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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
  JONATHAN NUNEZ,                              :
                                               :
                       Appellant               :   No. 3166 EDA 2018

            Appeal from the PCRA Order Entered October 19, 2018
     In the Court of Common Pleas of Lehigh County Criminal Division at
                      No(s): CP-39-CR-0004281-2012

BEFORE:      MURRAY, J., STRASSBURGER, J.*, and PELLEGRINI, J.*

MEMORANDUM BY MURRAY, J.:                          FILED SEPTEMBER 06, 2019

       Jonathan Nunez (Appellant) appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

       A prior panel of this Court recounted:

           [W]e need only provide a brief summary, as follows: David
       Bonaskiewich was walking his dogs on Lanze Road, Salisbury
       Township, Lehigh County, Pennsylvania, between 7:00 and 8:00
       p.m. on July 5, 2012. One of the dogs stopped and stared intently
       into a wooded area along the road. From his position on the side
       of the road, Mr. Bonaskiewich observed a human body ten to
       fifteen feet into the woods. Mr. Bonaskiewich called his wife, and
       she contacted the police.

         The police investigation led to identification of the victim and
       Appellant’s arrest. Appellant confessed to killing the victim by
       beating her and cutting her throat; he also poured bleach on the
       body. Appellant was charged with one count of homicide. He filed
       omnibus pretrial motions, including a motion to suppress his
____________________________________________


*Retired   Senior Judge assigned to the Superior Court.
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     statements to the police and physical evidence. The trial court
     conducted a hearing on March 11, 2013, and it denied Appellant’s
     pretrial motions on April 19, 2013. Order and Opinion, 4/19/13.

        Appellant’s jury trial began on August 12, 2013, and the jury
     found him guilty of first degree murder on August 19, 2013. N.T.,
     8/12/13, at 2; N.T., 8/19/13, at 100. The trial court sentenced
     Appellant to life imprisonment without the possibility of parole.
     Sentencing Order, 8/30/13.         Appellant filed post-sentence
     motions on September 9, 2013, which the trial court denied on
     December 24, 2013. Order and Opinion, 12/24/13.

        Between the filing of Appellant’s post-sentence motions in
     September of 2013 and the trial court’s decision thereon in
     December of 2013, Appellant filed a supplemental motion raising
     ineffective assistance of pretrial counsel. Additionally, trial and
     post-sentence counsel filed a motion to withdraw. The trial court
     held hearings on both motions. N.T., 11/1/13 and N.T., 12/10/13,
     respectively.    Although the trial court permitted counsel to
     withdraw as Appellant’s private attorney, it appointed him to
     represent Appellant through post-sentence motions and the filing
     of an appeal. Order, 12/10/13.

         On May 19, 2014, Appellant informed the trial court by letter
     that counsel had not filed an appeal. In response, the trial court
     appointed a public defender to investigate Appellant’s claim and
     file any appropriate motions. Order, 5/19/14. The next day,
     previous counsel acknowledged his failure to file Appellant’s direct
     appeal and filed a notice of appeal nunc pro tunc. Memorandum
     in Support of Appeal Nunc Pro Tunc, 5/20/14, at ¶ 8; Notice of
     Appeal, 5/20/14. The trial court denied counsel’s request for an
     appeal nunc pro tunc. Order, 5/22/14. The public defender filed
     a petition for relief pursuant to the Post Conviction Relief Act
     (“PCRA”), 42 Pa.C.S.[A.] §§ 9541-9546, on May 22, 2014,
     alleging, inter alia, prior counsel’s ineffectiveness for failing to file
     an appeal. PCRA Petition, 5/22/14. Following a hearing, and
     without objection from the Commonwealth, the [PCRA] court
     reinstated Appellant’s appeal rights nunc pro tunc.              Order,
     6/27/14. Appellant filed a timely notice of appeal nunc pro tunc
     on July 1, 2014[.]

Commonwealth v. Nunez, 3141 EDA 2014 at 1-3 (Pa. Super. Mar. 15, 2016)

(unpublished memorandum, footnote omitted).

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      On March 15, 2016, this Court affirmed Appellant’s judgment of

sentence. See id. at 21. On August 17, 2016, our Supreme Court denied

Appellant’s petition for allowance of appeal.

      On May 16, 2017, Appellant filed a pro se PCRA petition. On May 22,

2017, the PCRA court appointed counsel, who filed an amended PCRA petition

on November 16, 2017. Appellant challenged pre-trial counsel’s effectiveness

with respect to his police interview and confession, and trial counsel’s

effectiveness regarding the failure to call an expert witness in support of

Appellant’s diminished capacity defense. On July 25, 2018, the PCRA court

held a hearing on Appellant’s petition. On October 19, 2018, the PCRA court

denied the petition. This timely appeal followed.

