J-S24022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

WESLEY EDWARD CHANCE,

                         Appellant                  No. 1618 MDA 2015


              Appeal from the Order Entered August 21, 2015
            In the Court of Common Pleas of Huntingdon County
            Criminal Division at No(s): CP-31-CR-0000251-2009


BEFORE: GANTMAN, P.J., BOWES, AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                            FILED MARCH 04, 2016

      Wesley Edward Chance appeals from the August 21, 2015 order

denying him PCRA relief. We affirm.

      On March 5, 2010, a jury convicted Appellant of aggravated

harassment by a prisoner, which makes it a crime for an inmate, inter alia,

to spit on a prison guard. The underlying facts follow:

      The event giving rise to the prosecution occurred March 18,
      2009, at the State Correctional Institution at Smithfield (SCIS)
      which is located in Huntingdon County, Pennsylvania. At or
      around 2:00 a.m., [Appellant] was moved from his cell in the
      Restricted Housing Unit (RHU) to the Psychiatric Observation
      Area (POA) since he had been observed taking crushed
      medication. In this regard, [Appellant] told an officer that he
      took twenty-five (25) pills. Protocol at SCIS requires that moves
      be filmed as a consequence of which Corrections Officer Randy
      Wertz was present with a hand held camera and filmed the move
      from beginning to end. The move was uneventful until the end
      when [Appellant] was ordered to remove his jumpsuit. At this
      point, [Appellant] became argumentative and spit at the officers
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      involved in the move. Videographer Wertz testified that the spit
      “[H]it me in my right eye, the right side of my face, and on the
      right side of this area right in here, the chest/shoulder area
      (Indicating).” (N.T., at p. 51.) Wertz was seen by medical
      personnel at SCIS and at the J.C. Blair Hospital, Huntingdon,
      Pennsylvania. The Court and jury were shown the video of the
      incident.

Trial Court Opinion, 9/9/10, at 1-2.       Following his conviction, Appellant

received a sentence of two to seven years imprisonment.         On appeal, we

affirmed.   Commonwealth v. Chance, 37 A.3d 1226 (Pa.Super. 2011)

(unpublished memorandum), and our Supreme Court denied further review

on April 4, 2012. Commonwealth v. Chance, 42 A.3d 290 (Pa. 2012).

      Appellant filed a timely PCRA petition on May 23, 2012.          Therein,

Appellant claimed that trial counsel was ineffective for “1. failing to

investigate, discover & present a diminished capacity defense[;] 2. failing to

investigate & litigate [Appellant’s] competency to stand trial[; and] 3. failing

to litigate prosecutorial misconduct[.]” PCRA Petition, 5/23/12, at 3.

Counsel was appointed.

      An evidentiary hearing was held on July 11, 2014.          At that time,

Appellant first maintained that he was incompetent to stand trial and

requested that he be accorded a competency hearing. The PCRA judge, who

had presided over Appellant’s trial, noted that trial counsel had requested a

competency hearing. It outlined its reasons for denying that hearing, which

were that the Department of Corrections had produced Appellant’s mental

health records.    Those records indicated that Appellant was “examined

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between February 3 and February 25 of 2010.         And the bottom line is they

concluded that there was nothing wrong.” N.T. Hearing, 7/11/14, at 14. At

the hearing, Appellant also denied having any memory of the incident and

reported that he had ingested numerous medications and was suicidal when

he spat at the prison guards.

      Appellant’s trial counsel, David G. Smith, Esquire, testified that

Appellant never told him that he did not have a recollection of the incident.

He indicated that his defense focused on the fact that Appellant was very

compliant with being transported and harbored no ill-will toward the prison

guards. Mr. Smith acknowledged that Appellant asked him about presenting

a diminished capacity defense but testified that he did not consider

presenting it due to its limited applicability.

      On February 13, 2015, the Commonwealth asked the court to order

the Pennsylvania Department of Corrections to produce Appellant’s medical

records. On February 19, 2015, that order was granted. On June 30, 2015,

Appellant filed a motion indicating that his “institutional medical and mental

health records were recently delivered to the Court, to the Commonwealth of

Pennsylvania” and to his counsel.       Motion to Consider Petitioner’s Medical

and Mental Health Records, 6/30/15, at ¶ 1. Appellant asked the court to

“enter such interim order as will allow [Appellant] to direct the court to those

particular records which [Appellant] considers relevant to [Appellant’s] claim

of diminished capacity on or around March 18, 2009, the date of the offense,

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and further to allow [Appellant] to offer such records as evidence in this

proceeding.” Id. at 3. Appellant specifically declined to make the records

part of the certified record herein due to their private nature. Id. at ¶ 4.

