beyond contention.

                             Q. Right. In the next to last paragraph he says, I think that he probably
                     has a frontal lobe syndrome. What is that?

                              A. A frontal lobe syndrome would be the type of behavioral changes that
                     one would see after a frontal lobe injury. And frequently, it can either be abulia,
                     the' kind of bump-on-a-log phenomenon, or sometimes you get the opposite of
                     that. People who are wildly impulsive, and they need a sitter at the bedside,
                     otherwise they are going to run out of the hospital and into traffic.

                            Q. All right. Dr. Yohe, in that same paragraph, goes on to say, and as
                     such, we need to watch him for impulsivity, period.

                             A. Correct.

                             Q. I think that a guard should be with him at all times because with his
                     past action, we cannot rule out suicidality 100 percent. So he recommended
                     exactly what you said, that he needed a sitter; correct?

                             A. Yeah.

                             Q. In the first paragraph on that very same page, he says, I think that at
                     the present time he will be able to cooperate with a lawyer, although he does not
                     remember a lawyer being present with him at the arraignment, but evidently one
                     was. Is that statement, in your opinion, at all consistent with either the date this
                     assessment so-called occurred on, or the other findings in Dr. Yohe's report? In
                     other words, are they mutually - -

                            A. Yeah. Yeah. As 1 alluded to when the gentleman was questioning me
                     on cross-examination, I find the logic of the.sentence internally inconsistent. If a
                     guy can't remember his lawyer was there, we don't even get out of the gate as to
                     whether he can cooperate. There are more severe problems to be assessed.

                              Q. Do you find anything in Dr. Yohe's assessment that even if taken as
                     true alters your opinion, in any way, about Mr. Peterson's competence to have
                     entered a guilty plea in September of 1993?




                                                      10
      I   '




                                     A. No. (Transcript of Dr. Bernstein's testimony of June 5, 2013, page 56,
                             line 14 through page 5 8, line 5)

                      The Commonwealth offered no expert to rebut the opinions of Dr. Bernstein but did offer
              the testimony of Robert R. Stein and Gregory A. Keenan, Esquire.

                     Robert Stein testified that in ·1992 and 1993 he was an Adult Probation Officer for
              Crawford County whose duties included interviewing defendants who had pied guilty or been
              found guilty in preparation of what was called a pre-sentence report.

                     He was assigned to interview the Defendant after the Defendant pied guilty as part of his
              preparation of his pre-sentence report.

                     Mr. Stein indicated that he interviewed the Defendant on one occasion at the Crawford
              County Correctional Facility and prior to doing so had reviewed materials from the Clerk of
              Court's office and the District Attorney's file.

                      He indicated that he took notes of the conversation he had with the Defendant concerning
              the Defendant's background, family, work history, assets and debts and general biographical
              information and that the Defendant was able to understand his questions and respond to him
              verbally.

                     Mr. Stein testified that he understood the Defendant's answers and that none of his
              responses were "off-the-wall".

                     Mr. Stein indicated that the Defendant remembered specific events leading up to the
              murders but could not recall the actual murders.

                     Specifically, Mr. Stein indicated that the Defendant related to him the following:

                                    He was telling me that he was having problems with Ms. Bleutge, that he
                             was at Brian Sparks' home. He said he drank some coffee and they had discussed
                             moving. He wanted to make sure that Mr. Sparks would be willing to help him
                             because at times Mr. Sparks would back out at the lastmoment.

                                      He was telling me that the biggest problems he had with Ms. Bleutge at
                             the time was her daughter due to the fact that she was taking his truck without
                             permission. She was missing school and not where she was supposed to be but
                             the biggest problem was Brandy was not accepting his authority figure. He
                             claims that issue was resolved. And then he went on to talk about he had
                             problems with Ms. Bleutge due to her smoking marijuana. She had stopped for a
                             little while and then she started up again.

                                     He then was telling me that he went to the cable company. He then went
                             to the electronic (sic) company in Greenville. Then he went to a residence of
                             Chuck Noland; they were looking at a riffle (sic) scope. He stated that he



                                                             11


.,\
'\   '




                            remembered being atthe First Choice Bar. While there, he had something to eat
                            and he spoke with his cousin, Rick Kiskadden, At that time, he had asked his
                            cousin to meet him at the Highlander Bar. They met at the Highlander Bar; they
                            drank a few more beers.

                                    He stated that he called Jim Fields and apologized for not showing up
                            because apparently he was going to use his stock trailer to help· him move and he
                            didn't clean it out. After he Jeft the Highlander Bar he went back to Rick
                            Kiskadden's place wherethey did some more drinking where they discussed
                            moving belongings from Lynn's apartment.

                                    Later he discussed speaking with his cousin Janine Onderko, And then he
                            stated that he had called Lynn's apartment but vaguely remembers talking to her.
                            He stated that he was crying and upset because he knew Lynn wasn't home. And
                            then finally, he stated he did not remember - � he did not actually remember
                            anything about the- killings or what happened. And then when he woke from the
                            surgery, he was advised of the charges and basically stated that there was a part of
                            himself in there that he didn't know existed, (Transcript of Robert Stein's
                            testimony of August 28, 2013, pg. 18, line 4 through pg. 19, line 18).

