J-S50037-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 EDWARD MCDONALD,                           :
                                            :
                   Appellant.               :   No. 338 WDA 2018


              Appeal from the PCRA Order, January 31, 2018,
            in the Court of Common Pleas of Allegheny County,
           Criminal Division at No(s): CP-02-CR-0013138-2015.


BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                     FILED FEBRUARY 26, 2019

      Edward McDonald appeals from the order denying his petition for relief

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.

For the reasons that follow, we affirm.

      In the early morning of January 23, 2015, McDonald started a fire in his

own apartment at 237 East 8th Avenue in Homestead, Allegheny County.

Ultimately, the fire impacted five buildings and ten victims were displaced.

Two tenants suffered injuries requiring hospitalization and estimated damages

at the time exceeded two million dollars.

      Through an investigation, Detective Jason Costanzo and the fire marshal

determined that the origin of the fire began on the second floor of unit 237 –

McDonald’s apartment – in the living room. Eliminating accidental or natural

causes, the investigation revealed the fire was incendiary. Detective Costanzo
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interviewed Renee Gudukas, one of the two of the physically injured victims.

Gudukas stated that 15-30 minutes prior to the fire, she heard McDonald

repeatedly pacing the common hallway up and down the stairs.            Another

occupant whom was interviewed, Dominic Anicola, stated McDonald had

recently told Anicola that he was going to kill himself because the voices in his

head were so loud. McDonald also asked Anicola for earplugs.

      The agents interviewed McDonald where he revealed that he suffers

from schizophrenia and other unspecified mental conditions. McDonald stated

“he has not had any treatment or medication in a while and that he constantly

hears voices and sounds and is tormented by visions and what the voices say

to him.” The agents observed these symptoms manifest themselves several

times during McDonald’s interview.

      McDonald admitted that he emptied two containers of Zippo lighter fluid

on his couch.   He alleged he found the fluid in a bag in an alley near his

apartment.    McDonald stated “that the reason he started the fire was in

response to the voices in his head and a way of dealing with stress and

torment.” After he lit the couch on fire, McDonald stated that he repeatedly

walked around the hallway and common area until he eventually left the

building and ran. See N.T., 6/21/16, at 10-16.

      The Commonwealth charged McDonald with fifteen crimes, including

various arson offenses and one count of causing or risking catastrophe. He

was represented the Allegheny County Public Defender’s Office. McDonald




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entered a nolo contendere plea to all charges on June 21, 2016. The trial

court postponed sentencing pending the preparation of a presentence report.

      On September 15, 2016, the trial court imposed an aggregate term of

four to eight years of incarceration followed by five years of probation. The

court further directed McDonald to pay $115,000 in restitution, and to have a

mental health evaluation and follow any treatment.               McDonald filed a

counseled post-sentence motion, which the trial court denied.

      Thereafter, McDonald filed a pro se petition for reconsideration of

sentence, which the trial court treated as a PCRA.            The court appointed

counsel, and PCRA counsel filed an amended PCRA petition on November 27,

2017. On January 18, 2018, the Commonwealth filed its answer to McDonald’s

petition. That same day, the PCRA court issued Pa.R.Crim.P. 907 notice of its

intention to dismiss the petition without a hearing. McDonald filed a response.

By order dated January 31, 2018, the PCRA court denied McDonald’s amended

petition.    This timely appeal follows.     Both McDonald and the PCRA court

complied with Pa.R.A.P. 1925.

      McDonald raises the following issue for our review:

            1. Did the PCRA court err in denying McDonald’s PCRA
               petition without an evidentiary hearing since trial counsel
               was ineffective for failing to raise the issue of McDonald’s
               mental capacity to be guilty given the necessity for a year
               of in-patient treatment to provide him with the mental
               capacity to plea?

McDonald’s Brief at 5.




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      Our standard of review from the denial of post-conviction relief "is

limited to examining whether the court's determination is supported by the

evidence of record and whether it is free of legal error." Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011)(citation omitted).               A

petitioner's right to an evidentiary hearing on a PCRA claim is not absolute.

