J. S23014/14

NON-PRECEDENTIAL DECISION                SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 :     IN THE SUPERIOR COURT OF
                                             :           PENNSYLVANIA
                     v.                      :
                                             :
LARRY WILSON,                                :          No. 782 EDA 2013
                                             :
                           Appellant         :


                 Appeal from the PCRA Order, January 31, 2013,
                 in the Court of Common Pleas of Bucks County
                Criminal Division at No. CP-09-CR-0002838-2003


BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND WECHT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED AUGUST 11, 2014

        Larry Wilson appeals from the order of January 31, 2013, denying his

PCRA1 petition. We affirm.


              roommate in the neck with a knife during a visit to

              sister testified appellant was in a trance-like state for
              the majority of the visit and had continuously stared
              at the victim in an angry fashion. Appellant stated to
              police that he killed the victim because the demons

              blood tested positive for small traces of PCP and
              marijuana.

Commonwealth          v.    Wilson,    No.       1783   EDA   2004,   unpublished

memorandum at 1-2 (Pa.Super. filed September 22, 2005). Following a jury

trial, appellant was found guilty of first-degree murder, criminal trespass,


1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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and possession of an instrument of crime. On December 22, 2003, appellant

was sentenced to life imprisonment for first-degree murder and concurrent

sentences for criminal trespass and PIC.     This court affirmed judgment of

sentence on September 22, 2005; and on May 1, 2007, our supreme court

denied allowance of appeal.

      Appellant filed a timely pro se PCRA petition on April 11, 2008.



An evidentiary hearing was held on October 3, 2012, at which both appellant

and trial counsel testified. On January 31, 2013, the PCRA court denied the

petition.   On February 27, 2013, appellant filed a timely notice of appeal.

Appellant has complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.; and the

PCRA court has filed an opinion, relying on its January 31, 2013

memorandum denying PCRA relief.



             I.     Whether the trial court erred by denying

                    counsel failed to convey a plea bargain offered
                    by the Commonwealth prior to trial[?]

             II.    Whether the trial court erred by denying

                    counsel failed to present evidence of Dandy
                    Walker Syndrome[?]

             III.   Whether the trial court erred by denying

                    counsel failed to call character witnesses on




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           IV.   Whether the trial court erred by denying

                 counsel failed to call the Appellant as a witness
                 at his trial[?]

           V.    Whether the trial court erred by denying

                 [trial counsel] failed to permit the Appellant to
                 participate in his defense at trail [sic][?]

           VI.   Whether the trial court erred by denying

                 [trial counsel] failed to raise an objection and
                 failed to request that the jury to [sic] consider
                 Voluntary Intoxication as a defense[?]



     Initially, we recite our standard of review:


           denying a petition under the PCRA is whether the
           determination of the PCRA court is supported by the
           evidence of record and is free of legal error.
           Commonwealth v. Halley, 582 Pa. 164, 870 A.2d

           not be disturbed unless there is no support for the
           findings in the certified record. Commonwealth v.
           Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007).


           ineffectiveness, Appellant must demonstrate (1) that
           the underlying claim is of arguable merit; (2) that

           reasonable ba

                           Commonwealth v. Wallace, 555
           Pa. 397, 407, 724 A.2d 916, 921 (1999), citing
           Commonwealth v. Howard, 538 Pa. 86, 93, 645
           A.2d 1300, 1304 (1994) (other citation omitted). In


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            order to meet the prejudice prong of the
            ineffectiveness standard, a defendant must show


            proceeding  would    have   been    diffe
            Commonwealth v. Kimball, 555 Pa. 299, 308, 724
            A.2d 326, 331 (1999), quoting Strickland v.
            Washington, 466 U.S. 668, 694, 104 S.Ct. 2052,


            co                          Id. at 309, 724 A.2d at
            331, quoting Strickland, 466 U.S. at 694, 104 S.Ct.
            2052.

Commonwealth v. Jones, 811 A.2d 1057, 1060 (Pa.Super. 2002), appeal

denied

place upon Appellant the burden of proving otherwise. Counsel cannot be



Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)

(citations omitted).

      In his first issue on appeal, appellant claims that trial counsel,

Ann Faust, Esq., was ineffective for failing to communicate a plea offer of

third-degree murder.

            Generally, counsel has a duty to communicate plea
            bargains to his client, as well as to explain the
            advantages and disadvantages of the offer. Failure
            to do so may be considered ineffectiveness of
            counsel if the defendant is sentenced to a longer
            prison term than the term he would have accepted
            under the plea bargain. Where the PCRA court's
            determination of credibility is supported by the
            record, we will not disturb it on appeal.