                    Mr. Stein also indicated that the Defendant told him he had no juvenile or adult criminal
             record which Mr. Stein verified to be correct.

                     Further, with regard to his family history the Defendant was able to provide information
             on his father, mother, and sibling, including their names, occupations, where they lived and their
             ages.

                    Additionally, Mr. Stein testified that the Defendant told him he had been engaged three
             times prior to this incident and that he broke off one engagement and the other two were
             terminated by other girlfriends. The Defendant further related to Mr. Stein that he was engaged
             to Lynette Bleutge for approximately one year.

                     Mr. Stein indicated the following with regard to what the Defendant told him:

                                     Q. And did you ask him where he was living and how long he'd been
                            there?

                                     A. Yes.

                                     Q. And what did he tell you?
     )
                                  · A, He reported that he resided at C304 Woodland Heights, Meadville,
                            Pennsylvania. He was living there for approximately one year and six months.
                            He was living with Lynette, Brandy and Erin Bleutge at the time.

                                     Q. Did you ask him ifhe had any prior residences?



                                                             12



         >
                              A. I did.

                              Q. And what did he respond to you?

                              A. P.O. Box 390, Cochranton, Pennsylvania.

                              Q. How long did he tell you he was living there?

                              A. 18 years.

                              Q. Did he indicate if he was living with anybody?

                              A. Himself.

                         ,    Q. I'd like to go down. Did you ask him with regard to his education how
                      far he went in, school?

                              A. Yes.

                              Q. And what did he tell you?

                              A. He reported to me that he earned his OED in l 982.

                              Q. And did he have any vocational training?

                              A. He reported to me that he had night school for welding, small engine
                      repair, mechanical tool and die and computerized tool and die. (Transcript of
                      Robert Stein of August 28, 2013, pg. 24, line 4 through pg. 25, line 3),

             Mr. Stein indicated the Defendant was able to provide him with his height, weight, eye
      and hair color as well as the fact that he was an inactive Christian but still was reading the Bible.

              Additionally, the Defendant provided information to Mr. Stein regarding two scars he had
      as well as the fact he had a drinking problem which started when his cousin died.

             Mr. Stein testified that the Defendant also told him that his most recent job was for Cabot
      Oil from Carlton, Pennsylvania and he was earning $12.04 an hour. He indicated he had been
      working four years and six months for Cabot and was laid off at the time he was interviewed.
      Mr. Stein indicated the Defendant also told him that he had worked before that at Pipe Line
,,\   Systems on Airport Road in Meadville as a welder's helper operator earning $10.00 an hour. He
      had worked there for four years and left to get a better job.

             Mr. Stein also indicated that the Defendant reported that bis sole asset was a 1989 Chevy
      truck valued at $9,500 and that he had a truck payment of $289.00 a month with car insurance of
      $766.00 a year.



                                                       13


 )
I           .




                       He also reported to Mr. Stein that he enjoyed hunting, fishing and competing in archery
                shoots as well as carpentry.

                         Mr. Stein completed his direct testimony by indicating that the Defendant was responsive       '.
                                                                                                                        �:
                to all of his questions and was not evasive in any way. On cross-examination, Mr. Stein testified
                that be did not recall the specific date of his interview with the Defendant but that the date of the
                presentence report was October 22, 1993.

                        On cross-examination. Mr. Stein indicated while he had reviewed police reports, the
                affidavit of probable cause and witness statements prior to speaking with Mr. Peterson, what he
                wrote in the presentence report as attributable to Mr. Peterson was solely based on what Mr.
                Peterson told him but he did not recall whether he asked Mr. Peterson any supplemental
                questions.

                        Finally on redirect, Mr. Stein stated since his report was dated October 22, 1993. his
                interview would have occurred before that date.

                       Gregory Keenan, Esquire, testified that he was a practicing attorney in the
                Commonwealth of Pennsylvania in 1992 and 1993 and that he was one of two attorneys who
                represented the Defendant with regard to the murder charges filed against him, the other being
                David Truax, Esquire, who passed away on July 26, 2002.

                       Mr. Keenan testified that he and Mr. Truax worked together representing the Defendant
                from the time he was charged through the time he was sentenced which included face to face
                meetings with the Defendant, representation at the preliminary hearing and at the time of formal
                arraignment.

                       He testified that he and Mr. Truax represented the Defendant at a pretrial hearing.
                regarding the Commonwealth's purported tardy note that they were seeking the death penalty
                and that Mr. Truax. had filed the necessary objection.

                       Mr. Keenan indicated that he attended the hearing and that a decision on that issue was
                rendered by the Court.                                        ·

                       The witness testified that shortly before the time of trial a plea offer was made by the
                Commonwealth that the Defendant could plead guilty to two counts of First Degree Murder with
                two consecutive life sentences in return for the death penalty being taken off the table.1

                      Mr. Keenan indicated that he was not aware of any other offers being made by the
                Commonwealth, including any that would have been for a lesser charge of Murder against the
    .'. •
                Defendant.