      On appeal, Appellant presents the following issue for review:

      A.   WHETHER THE [PCRA] COURT ERRED IN DENYING
      [APPELLANT]’S REQUEST FOR POST-CONVICTION RELIEF WHEN
      [APPELLANT] WAS RENDERED INEFFECTIVE ASSISTANCE OF
      COUNSEL BY PRE[-]TRIAL COUNSEL ALLOWING [APPELLANT] TO
      GIVE INCRIMINATING STATEMENTS TO THE POLICE AND TRIAL
      COUNSEL WHO FAILED TO COMPLY WITH DISCOVERY
      DEADLINES WHICH PRECLUDED [APPELLANT] FROM PRESENTING
      THE PSYCHOLOGICAL REPORTS AND THE CLINICAL AND
      FORENSIC PSYCHOLOGIST AS PART OF HIS DEFENSE?

Appellant’s Brief at 7.

      We review the denial of PCRA relief by “examining whether the PCRA

court’s findings of fact are supported by the record, and whether its

conclusions of law are free from legal error.” Commonwealth v. Busanet,

54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of


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the PCRA court and the evidence of record, viewed in the light most favorable

to the party who prevailed in the PCRA court proceeding.” Id.

      Appellant’s sole issue on appeal raises two allegations of ineffective

assistance of counsel. In deciding ineffective assistance of counsel claims, we

begin with the presumption that counsel rendered effective assistance.

Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome

that presumption, the petitioner must establish: “(1) the underlying claim has

arguable merit; (2) no reasonable basis existed for counsel’s action or failure

to act; and (3) the petitioner suffered prejudice as a result of counsel’s error,

with prejudice measured by whether there is a reasonable probability that the

result of the proceeding would have been different.” Id. (citation omitted).

To demonstrate prejudice in an ineffective assistance of counsel claim, “the

petitioner must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If the

petitioner fails to prove any of these prongs, the claim is subject to dismissal.

Bomar, 104 A.3d at 1188.

      First, Appellant argues that pre-trial counsel was ineffective during his

interview with the police. Specifically, Appellant asserts that pre-trial counsel

was ineffective for allowing the interview to continue for over six hours and

for failing to realize that Appellant was not innocent before Appellant gave the

police incriminating statements.


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      Unfortunately, pre-trial counsel is deceased and was thus unavailable to

testify at the evidentiary hearing on Appellant’s PCRA petition. PCRA Court

Opinion, 10/19/18, at 10. The PCRA court, however, summarized pre-trial

counsel’s testimony from a prior hearing relating to his representation of

Appellant during the police interview:

      [Pre-trial counsel] informed [Appellant] that he did not have to
      talk to the detectives, but [Appellant] kept denying any role in
      [the victim]’s death, and indicated that he wanted to “clear up”
      his side of the story and the rumors he was hearing via text
      messages and on “Facebook.” On July 30, 2012, [pre-trial
      counsel] met with [Appellant] (and his parents) after [Appellant]
      returned to the Lehigh Valley in [Pre-trial counsel]’s law office.
      [Pre-trial counsel] believed, at the time, that [Appellant]’s return
      to the area after leaving the country made [Appellant]’s story
      credible.

      [Pre-trial counsel] met with [Appellant] alone for [one-and-a-half]
      to two hours. Again, [pre-trial counsel] told [Appellant] that he
      did not need to talk to the detectives and told him that the
      detectives were not giving [pre-trial counsel] much information.
      [Pre-trial counsel] told [Appellant] that, whatever he decided to
      do, he needed to tell the truth because any lies would be
      discovered.

                                 *       *   *

          On the morning of his interview with police (August 1, 2012),
      [Appellant] came to [pre-trial counsel]’s office. . . . [Appellant]
      then gave [pre-trial counsel] a detailed account of the days
      surrounding the victim’s murder. At that time, [Appellant] told
      [pre-trial counsel] that he knew the victim, but that the two did
      not have any relationship. [Appellant] continued to indicate that
      he wished to talk to the police to clear his name. [Pre-trial
      counsel] and [Appellant] drove to the Salisbury Police Department
      together. In the car, [pre-trial counsel] told [Appellant] that the
      police would issue Miranda warnings and that [Appellant] could
      still elect to remain silent.