                                   -4-
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Commonwealth v. Marinez, 777 A.2d 1121, 1124 (Pa.Super. 2001),

appeal denied, 788 A.2d 374 (Pa. 2001) (citations omitted).

     Appellant relies on a letter from Kenneth J. Weiss, M.D., who was a

defense expert at trial. The letter is dated August 5, 2004, while the case

was on appeal, and references a plea offer:

           My understanding is that you rejected a plea offer
           and insisted on having a trial. Your lawyers told you
           that, by using a defense of voluntary intoxication[2],

2
           Evidence of voluntary intoxication or drugged
           condition may be used to reduce murder from a
           higher degree to a lower degree. 18 Pa.C.S. § 308.
           The theory of this rule of law is that a person
           overwhelmed by the effects of alcohol or drugs
           cannot form a specific intent to kill. As this Court
           stated in Commonwealth v. England, 474 Pa. 1,
           375 A.2d 1292 (1977):

                 Where the question of intoxication is
                 introduced into a murder case its only
                 effect could be to negate the specific
                 intent to kill which is required for a
                 finding of murder of the first degree
                 . . . . If intoxication does render an
                 accused incapable of forming the
                 necessary intent the result is to reduce
                 the crime to a lesser degree of murder.
                 In no event does the reduction change
                 the character of the crime from murder
                 to manslaughter.

           Id. at 19-20, 375 A.2d at 1301. Further, in order for
           intoxication to reduce murder from a higher to a
           lower degree, it must be proven that the actor was
           overwhelmed to the point of losing his faculties and
           sensibilities. Commonwealth v. Reiff, 489 Pa. 12,
           15, 413 A.2d 672, 674 (1980).

Commonwealth v. Breakiron, 571 A.2d 1035, 1041 (Pa. 1990).


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              the best you could do was to have first-degree
              murder reduced to third-degree. This is the same
              effect as getting a plea bargain. Why you chose to
              have a trial is mysterious to us, but it is a fact that
              your lawyers advised against it.           Intoxication
              defenses are unpopular, and I am sorry to say that
              you gambled and lost.




unequivocally that there was never any such plea offer.                 (Notes of

testimony, 10/3/12 at 53.) Attorney Faust testified that appellant was never

offered a plea agreement and that appellant was adamant that he wanted a

jury trial.   (Id. at 54.)   Attorney Faust testified that if they were offered

third-degree murder, they would have done everything in their power to get

appellant to take it, particularly because juries generally do not like

intoxication defenses. (Id.) Attorney Faust had no idea why Dr. Weiss was

under the misapprehension that a plea down to third-degree murder was

offered. (Id.) Attorney Faust testified that the prosecuting attorney stated

during a pre-trial conference that he would not oppose a bench trial;

however, there was no plea offer and the trial judge never indicated he

would find appellant guilty of only third-degree murder. (Id. at 53-54.)

      The PCRA court found as a fact that no plea bargain was ever offered



supported by the rec




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the Commonwealth offered appellant a plea to third-degree murder, lacks

merit. Attorney Faust cannot be held ineffective for failing to communicate a

plea offer that never existed. This claim fails.

        In his second issue on appeal, appellant argues that trial counsel was

ineffective for failing to present evidence of Dandy Walker Syndrome.3

According to appellant, trial counsel could have used this evidence to

establish a defense of diminished capacity.

              Diminished capacity is a limited defense, which does
              not exculpate the defendant from criminal liability
              entirely, but instead negates the element of specific
              intent. Commonwealth v. Gibson, 597 Pa. 402,
              951 A.2d 1110, 1131-32 (2008) (citations omitted).
              Thus, a defendant asserting a diminished capacity
              defense admits responsibility for the underlying
              action, but contests the degree of culpability based
              upon his inability to formulate the requisite mental
              state. Id. at 1132.



3
    According to the National Institutes of Health,

              Dandy-Walker Syndrome is a congenital brain
              malformation involving the cerebellum (an area at
              the back of the brain that controls movement) and
              the fluid-filled spaces around it. The key features of
              this syndrome are an enlargement of the fourth
              ventricle (a small channel that allows fluid to flow
              freely between the upper and lower areas of the
              brain and spinal cord), a partial or complete absence
              of the area of the brain between the two cerebellar
              hemispheres (cerebellar vermis), and cyst formation
              near the lowest part of the skull. An increase in the
              size of the fluid spaces surrounding the brain as well
              as an increase in pressure may also be present.

http://www.ninds.nih.gov/disorders/dandywalker/dandywalker.htm


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

      According to appellant, he suffers from Dandy Walker Syndrome which

causes migraines.     (Notes of testimony, 10/3/12 at 12.)      This was the

reason he was using PCP. (Id.) Appellant also testified that Dandy Walker

Syndrome can cause an individual to be violent.       (Id. at 15.)   Appellant

theorizes that the cyst on his brain combined with PCP caused him to kill the

victim. (Id.)