                I Mr. Keenan's recollection of the plea agreement including an agreement for two consecutive
                life sentences is contrary to the actual plea agreement. He testified that his files for this case
                had been destroyed so- he did not have that available to him for review.


                                                                 14
l        I




                     Mr. Keenan indicated that when that offer was made it was discussed with the Defendant.

                    He also indicated that he had met with the Defendant on numerous occasions prior to that
             time and he was able to converse with the Defendant.

                     He testified that he was able to ask questions of the Defendant and the Defendant was
             able to answer those questions.

                     Mr. Keenan further testified that he met with the Defendant prior to the September 16,
              1993 plea a number of times and the offered plea had been discussed with the Defendant,
             including what the agreement would be with regard to two consecutive life sentences.

                    Mr. Keenan a1so indicated that the Court's ruling allowing the death penalty to go
             forward was discussed with the Defendant and he was told that ifhe pled guilty he would no
             longer be able to challenge further the notice that the Commonwealth was seeking the death
             penalty was tardy.

                    Mr. Keenan further indicated that the Defendant 'gave appropriate responses to whatever
             was asked of him and he was able to answer any questions put to him.

                     The witness indicated that prior to pleading, other degrees of Criminal Homicide,
             including Third Degree Murder, Voluntary Manslaughter and Involuntary Manslaughter were
             discussed with the Defendant.

                     Mr. Keenan testified that up to the time of the plea no family member of the Defendant
             had indicated to him that the Defendant was not mentally competent.

                     He also indicated that he and Mr. Truax discussed with the Defendant that he would be
             pleading to First Degree Murder of both decedents.

                    Mr. Keenan further indicated that he and Mr. Truax had gone over the criminal
             information with the Defendant with regard to the allegations that had been made against him.

                     He testified further they had discussed with the Defendant his right to a jury trial and had
    ;.       discussed with him the presumption of innocence.

                    Mr. Keenan indicated that the Defendant was never told anything other than the two life
             sentences would run consecutive and nothing other than life meant life with regard to the
             duration.

                    'rhe witness indicated that the Defendant was also told that if he pied guilty ultimately it
             was the Court's decision as to what sentence to impose even though the life sentences were
             mandatory.

                   Mr. Keenan indicated that during his representation of Mr. Peterson, he estimated that he
             had met ten times with-Mr. Truax and the Defendant.



                                                              15
        Further, Mr. Keenan specifically stated:

                      It was always my impression that Mr. Peterson understood exactly what
                                                                                                       l. -
               we were communicating to him based upon his responses to what we
               communicated to him. (Transcript of Gregory Keenan testimony of August 28,
               2013, pg. 40, lines 18·20)

        Mr. Keenan further indicated that after the Defendant entered his plea on September 16,
1993 and before sentencing on November 3, 1993, he met with the Defendant and the Defendant
never indicated he wanted to withdraw his plea nor did he do so in any way after he was
sentenced on November 3, 1993.

        Mr. Keenan indicated that no petition for reconsideration of sentence was ever filed nor
was a direct appeal from the judgment of sentence.

       Mr. Keenan further testified that prior to the Defendant entering his plea, he and Mr.
Truax had received through discovery police reports and other information from the
Commonwealth which they shared with the Defendant.

        He also testified that at the time the plea was entered.he heard the outline of facts stated
by the District Attorney and everything that was said was consistent with the prior information
that had been received through discovery.

       Finally, Mr. Keenan testified that the Defendant's responses at the time of the entry of the
plea were identical Qr similar to those he had made to his attorney's prior to the plea and that he
never expressed any dissatisfaction with Mr. Truax or Mr. Keenan's representation to Mr.
Keenan's knowledge.

       On cross-examination Mr. Keenan testified that he did not know Mr. Peterson before he
began representing him so he would not have known whether he was acting the same or similar
or much different than before the self-inflicted injury he sustained.

       Mr. Keenan testified that he believed that they had received all of the medical records for
the Defendant from Meadville, St. Vincent and the University of Pittsburgh and that he was
aware that significant parts of the Defendant's brain had been surgically removed during surgery.

        Mr. Keenan testified that it was his recollection that the Defendant did not remember the
events of the murder or leading up to the murder.

       The witness was asked whether he or Mr. Truax had Defendant assessed by a psychiatrist
or neuropsychiatry or neuropsychologist and Mr. Keenan stated:

                       What I recall is that he was evaluated by a local psychiatrist by the name
               of Dr. Yohe. And that Dr. Yohe, as a result of his evaluation, provided Mr. Truax
               and I with the opinion that he was competent to stand trial and that lie was capable


                                                 16
          .   ·!




                                    to assist in his own defense. (Transcript of Gregory Keenan's testimony of
                                    August 28, 2013, pg. 46, line 23 through pg. 47, line 2),

                          Mr. Keenan also indicated that he believed that he and Mr. Truax received a report from
                                                                                                 a
                   Dr. Yohe but that since the entire file had been destroyed Jong ago, such report likely would
                   have been in that file.