      Simultaneously with this petition, Appellant filed his brief in support of

PCRA relief. Therein, Appellant averred that trial counsel was ineffective for

failing to raise the affirmative defense of diminished capacity.    Petitioner’s

Brief Memorandum in Support of PCRA Relief, 6/30/15, at 2 (“In the instant

case, trial counsel was ineffective by failing to assert a diminished capacity

defense. Trial counsel, through medical and mental health records coupled

with expert testimony, could have shown [Appellant] lacked the mental

capacity to form the specific intent required for guilt[.]”).

      On August 21, 2015, the court denied PCRA relief, concluding: 1) the

diminished capacity defense was not available to the offense in question; 2)

Appellant also failed to establish that he suffered from a diminished capacity

by neglecting to present expert testimony on that subject at the PCRA

hearing; and 3) trial counsel was not ineffective for failing to explore

Appellant’s competency to stand trial since counsel did undertake that

action.   The PCRA court did not resolve the outstanding petition for

consideration of Appellant’s mental health records. This appeal followed the

denial of PCRA relief.

      In his court-ordered Pa.R.A.P. 1925(b) statement, Appellant averred

that the PCRA court “erred when it failed to grant the Petition to Consider

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Petitioner’s Medical Records Filed on June 30, 2015[.]” Concise Statement of

the Errors Complained of on Appeal, 10/24/15, at 1.         Appellant continued

that this error foreclosed him from establishing that “trial counsel was

ineffective by failing to assert a diminished capacity defense,” and that “trial

counsel, through medical and mental health records coupled with expert

testimony, could have shown [Appellant] lacked the mental capacity to form

the specific intent required for guilt.” Id. at 1-2.

         On appeal, Appellant raises the single issue: “Did the PCRA court err

when it failed to grant the Petition to Consider Petitioner’s Medical and

Mental Health Records filed on June 30, 2015, by Appellant Wesley Edward

Chance[?]” Appellant’s brief at 4.      Specifically, Appellant avers that those

records would have proven that trial counsel was ineffective for failing to

prove that he did not possess the intent element of the crime. Conceding

that the “defense of diminished capacity is an extremely limited defense,” he

also avers that the records in question would have proven that trial counsel

should have explored “insanity as a defense to a charged offense.”

Appellant’s brief at 12 (citing 18 Pa.C.S. § 315 and Commonwealth v.

Rabald, 951 A.2d 329 (Pa. 2008) (discussing defense of guilty but mentally

ill)).

         Initially, we observe that, “Our standard of review of an order granting

or denying relief under the PCRA requires us to determine whether the

decision of the PCRA court is supported by the evidence of record and is free

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of legal error. The PCRA court's findings will not be disturbed unless there is

no support for the findings in the certified record.” Commonwealth v.

Melendez-Negron, 123 A.3d 1087, 1090 (Pa.Super. 2015) (citation

omitted). Appellant avers that trial counsel rendered ineffective assistance,

which would have been established had the PCRA court reviewed his medical

records. “To plead and prove ineffective assistance of counsel a petitioner

must establish: (1) that the underlying issue has arguable merit; (2)

counsel's actions lacked an objective reasonable basis; and (3) actual

prejudice resulted from counsel's act or failure to act.” Commonwealth v.

Stewart, 84 A.3d 701, 706 (Pa.Super. 2013) (en banc). The failure to meet

any of these aspects of the ineffectiveness test results in the claim failing.

Id.


      Appellant’s averments relate to trial counsel’s failure to refute the

mens rea element of aggravated harassment by a prisoner. That crime is

defined as follows:

            A person who is confined in or committed to any local or
      county detention facility, jail or prison or any State penal or
      correctional institution or other State penal or correctional facility
      located in this Commonwealth commits a felony of the third
      degree if he, while so confined or committed or while undergoing
      transportation to or from such an institution or facility in or to
      which he was confined or committed, intentionally or
      knowingly causes or attempts to cause another to come into
      contact with blood, seminal fluid, saliva, urine or feces by
      throwing, tossing, spitting or expelling such fluid or material.




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18 Pa.C.S. § 2703.1. Thus, aggravated harassment by a prisoner requires

specific intent.

       Appellant first assails trial counsel’s failure to pursue a diminished

capacity defense, arguing that the mental health records that the trial court

purportedly refused to consider would have established such ineffectiveness.

The diminished capacity defense is available to a defendant who “attempts

to prove that he was incapable of forming the specific intent to kill; if the

defendant is successful, first-degree murder is mitigated to third degree.”