      Ms. Faust testified that appellant never told her or co-counsel,

Lisa Douple, Esq., that he suffered from Dandy Walker Syndrome. (Id. at

55.) Appellant only stated that he had headaches. (Id.) In fact, appellant

admitted that he was not diagnosed with Dandy Walker Syndrome until after

trial. (Id. at 13, 16.)



                            Id. at 55.)    However, the report goes on to

                                                              Id.)   Ms. Faust

included this report in the medical records which she turned over to

Dr. Weiss. (Id.) Dr. Weiss, a medical doctor, evaluated appellant and never

indicated any type of Dandy Walker Syndrome. (Id. at 57.)

      Clearly, this issue lacks arguable merit. Appellant admits that he was

not diagnosed with Dandy Walker Syndrome until after trial, and the 1999

MRI report stated that it was likely of no significance. (Id. at 55.) Appellant

never told his attorneys that he suffered from Dandy Walker Syndrome.



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They simply had no reason to pursue a diminished capacity defense based



self-serving testimony, there is no evidence that Dandy Walker Syndrome

causes an individual to become violent.

     In his third issue on appeal, appellant argues that trial counsel was

ineffective for failing to call certain character witnesses on his behalf;

namely, Brad Sorkin, Richard Sorkin, and Barbara Smith.        According to

appellant, these witnesses would have testified to his good character and

peaceful and hard-

           To establish ineffectiveness for failure to call a
           witness, Appellant must establish that:        (1) the
           witness existed; (2) the witness was available;
           (3) counsel was informed of the existence of the
           witness or counsel should otherwise have known of
           him; (4) the witness was prepared to cooperate and
           testify for Appellant at trial; and (5) the absence of
           the testimony prejudiced Appellant so as to deny him
           a fair trial. A defendant must establish prejudice by
           demonstrating that he was denied a fair trial because
           of the absence of the testimony of the proposed
           witness.

                             , 849 A.2d 243, 249 (Pa.Super. 2004), appeal

denied, 860 A.2d 123 (Pa. 2004) (citations omitted).

     Ms. Faust testified that she investigated all three of these witnesses,

and none of them would have given testimony particularly beneficial to



damaging. Smith told Ms. Faust that she has known appellant for ten years

and he has worked for her on and off at her bar.       (Notes of testimony,


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10/3/12 at 58.) Appellant used to be a responsible employee but recently,

just before this incident, appellant came into the bar and was upset and

crying. (Id.) Apparently, he had broken up with his girlfriend. (Id.) Smith



(Id.)

        Richard Sorkin told Ms. Faust that she should speak with his son, Brad.

(Id.

character.    (Id.)    When she talked to Brad, Brad told her that, recently,

appellant was constantly getting into fights with the customers. (Id. at 61.)

Brad suspected appellant of using drugs and told him that he had to be clean

to work there. (Id.) Appellant never came back. (Id. at 61-62.)

        Obviously, trial counsel had a good reason for not putting these

witnesses on the stand.        It is doubtful they would have testified that

appellant was a person of good character and peaceable, as appellant

suggests. Furthermore, Ms. Faust explained that she had litigated a pre-trial



involving a police officer. (Id. at 51.) Similar to the instant case, appellant

stabbed his girlfriend and a police officer while under the influence of PCP.

(Id.

out.    (Id. at 52.)   However, Ms. Faust was concerned that by presenting

                                                              -abiding nature,




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she would be opening the door to cross-

convictions for acts of violence. (Id. at 59-60.)

                                         ounded.    Admission of these prior



Therefore, she had a reasonable strategic basis for deciding not to call

character witnesses. Furthermore, the underlying claim lacks merit because

each of these witnesses, while stating that appellant used to be a reliable

and trustworthy employee, told Ms. Faust that recently appellant was acting

strangely and in violent fashion.   It is doubtful that their testimony would

                        case.

      Next, appellant argues that trial counsel was ineffective for failing to

call him as a witness. According to appellant, trial counsel never gave him



                                                      :

                  is ultimately to be made by the accused
                  after full consultation with counsel. In
                  order to support a claim that counsel was


                  must demonstrate either that (1) counsel
                  interfered
                  testify, or (2) counsel gave specific
                  advice so unreasonable as to vitiate a
                  knowing and intelligent decision by the
                  client not to testify in his own behalf.

            Commonwealth v. Preston, 418 Pa.Super. 125,
            613 A.2d 603, 605 (1992), appeal denied, 533 Pa.
            658,   625     A.2d   1192    (1993)    (quoting
            Commonwealth v. Bazabe, 404 Pa.Super. 408,


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            590 A.2d 1298, 1301 (1991), appeal denied, 528

            error absent a showing of specific incidents of
            cou
            Preston, supra at 605.