                           He also testified that he did not recall whether Dr. Yohe had done any testing or whether
                   his contact with the Defendant was limited to a: half an hour at a local hospital. He then stated:

                                           I recall that we, Mr. Truax and 11 were comfortable in relying on his
·;                                  opinion based upon Information he relayed to us. (Transcript of Gregory
                                    Keenan's testimony of August 28, 2013, pg. 47� lines 12-14).


                          Mr. Keenan testified that he did not recall exactly how much prior to the guilty plea Pr.
                   Yohe's assessment would have been done but that it would have been months prior.

                           Further, he indicated that he did not recall how Dr. Yohe was selected but that Mr. Truax
                   had a lot of criminal defense experience and that he believed he was aware of Dr. Yohe and that
                   may have led him to select that particular psychiatrist.

                           Mr. Keenan testified that he was not trained in psychiatry or neuropsychiatry or
                   neuropsychology and assumed Mr. Truax was not and that he would not have been able to make
                   an assessment of what was really going on in the Defendant's mind and what he was capable of
                   judging.

                           Mr. Keenan was shown a report from Dr. Yohe dated November 9, 1992 in the Meadville
                   Medical Center Records and indicated that he was assuming that it was the report he was
                   referring to but did not know if there was more information he and Mr. Truax received from Dr.
                   Yohe that he did not recall in those records.

                           The Defendant's· counsel read from Dr. Yohe's report and in response Mr. Keenan agreed
                   that the only statement with regard to his competence was that he would be able to cooperate
                   with his lawyer.

                           Mr. Keenan indicated that Dr. Yohe was the only psychiatrist relied upon but he could
                   not say that the report contained in the Meadville Medical Center Records was the only
                   documentation that he and Mr. Truax received .from Dr. Yohe.

                          Mr. Keenan testified that he agreed that nothing in the plea colloquy addressed whether
                   the Defendant had undergone an extensive or sophisticated psychiatric assessment.

                          Mr. Keenan testified that even though there were jurors ready to be selected to try the
                   case on the day of the plea he did not recall the decision to enter the plea as. being last minute.




                                                                     17


     �-
                                                 DISCUSSION

              We will first address the issues raised by the Defendant but not specifically at the time of
     the· evidentiary hearing.

             The Defendant has alleged that his attorneys were ineffective in not pursuing the direct or
     interlocutory appeal with the Commonwealth's tardy notice of their intention to seek the death
     penalty.

             In order to prove ineffectiveness the Defendant is required to "plead and prove by a
     preponderance of the evidence..; that the conviction or sentence resulted from ineffective
     assistance of counsel which, in the circumstances of a particular case, so undermined the truth-
     determining process that no reliable adjudication of guilt or innocence could have taken place."
     C011L v. McGill, 574 Pa.574, 832 A.2d 1014, 1020(2003)(quoting Com. v. Pierce, 567 Pa. 186,
     786 A.2d 203, 213 (2001).

             In order to prove that counsel was ineffective, the Defendant must establish that:
                     (1) the underlying legal claim has arguable merit;
                    (2) counsel had no reasonable basis for his action or inaction;
                    (3) the Defendant suffered prejudice as a result.
                    Com. v. Ki11g, 51 A.3d 607(Pa.2012).
)·          Pa.R.Crim.P. 802, which in 1993 was Pa.R.Crim.P. 352, requires the Commonwealth to
     provide the Defendant with notice of aggravating circumstances it intends to submit at the
     sentencing hearing prior to formal arraignment unless the existence of an aggravating
     circumstance comes to the Commonwealth's attention after arraignment.

\
             Here, formal arraignment occurred on March 5, 1993 and the required notice was not
·'   given by the Commonwealth untiJ April 26, 1993.

             That notice advised the Defendant that the Commonwealth contended that the
     aggravating factors included killing while in the perpetration of a felony, specifically Burglary
     and Criminal Homicide; the Defendant knowingly created the grave risk of death to another
     person in addition to the victim in that in killing either victim he placed the other in risk of death;
     that he has been convicted of Murder either before or at the time of the offense at issue and that
     he had been convicted of another federal or state offense committed before at the time of the
     offense at issue for which a sentence of life imprisonment or death was possible in that at the
     conclusion of the trial the Defendant would have been convicted of a state offense murdering one
     victim which was committed either before or at the time of the murder of the second victim.

             Obviously, arguably that notice didn't really provide any information that the Defendant
     didn't already know but in WlY event as our Supreme Court determined in Com. v. Abdul-
     Salaam, 678 A.2d 342, 353(Pa.1996) sanctions for a violation ofRule 352 should be judged on          a
     case by case basis.                                                                                       I
                                                                                                               r
                                                                                                               t
                                                                                                               i
                                                                                                               I
                                                                                                               1
                                                       18                                                      !
 \
/
.,
 '
      .


                 In that case the notice was given over one month after arraignment but still approximately
          three months before the scheduled trial date and the Court found that that gave sufficient time for
          Defendant's counsel to prepare for the sentencing phase.

                 Here the notice was given almost two months after arraignment but the Defendant still           L ..