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         [Pre-trial counsel] was seated next to [Appellant] during the
      entire course of the interview. Numerous breaks were taken
      during the course of the interview with the police and [pre-trial
      counsel] indicated at the Hearing that he repeatedly told
      [Appellant] that he could stop talking at any time.               Upon
      reflection, [pre-trial counsel] recalled that for the first half of the
      interview, he believed that [Appellant] was innocent of any crime
      having to do with the victim. When [pre-trial counsel] realized
      that [Appellant] was blatantly lying to the detectives, he
      requested a break. [Pre-trial counsel] recalled that he told
      [Appellant] that he had two choices: to stop talking to the
      detectives, or to stop lying to them. [Appellant] continued to
      insist that he didn’t kill [the victim] and ultimately chose to keep
      talking to the police.

PCRA Court Opinion, 10/19/18, at 10-12 (quoting Trial Court Opinion,

12/24/13, at 22-25); see also N.T., 11/1/13, at 50-62.

      In rejecting Appellant’s ineffective assistance of counsel claim as to pre-

trial counsel, the PCRA Court stated:

          Based on the foregoing, we find pre-trial counsel’s actions
      reasonable under the circumstances. [Pre-trial counsel] recalled
      that for the first half of the interview, he believed that [Appellant]
      was innocent of any crime having to do with the victim. When
      [pre-trial counsel] realized that [Appellant] was blatantly lying to
      the detectives, he requested a break. [Pre-trial counsel] testified
      that he told [Appellant] that he had two choices: to stop talking
      to the detectives, or to stop lying to them. [Appellant] was
      provided with sound legal advice but continued to insist that he
      didn’t kill [the victim] and ultimately chose to keep talking to the
      police. Counsel cannot be held ineffective for failing to override a
      client’s decision. . . . Therefore, we find no merit to [Appellant]’s
      allegations against pre-trial.

PCRA Court Opinion, 10/19/18, at 13-14.

      We agree. The record reflects that pre-trial counsel initially believed

Appellant’s claims of innocence and consequently, advised him to cooperate

with police. Id. at 10-12; see also N.T., 11/1/13, at 50-62. Pre-trial counsel

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additionally advised Appellant that he did not have to speak with police, but

that if he did, he should not lie to the police. Id. The record further reflects

that pre-trial counsel stayed with Appellant throughout the duration of the

interview, and that when pre-trial counsel perceived Appellant to be lying, he

stopped the interview and privately told Appellant to either stop lying or stop

the interview. Id. Appellant nevertheless continued speaking with the police

and eventually confessed to the murder. Id.

      Therefore, the record supports the PCRA court’s determination that pre-

trial counsel’s advice to Appellant was reasonable, as counsel cannot be

ineffective for advising his client to cooperate with the police when the client

insists he is innocent.   See Commonwealth v. Kesting, 417 A.2d 1262,

1265 (Pa. Super. 1979) (“Under those circumstances, we cannot find that an

attorney’s advice to cooperate with the police, so long as that advice makes

clear that the decision ultimately lies with the accused, is, without more,

ineffective assistance of counsel.”). Accordingly, because pre-trial counsel’s

actions were reasonable, we conclude that the PCRA court did not abuse its

discretion in dismissing this ineffective assistance of counsel claim.     See

Bomar, 104 A.3d at 1188.

      Second, Appellant argues that trial counsel was ineffective for failing to

comply with the discovery deadline for submitting the expert report of Dr.

Frank Dattilio (Dr. Dattilio), thereby precluding trial counsel from calling Dr.

Dattilio as an expert witness at trial. Appellant maintains that trial counsel


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could have used Dr. Dattilio’s testimony to present “evidence regarding

[Appellant]’s physical and emotional state as affected by the substances that

he had taken [] during the incident that led up to the homicide.” Appellant’s

Brief at 20.

      “Evidence is sufficient to sustain a conviction of first-degree murder

where the Commonwealth establishes that: (1) a human being was unlawfully

killed; (2) the defendant is responsible for the killing; and (3) the defendant

acted with malice and the specific intent to kill.” Commonwealth v. Haney,

131 A.3d 24, 33 (Pa. 2015). “Specific intent to kill can be proven where the

defendant knowingly applies deadly force to the person of another.” Id. at 36

(quotations and citation omitted). With respect to the diminished capacity

defense to first-degree murder, our Supreme Court has explained:

         A diminished capacity defense “does not exculpate the
      defendant from criminal liability entirely, but instead negates the
      element of specific intent.” Commonwealth v. C. Williams, 980
      A.2d 510, 527 (Pa. 2009). For a defendant who proves a
      diminished capacity defense, first-degree murder is mitigated to
      third-degree murder. Commonwealth v. Saranchak, 866 A.2d
      292, 299 (Pa. 2005). To establish a diminished capacity defense,
      a defendant must prove that his cognitive abilities of deliberation
      and premeditation were so compromised, by mental defect or
      voluntary intoxication, that he was unable to formulate the
      specific intent to kill. Commonwealth v. Rainey, 928 A.2d 215,
      237 (Pa. 2007); Commonwealth v. Spotz, 896 A.2d 1191, 1218
      (Pa. 2006). The mere fact of intoxication does not give rise to a
      diminished capacity defense. Spotz, supra; Commonwealth v.
      Blakeney, 946 A.2d 645, 653 (Pa. 2008) (requiring that a
      defendant show that he was “overwhelmed to the point of losing
      his faculties and sensibilities” to prove a voluntary intoxication
      defense). Evidence that the defendant lacked the ability to control
      his or her actions or acted impulsively is irrelevant to specific
      intent to kill, and thus is not admissible to support a diminished

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      capacity defense. Commonwealth v. Vandivner, 962 A.2d
      1170, 1183 (Pa. 2009). Furthermore, diagnosis with a personality
      disorder does not suffice to establish diminished capacity.
      Commonwealth v. Bracey, 795 A.2d 935, 946 (Pa. 2001).

Commonwealth v. Hutchinson, 25 A.3d 277, 312 (Pa. 2011) (citations

modified).

      The PCRA court rejected Appellant’s claim, explaining that trial counsel

initially decided not to submit Dr. Dattilio’s expert report or call him as a

witness because he could not offer testimony helpful to a diminished capacity

defense. PCRA Court Opinion, 10/19/18, at 18-19. Although trial counsel

unsuccessfully attempted mid-trial to call Dr. Dattilio as a witness in a last-

ditch effort to save Appellant when the evidence of his guilt appeared to be

substantial, the PCRA court determined that trial counsel’s initial actions in

declining to utilize Dr. Dattilio’s report and testimony were reasonable. Id.

The PCRA court determined that Appellant was not prejudiced by trial

counsel’s inability call Dr. Dattilio as a witness because, at best, Dr. Dattilio

could only offer testimony regarding Appellant’s personal background, which

was not relevant to a diminished capacity defense. Id.

      We agree. At Appellant’s PCRA hearing, Dr. Dattilio testified that trial

counsel retained him to conduct a psychological evaluation of Appellant to

determine whether Appellant had a viable diminished capacity defense. N.T.,

7/25/18, at 12. After examining Appellant and reviewing all of the relevant

documents, Dr. Dattilio determined that Appellant suffered from no significant

mental health disorders, learning disabilities, or prior head trauma, and that

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he was likely not under the influence of any drugs or alcohol on the night he

killed the victim. Id. at 15-16, 24-28, 35-36. Indeed, Dr. Dattilio was of the

opinion that Appellant did not have any mental health or substance abuse

issues that would have impeded Appellant from forming the specific intent to

kill. Id. at 15-19, 35-36. Thus, Dr. Dattilio informed trial counsel that he

would be unable to provide the defense with any helpful testimony. See id.

at 15, 44-45. For these reasons, trial counsel determined that Dr. Dattilio

would not be a helpful witness. Id. at 45-49. Trial counsel explained that the

only reason he even attempted to call Dr. Dattilio as a witness was as a last-

ditch effort to help Appellant’s case. Id.

      Because Dr. Dattilio’s testimony would not have helped Appellant

establish a diminished capacity defense, trial counsel’s decision not to call Dr.

Dattilio as a witness was reasonable and did not prejudice Appellant.            As

Appellant admits in his appellate brief, Dr. Dattilio’s testimony was “clearly

not relevant for purposes of a mental health or mental disability defense[.]”

Appellant’s Brief at 21. While Appellant cryptically suggests that Dr. Dattilio’s

testimony would have been relevant to establish Appellant’s “cognitive

abilities” at the time of the homicide, Appellant’s Brief at 21, he fails to develop

this assertion or otherwise explain how Dr. Dattilio’s testimony would have

benefited him at trial. Accordingly, as trial counsel’s failure to call Dr. Dattilio

was reasonable and did not prejudice Appellant, the trial court did not abuse




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its discretion in dismissing this ineffective assistance of counsel claim. See

Bomar, 104 A.3d at 1188.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/6/19




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