Commonwealth v. Thomas, 783 A.2d 328, 334-335 (Pa.Super. 2001).

      Ms. Faust testified that appellant never asked to testify at trial. (Notes

of testimony, 10/3/12 at 64.)       Appellant did testify at the suppression

hearing so he was well aware of his rights. (Id. at 63.) Appellant could not

remember the incident so it is unclear what he would have testified to. (Id.

at 64.)   Furthermore, as stated above, appellant had prior convictions for

assaulting his girlfriend and a police officer while under the influence of PCP.

Ms. Faust was concerned that if appellant took the stand, these convictions

could come in as impeachment evidence. (Id.) In fact, appellant testified at

the PCRA hearing that after trial counsel advised him that by testifying, he




      Counsel had a reasonable basis for advising appellant not to take the

stand.    In addition, appellant never requested to testify.       There is no

evidence that, as appellant suggests, trial counsel interfered with his right to



elected not to testify after consulting with trial counsel is supported by the

record. (PCRA court opinion, 1/31/13 at 9.) This claim fails.




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      In his fifth issue on appeal, appellant claims that trial counsel did not

allow him to participate in his defense. Appellant states that he disagreed

with voluntary intoxication as a defense, and wanted to present a defense of




                                                                             ny,

10/3/12 at 49.)     Either she or Ms. Douple met with appellant 31 times.

(Id.) Appellant was consulted on all decisions of consequence in the trial,

and provided with a copy of all the discovery. (Id. at 65.) She met with

appellant numerous times to discuss the case and trial strategy. (Id.)

      As discussed above, there was no evidence that appellant suffered

from Dandy Walker Syndrome at time of trial and no basis for a diminished

capacity defense.   There were numerous eyewitnesses to the murder, and

identity was not an issue. Counsel went with the only viable defense they




participate in the preparation of his defense is wholly without merit.

      Finally, appellant argues that trial counsel was ineffective for failing to



            Our standard of review with respect to jury
            instructions is well settled.  When reviewing a
            challenge to part of a jury instruction, we must
            review the jury charge as a whole to determine if it
            is fair and complete.     See Commonwealth v.
            Hawkins, 549 Pa. 352, 390, 701 A.2d 492, 511


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            (1997). A trial court has wide discretion in phrasing

            as long as the law is clearly, adequately, and
            accurately    presented    to  the    jury   for  its
                             Id., at 391, 701 A.2d at 511. The
            trial court commits an abuse of discretion only when
            there is an inaccurate statement of the law. See id.

Commonwealth v. Einhorn, 911 A.2d 960, 975 (Pa.Super. 2006), appeal

denied, 920 A.2d 831 (Pa. 2007).

     During their deliberations, the jury came back with two questions

regarding   voluntary   intoxication;     i.e.




            the only way that it would be proper for me to
            address the first question posed would be to restate
            the definitions of first and third degree murder,
            reminding the jury of the obligations of the
            Commonwealth to prove the elements thereof
            beyond a reasonable doubt, and then immediately in
            conjunction therewith, offer the instruction on
            voluntary intoxication as a defense to first degree
            murder, so that the jury may see the interplay of
            that   defense    and    the   obligations  of   the
            Commonwealth to prove certain things beyond a
            reasonable doubt.

Notes of testimony, 10/30/03 at 123-124.         Both the Commonwealth and

defense counsel agreed with the trial court. (Id. at 124.) The trial court

then proceeded to review the definition of first-degree murder, the defense

of voluntary intoxication, and the elements of third-degree murder. (Id. at

125-132.)




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         Appellant complains that the trial court should have instructed the jury

that they must



me to advance anything that even sounded like an opinion concerning the

facts.    And you would appropriately reject any such intrusion upon your



                                                                  ntoxication in

reaching their verdict, which sounds like a judicial endorsement of




(Notes of testimony, 10/3/12 at 67-

re-read the relevant instructions was not an unreasonable response to the

                                                       ve for failing to object

thereto.

         Furthermore, we observe that in re-instructing the jury, the trial court



                                  -                                         nt is

permitted to claim as a defense that he was so overpowered by intoxicants

or drugs that the defendant had lost control of his faculties, and was

incapable of forming the specific intent to kill, which as we have just

reviewed is required for first de



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10/30/03 at 128-129.)        The trial court also told the jury that the

Commonwealth has the burden of disproving the defense of voluntary

intoxication, which may reduce murder from first degree to third degree.

(Id. at 129-

and an accurate statement of the law, and trial counsel was not ineffective

for failing to object. This claim is without arguable merit.

      For these reasons, we determine that the PCRA court did not err in



      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/11/2014




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