 I.       had the notice almost five months prior to the scheduled trial.

                  In this case that issue is not of arguable merit and therefore the Defendant's counsel
          could not have been ineffective for failing to pursue an appeal.2 Certainly if almost five months
          had passed since the notice was given, if trial counsel felt that was not adequate they could nave
          asked for a continuance of the case to a later date, but they were apparently ready to proceed to
          trial when the plea agreement was reached.

                  We also note that if in fact the defendant was competent at the time he entered his guilty
          plea, looking at the totality of the circumstances of the record in this case, he was advised both
          by counsel and the Court that he was giving up his right to appeal that issue by entering his
          guilty plea.

                   Next we address the issue raised by the Defendant that he was not apprised of the effects
          of a life sentence or alternatively two consecutive life sentences versus concurrent sentences and
          that he was not apprised of the defenses available to him, including a plea of guilty but mentally
          m and a plea of diminished capacity by virtue of intoxication or mental health.
                  First we note that the Defendant offered no testimony from himself or anyone else with
          regard to the issue of concurrent or consecutive life sentences nor did he offer testimony that he
          was not apprised of his defenses available to him including a plea of guilty but mentally ill and a
          plea of diminished capacity by virtue of intoxication or mental health.

)
                   In the guilty plea colloquy, the Court clearly advised the Defendant that a "life sentence
          meant life unless there was action before the Governor's Pardons Board in the future which
          resulted in a minimum being set so that at the time of sentence the Defendant should assume that
          a life sentence means life. (Transcript of Guilty Plea Colloquy of September 16, 1993, pg. 32,
          line 5 through pg. 33, line 1 ). Further, the Court explained to the Defendant during that colloquy
          the difference between concurrent life sentences and consecutive life sentences and further
          indicated that there was no guarantee based on his plea agreement as to what the Court would do
          in that regard. (Transcript of Guilty Plea Colloquy of September 16, 1993, pg. 55, lines 1-24).

                  With regard to possible defenses, the Court explained in some detail to the Defendant the
          elements of Murder of the Second Degree, Murder of the Third Degree, and Voluntary
          Manslaughter (Transcript of Guilty Plea Colloquy of September 16, 1993, pg. 28, line 5 through
          pg. 30, line 21 ). Additionally, this Court specifically asked the Defendant at the time of his plea
          whether he had discussed possible defenses with his attorneys, mentioning the possible defenses
          of a fourth person being present, self defense or justification, being too intoxicated to have the

          2 Counsel indicates that perhaps the appeal should have been pursued as an interlocutory
          appeal and we do not believe that issue could have been pursued in such a manner but in light
          of our findings, that issue does not need to be discussed further.


                                                           19


 "
 .J
     requisite intent to commit First Degree Murder, other possible defenses. The Defendant
     indicated he was satisfied he had discussed any defenses adequately with his attorneys.
     (Transcript of Guilty Plea Colloquy of September 16, 1993, pg. 46, lines 3�24).

             Further, Gregory Keenan, Esquire, one of the Defendant's attorneys at the time of the
     guilty plea colloquy, specifically noted that all possible defenses had been discussed with the
     Defendant and that based on what was known to the defense and a large part based onthe lack of
     memory of the Defendant at the time of the entry of the plea, none of those defenses were viable.
     The Defendant agreed that in fact he had had such discussions with his attorneys. (Transcript of
     Guilty Plea Colloquy of September 16, 1993, pg. 46, line 25 through pg. 47, line 20).

            We note that it has long been the law of this Commonwealth that a Defendant in a plea
     colloquy is bound by the statements he makes in open court and may not later assert grounds that
     contradict those statements. Com. v. Yeomans, 24 A.2d 1044(Pa.Super 2011 ).

             The Defendant also raises that he and his family were lef to believe that he would be
     eligible for parole at some time and neither counsel nor the Court discussed distinctions between
     the various degrees of Criminal Homicide.

             Again, the Defendant has offered no testimony through himself or anyone else at the time
     of the PCRA hearing to support those contentions.

             Additionally, as we have previously set forth, during the guilty plea colloquy it was
     explained to the Defendant that a life sentence meant life and any possibility of that changing
     would only occur through action by the Governor upon petition of the Governor's Pardons
     Board. Further, as we previously indicated, during the plea colloquy we explained the
     distinction between all three degrees of murder as well as voluntary manslaughter. (Transcript of
     Guilty Plea Colloquy of September 16, 1993, pg. 28, line S through pg. 30, line 21 ).
,·
\

             Further, during the PCRA hearing Mr. Keenan testified that prior to the Defendant
     entering his plea the other types of Criminal Homicide were discussed with the Defendant as
     well as Voluntary Manslaughter and Involuntary Manslaughter. (Transcript of Guilty Plea
     Colloquy of September 16, 1993, pg. 37, lines 1'4-22).

             We finally address the issues that are really at the heart of the Defendant's contentions,
     Specifically that his attorneys rendered ineffective assistance of counsel when they permitted
     him to enter the guilty pleas he did because he was not competent and that he should be
     permitted to withdraw his guilty pleas because he was not competent when he entered them and
     therefore they were not made knowingly, voluntarily ·and understandably.

'
.)