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).

      It is within the PCRA court's discretion to decline to hold a hearing if

there is no genuine issue of material fact.     Id.   “A reviewing court must

examine the issues raised in the PCRA petition in light of the record in order

to determine whether the PCRA court erred in concluding that there were no

genuine issues of material fact and in denying relief without an evidentiary

hearing.” Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super.

2008)(citation omitted).

      McDonald’s claim alleges the ineffective assistance of counsel in relation

to the entry of his guilty plea. As this Court has summarized:

            A criminal defendant has the right to effective counsel
         during a plea process as well as during trial. A defendant is
         permitted to withdraw his guilty plea under the PCRA if
         ineffective assistance caused the defendant to enter an
         involuntary plea[.]

            We conduct our review of such a claim in accordance with
         the three-pronged ineffectiveness test under section
         9543(a)(2)(ii) of the PCRA. The voluntariness of the plea
         depends on whether counsel’s advice was within the range
         of competence demanded of attorneys in criminal cases.




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Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super. 2017)

(citations omitted).

       To obtain relief under the PCRA premised on a claim that counsel was

ineffective, a petitioner must establish by a preponderance of the evidence

that counsel’s ineffectiveness so undermined the truth determining process

that no reliable adjudication of guilt or innocence could have taken place.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally,

counsel’s performance is presumed to be constitutionally adequate, and

counsel will only be deemed ineffective upon a sufficient showing by the

petitioner.” Id. This requires the petitioner to demonstrate that: (1) the

underlying claim is of arguable merit; (2) counsel had no reasonable strategic

basis for his or her action or inaction; and (3) petitioner was prejudiced by

counsel's act or omission. Id. at 533. A finding of "prejudice" requires the

petitioner to show "that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different."

Id.

       McDonald has failed to meet this burden. In his argument, McDonald

fails to cite and discuss the three-prong ineffectiveness test set forth above.1

His mere assertion that he was legally insane at the time he started the fire is


____________________________________________


1Thus, McDonald’s claim arguably is waived for lack of development. See
Commonwealth v. Tielsch, 934 A.2d 81, 93 (Pa. Super. 2007) (holding that
undeveloped claims will not be considered on appeal).


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insufficient to establish ineffectiveness. Before an evidentiary hearing will be

granted, a PCRA petitioner “must set forth an offer to prove at an appropriate

hearing sufficient facts upon which a reviewing court can conclude that trial

counsel may have, in fact, been ineffective.” Commonwealth v. Begley,

780 A.2d 605, 635 (Pa. 2001) (quoting Commonwealth v. Pettus, 424 A.2d

1332, 1335 (Pa. 1981). McDonald made no such proffer.

      Without such a proffer, McDonald has failed to establish that his claim

of ineffectiveness has arguable merit and that he was prejudiced by counsel’s

omission. As the Commonwealth noted in its response to the PCRA petition,

an insanity defense “requires – at a minimum – an expert witness/report

opining that at the time of committing the crime the defendant was, as a result

of mental disease or defect, either incapable of knowing what he/she was

doing or was incapable of judging that it was wrong.” Answer to PCRA Petition,

1/18/18, at 4-5 (citing, inter alia, Commonwealth v. Legg, 711 A.2d 430,

444-45 (Pa. 1998)). McDonald neither pled nor offered to prove that he had

an expert witness whose testimony would establish that he was legally insane

at the time he started the fire.   Compare id. (concluding that the PCRA

petitioner established arguable merit to his claim based upon testimony of a

doctor who opined that the petitioner’s mental condition distorted her

perceptions such that she lacked the ability to form the requisite criminal

intent).




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      Given these circumstances, the PCRA court did not err in dismissing

Appellant’s petition without first holding an evidentiary hearing.       See

Commonwealth v. Clark, 961 A.2d 80, 94 (Pa. 2008) (explaining that, in

the absence of a sufficient proffer, a petitioner’s bare assertions would

inappropriately convert an evidentiary hearing into a “fishing expedition” for

possible exculpatory evidence).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/26/2019




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