Commonwealth v. Sasse, 921 A.2d 1229, 1236 (Pa.Super. 2007). In the

context of a mental disorder, the disorder in question must affect “the

cognitive functions of deliberation and premeditation necessary to formulate

a specific intent[.]” Id.1 The defense of diminished capacity is not available

for any crimes other than first-degree murder.                  As we outlined in

Commonwealth v. Russell, 938 A.2d 1082, 1092 (Pa.Super. 2007)

(citations omitted), “The ‘diminished capacity’ defense is available only as a

defense to first-degree murder and not to second-degree murder, which was

the offense charged against Appellant.            Likewise, it is not available as a

defense     for    other   ‘specific   intent’   non-homicide   offenses.”   Accord

____________________________________________


1
   The diminished capacity defense is also available if the defendant was
intoxicated to such an extent that he was unable to formulate the specific
intent to kill. Commonwealth v. Hutchinson, 25 A.3d 277, 312 (Pa. 2011)




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Commonwealth v. Swartz, 484 A.2d 793, 795 (Pa.Super. 1984) (defense

of diminished capacity cannot be proffered to defend robbery charge, even

though specific intent is an element of the crime, as the defense is available

only with respect to first-degree murder). Thus, regardless of the contents

of mental health records that Appellant sought to have the PCRA court

consider, the defense in question could not be made at Appellant’s trial, and

Appellant cannot establish that trial counsel was ineffective for failing to

pursue it.

       As noted, Appellant also claims that the PCRA court should have

considered his mental health records since they would have proven that trial

counsel was ineffective for failing to pursue an insanity defense under 18

Pa.C.S. § 315.2        He also cites to Rabold, supra, which discusses the

defense of guilty but mentally ill embodied in 18 Pa.C.S. § 314.3


____________________________________________


2
  That provision outlines the insanity defense, which is considerably more
onerous to establish than a diminished capacity defense. Specifically,

       (a) General rule.--The mental soundness of an actor engaged
       in conduct charged to constitute an offense shall only be a
       defense to the charged offense when the actor proves by a
       preponderance of evidence that the actor was legally insane at
       the time of the commission of the offense.

       (b) Definition.--For purposes of this section, the phrase “legally
       insane” means that, at the time of the commission of the
       offense, the actor was laboring under such a defect of reason,
       from disease of the mind, as not to know the nature and quality
(Footnote Continued Next Page)


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       This averment is waived on various grounds.            First, Appellant never,

during the PCRA proceedings, challenged trial court’s stewardship for failing

to present either an insanity defense or a position that Appellant was guilty

but mentally ill.      His PCRA petition mentions only the diminished capacity

defense. At the PCRA hearing, Appellant delved into the diminished capacity

defense but not insanity or guilty but mentally ill.          Finally, the brief that

Appellant filed in support of PCRA relief failed to raise the possibility of an

insanity or guilty but mentally ill challenge to the offense in question. These

averments cannot be considered on appeal because they were not raised

during the trial court proceedings.              Commonwealth v. Little, 903 A.2d

1269, 1272 (Pa.Super. 2006); Pa.R.A.P. 302(a) (“Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.”).

                       _______________________
(Footnote Continued)

       of the act he was doing or, if the actor did know the quality of
       the act, that he did not know that what he was doing was wrong.

18 Pa.C.S. § 315.
3
    That statutes provides:

          A person who timely offers a defense of insanity in
       accordance with the Rules of Criminal Procedure may be found
       “guilty but mentally ill” at trial if the trier of facts finds, beyond a
       reasonable doubt, that the person is guilty of an offense, was
       mentally ill at the time of the commission of the offense and was
       not legally insane at the time of the commission of the offense.

18 Pa.C.S. § 314(a).




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      Likewise, the issue of whether the mental health records would have

established that trial counsel should have pursued insanity or guilty but

mentally ill defenses was not included in Appellant’s Pa.R.A.P. 1925(b)

statement. Therein, the sole averment was that the trial court should have

considered mental health records that would have proven that trial counsel

was ineffective for failing to pursue a diminished capacity defense. “[A]ny

issues   not   raised   in   a   Rule   1925(b)     statement    are    waived.”

Commonwealth v. Butler, 812 A.2d 631, 634 (Pa. 2002); see also Kelley

v. Mueller, 912 A.2d 202, 203-04 (Pa. 2006) (re-affirming that issues that

are not presented in a Pa.R.A.P. 1925(b) statement are waived).

      An additional problem with Appellant’s position on appeal is that it is

entirely dependent upon whether his mental health records established the

availability of any of the three defenses mentioned in his brief.      Appellant

deliberately failed to include his mental health records in the certified record,

even though they could have been filed under seal. In light of this omission,

we are utterly unable to review whether the PCRA court erred in neglecting

to consider the records in that they established Appellant’s entitlement to

PCRA relief.   “It is a well settled principle that appellate courts may only

consider facts which have been duly certified in the record on appeal. Where

a claim is dependent upon materials not provided in the certified record, that

claim is considered waived.”     Commonwealth v. Proetto, 771 A.2d 823,




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834 (Pa.Super. 2001) (citations omitted). Hence, Appellant’s contention on

appeal is waived for this additional reason.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2016




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