                                                     20


;
                 Our analysis as to whether the Defendant was competent at the time he entered his plea
          begins with the presumption that he was. See Com. v. Dupont, 545 Pa. 564. 681 A.2d 1328,
           1329-30(1996).3

    I .          The burden is on the Defendant to prove, by a preponderance of the evidence, that he was
          incompetent to stand trial. . In order to do so he must establish that he was either unable to
          understand the nature of the proceedings against him or to participate in his own defense. Com.
          v. Hughes, 521 Pa. 423, 555 A.2d 1264, 1270 (1989)                                                      ;:



                  Here it appears to be conceded by the defense that the Defendant understood the charges
          he was facing and that he was going to go to trial on those charges prior to entering his plea to
          two counts of the First Degree. What is contended however is that because of the frontal lobe
          injury he received from the self inflicted gunshot wound, he was unable to participate in his own
          defense and was therefore not competent when he entered the plea.

                 That position is supported by the testimony of the Defendant's expert, Dr. Lawson
          Bernstein.

                  We note that Dr. Bernstein did not examine the Defendant near the time of his plea but
          his only examination occurred about four years after the Defendant entered that plea.

                 While there was much testimony offered by Dr. Bernstein, in essence his opinion was
          simply that because of the nature pf the injury to the head sustained by the Defendant from the
          gunshot wound to his head on September 28, I 992 he was not competent to enter his plea on
          September 16, 1993 because there had not been sufficient time for his brain to organically heal.
          Dr. Bernstein indicated that based on his understanding, as an expert, it would take two years
          horn the time of the injury for it to organically heal."

                 More specifically, Dr. Bernstein testified that as a result of the self-inflicted gunshot
          wound, the Defendant suffered damage to the frontal lobes of his brain such that he ended up
          with eacephalomalacia which essentially destroyed the frontal lobes of the brain.

                 He further opined that the frontal lobes of the human brain affect one's ability to weigh,
          reason and consider different courses of actions and the risks and benefits of those, actions so that
)
          3 We conducted a retrospective hearing on competency in thls matter without objection by the
          Defendant and therefore any claim that a retrospective hearing should not have been held was
          waived.
          4 We note that while Dr. Bernstein emphasized the full two year period for the Defendant to

          heal, he did on one occasion make reference to an individual not being able to make
)
          complicated decisions at least for the first year, (See Transcript of Dr. Lawson Bernstein's
          Testimony of June S, 2013, pg. 34, lines 10-12)


                                                           21


)
)   '




        ,

            the Defendant did not have the cognitive wherewithal to decide whether or not to proceed to
            trial.

                   He also opined that the Defendant, because of the frontal lobe damage, suffered from
            abulia which affected his ability to interact with the environment and reduced his ability to
            advance his own interests.

                    Dr. Bernstein also indicated because the Defendant had very limited memory for the
            events leading up to the homicides and thereafter, he suffered from anterograde and retrograde
            amnesia as part of the traumatic brain injury he sustained.

                    The doctor also indicated that he believed that the Defendant suffered from alcohol abuse
            and likely dependence which was of course in remission in 1997 because he was incarcerated.

                   Dr. Bernstein further concluded that in 1997 the Defendant suffered from moderate to
            severe organic cognitive and arnnestic disorder as well as an organic personality disorder which
            was chronic and untreated.

                     The doctor testified when he saw the Defendant in 1997, the Defendant was not on
            psychiatric medication and from that he could infer that the Defendant was not receiving any
            psychiatric care at the Crescent State Correctional Institution.

                   Dr. Bernstein noted that on November 9, 1992, the Defendant had a psychiatric
            evaluation by Dr. Frank Yohe at the Meadville Medical Center but it was Dr. Bernstein's opinion
            Dr. Yohe did not adequately evaluate the Defendant's cognitive· capacity.

                    pr, Bernstein testified that when the Defendant was responding to questions during the
            guilty plea colloquy on September 16, 1993, he did not have the ability to make the types of
            decisions that were required in the colloquy and that he did not have the capacity to consult with
            his lawyers as to how to proceed. Further, Dr. Bernstein felt that the Defendant could not weigh
            the risks and benefits of different strategies.

                   On cross-examination Dr. Bernstein did not recall interviewing either of the attorneys
            who represented the Defendant at the time he entered his plea, nor did he remember interviewing
            anyone who saw the Defendant on the day he entered his plea. Further, he indicated that he may
            have reviewed the presentence report prepared by the Adult Probation Department in October of
            1993 but he did not interview Robert Stein, the Adult Probation Officer who prepared it.

                  He further indicated that Dr. Frank Yohe's report as a result of his examination of the
            Defendant on November 9, 1992, indicated that the Defendant realized that he had been



                                                            22
    ,,
     I




    !,
         arraigned on Novembet 6, 1992 and that he was charged with two counts of homicide and one
         count of burglary.

                 He further agreed that Dr. Yohe's report indicated the. Defendant stated he had �o
         recollection of the incident.

                Dr. Bernstein also testified that Dr. Yohe's report indicated the Defendant denied any
         psychotic symptoms and that he was not depressed.

                 The doctor also indicated that Dr. Yohe's report stated that the Defendant had good eye
         contact, was cooperative and knew that he was being interviewed on a Monday although he
         thought it was November 8, 1992 rather than November 9� 1992.

                 Dr. Bernstein agreed that Dr. Yo�e'sreport indicated that the Defendant was oriented as
         to person and place and could remember three out of three objects after three minutes.

                The testimony of Dr. Bernstein further indicated that Dr. Yohe' s report indicated that
         when given the Serials Seven his answers were 93, 86, 58, 51 which showed that there was some
         gap in what would have been a totally correct response.

                 Dr. Bernstein noted that Dr. Yohe's report indicated that "other cognitive functioning is
         not tested at the present time."

                 Dr. Bernstein further indicated that since his file had been destroyed because of the
         sixteen years between the time he interviewed the Defendant and the hearing in this matter, he
         believed he had done a series of tests to determine the Defendant's cognitive functioning in 1997
         but he could not remember the Defendant's answers.

                  Dr. Bernstein went on to indicate that Dr. Yohe's report indicated that the Defendant was
         able to cooperate with his attorney even though he did not remember one being present with him
         at the arraigrunent which Dr. Yohe believed had occurred and further Dr. Yohe had indicated
         there was no evidence of psychosis.

                Dr. Bernstein further indicated in cross-examination that he did not recall whether he had
         reviewed the Defendant's plea colloquy of September 16, 1993 and he indicated his report did
         not mention that plea colloquy.

                Further on cross-examination Dr. Bernstein reiterated that it was a physiological fact that
         spontaneous recovery from the type of injury the Defendant received takes two years.

j




                                                         23
               'i




                    '!   , ,   I




                                           Dr. Bernstein further indicated on cross-examination that he did believe the Defendant
                                   understood he was charged with murder at the time he entered the plea and that he had not
                                   interviewed any of the Defendant's relatives who had seen him on the day of the plea or near the
                                   time.of the plea.

                                          On redirect examination the doctor indicated that he did not order any
                                   neuropsychological testing when he interviewed the Defendant in J 997 because it would not
                                   have reflected the Defendant's at the time he entered the guilty plea on September 16, 1993.

           \                               Dr. Bernstein indicated that the Defendant's-competence could not be judged by the
                                   people observing a; or near the time he entered the guilty plea because he was abulic, He further
                                   indicated that the Defendant's responses (apparently making reference to the guilty plea
                                   colloquy) were monosyllabic and that's pretty typical of someone who is abulic,

                                         Dr. Bernstein also noted on redirect examination Dr. Yohe had indicated that the
                                   Defendant needed to be watched for impulsivity and suicidality.

                                          In conclusion in his redirect testimony, Dr. Bernstein indicated that based 'on what Dr.
                                   Yohe had heard from the Defendant there were more serious problems to be assessed and that
                                   Dr. Yohe's assessment did not change his opinion that the Defendant was not competent at the
                                   time he entered his guilty plea in September of I 993.

                                           Robert Stein, the Adult Probation Officer, who interviewed the Defendant on one
                                   occasion at the Crawford County Correctional Facility in preparation for his presentence report,
                                   indicated that he had also reviewed materials from the Clerk of Court's office and District
                                   Attorney's file in preparing that report.

                                           Mr. Stein indicated that he took notes of his conversation with the Defendant concerning
                                   his background, family, work history, assets and debts and general biographical Information and
      \
                                   that he felt the Defendant understood his questions and responded to him verbally and
      '.
                                   appropriately.

                                          Mr. Stein indicated that the Defendant had told him in some detail regarding matters
                                   leading up to the murders, even though the Defendant could not recall the actual murders.

                                          It was clear from Mr. Stein's testimony that the Defendant gave him much detailed
                                   information with regard to the Defendant's background, even to the point of remembering his
                                   most recent job and exactly how much he had been earning an hour.




                                                                                  24

.",
              Based on Mr. Stein's testimony those answers would not have been limited to one
      syllable or even one word or a few words.                                            .

              On cross-examination Mr. Stein indicated he did not recall a specific date of the
      interview but the report was dated October 22, 1993 and on re-direct he indicated therefore his
      interview would have occurred before that date ..

              Also on cross-examination Mr. Stein indicated that while he had reviewed the police
      reports, the affidavit of probable cause and witness statements prior to speaking with Mr.
      Peterson, what he wrote in the presentence report as being attributable to the Defendant was
      solely based on what the Defendant told him. He did not recall whether in response to what the
      Defendant indicated to him he had proposed any supplemental questions to the Defendant.

             Gregory Keenan, while incorrectly recalling that the plea agreement reached called for
      two consecutive life sentences did indicate that when he met with the Defendant's other attorney
      David Truax, Esquire and the Defendant on numerous occasions he was able to converse with
      the Defendant.           ·                 .

             He clearly testified that all aspects of the case leading up to the plea were discussed with
      the Defendant and based on the Defendant's conversations with him, he had no reason to believe
      the Defendant was incompetent,

         .    He further testified that while he had received all medical reports that indicated the extent
      of the Defendant's brain'injury and that the Defendant did not remember the events leading up to
      nor at the time of the murders, he was satisfied that the Defendant was competent based on not
      only his responses to questions from his attorneys but also, based on the evaluation done by Dr.
      Yphe.

            Mr. Keenan indicated that he believed that Mr. Truax had received a report from Dr.
      Yohe and that he and Mr. Truax were comfortable in relying on Dr. Yohe' s opinion that the
      Defendant was competent and they did not seek any further psychiatric opinion.

             The witness indicated that he could not say that the report from Dr. Yohe that was
      contained in the Meadville Medical Center records was the only documentation he and Mr.
      Truax received from Dr. Yohe.

             The plea colloquy of September 16, 1993 clearly shows that the Court covered the six
      required questions set forth currently in Pa.R.Crim.P.590 which were the same required
      questions in 1993. The seventh question with regard to a jury deciding the degree of guilt if the
      Defendant pied guilty to murder generally was not applicable.
,.\

                                                       25


)
    ).




         �·   I '   4   i



    \


                                  With regard to the ineffective assistance of counsel claims that the Defendant was not
                            competent to enter a plea, we initially find that the claim is of arguable merit.

                                    Certainly if the Defendant was not competent he could not enter a knowing, voluntary
                            and intelligent plea and he presented evidence to support that claim.

                                    However, we do not find that he has met his burden that counsel had no reasonable basis
                            for action or inaction.

                                    Without getting to the issue as to whether we believe the Defendant was competent at the
                            time he entered his plea, which we will address later, clearly, his attorneys had a report from a
                            psychiatrist indicating that he was competent and the Defendant displayed no behavior that
                            would have led them to believe he was not competent in their numerous meetings with him. We
                            therefore cannot find that counsel was ineffective.

                                    Having said that, Defendant may still be permitted to withdraw his guilty plea if he was
                            in fact not competent at the time he entered it.

                                    In order to withdraw a guilty plea after sentencing, a Defendant must demonstrate
                            prejudice on the order of manifest in justice before the withdrawal is justified. Com. v.
                            Muhammad, 794 A.2d 378, 3i3 (Pa.Super 2002). "A plea rises to the level of manifest in
                            justice when it was entered into involuntarily, unknowingly, or unintelligently." Id

                                    Here based on the totality of the circumstances, we cannot conclude that the Defendant
                            has satisfied that standard and should be permitted to withdraw his guilty pleas.

                                  Certainly his expert witness opines that he was not competent to enter his guilty plea on
                            September 16, 199J based on his review of the records and his interview with the Defendant in
                            1997.

                                    That expert maintains that because of the physiological injury, healing simply could pot
                            take place to allow the Defendant to make such important decisions for two years from when the
                            injury occurred on September 28, 1992.

                                    We believe based on al I the testimony and the guilty plea colloquy of September 16,
                            1993, that opinion from the Defendant's expert simply i's not correct.

                                   The Defendant, while having no specific recollection of the incident and the specific time
                            leading up to it, did have extensive discussions with an adult probation officer and his attorneys.
)




                                                                            26

"
)
     \
     '
                 The discussions the Defendant had with the adult probation officer Robert Stein, clearly
         show that he was not giving short answers to questions presented to him without thought but
         instead was giving great detail in his answers to the probation �fficer.

                Further, his attorney from that time period testified he was clearly able to converse with
         the Defendant and the Defendant appeared to understand what he was saying at all times.

                 It is clear that the Defendant had no specific recollection of committing the murders, but
         at the ti�e of the entry of hls pleas he heard an extensive recitation of the evidence which
         apparently had already been discussed with him in the past with his attorneys that certainly
         created a factual basis for the Defendant to enter his pleas.

               The Defendant's answers at the time of the plea colloquy indicated no confusion
         whatsoever.

                 Further, we note that the only psychiatric information closest to the time Defendant
         entered the guilty pleas was that of Qr. Yohe which indicated that he was in fact competent to
         participate in his defense and therefore to enter-into the guilty pleas.

                We cannot find that the Defendant has met his burden of showing manifest injustice to
         allow him to withdraw his guilty pleas.!

                ACCORDINGLY, we will enter the following Order:




,,




         s We note that there was no evidence presented that the Defendant was under the influence of
         any medication, let alone medication that would have affected his ability to understand
)        proceedings, when he entered his guilty pleas,


                                                         27
                                                 ORDER

    Anthony J. Vardaro, P.J.                                                    March 3, 2014

                                                                                                      ·-.
                                                                                                      '--·



            AND NOW, March 3, 2014, for. the reasons set forth in the attached Memorandum and
    after an evidentiary hearing, the Defendant's Request for PCRA Relief is DENIED.

            The Defendant is advised he has a right to appeal this decision to the Superior Court
    within thirty days from this date.

            In addition to providing copies of the attached Memorandum and this Order to counsel of
    record, the Clerk of Courts of Crawford County shall send a copy to the Defendant by certified
    mail, return receipt requested and the State Correctional Institution at which he is currently
    housed,




                                                                 BY THE COURT,




                                                                P.J.

    nch




J




                                                   28
