J-S33020-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                                :           PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    DARRELL STALLINGS                           :
                                                :
                       Appellant                :      No. 1825 EDA 2019

                  Appeal from the Order Entered May 24, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0013251-2008

BEFORE:      DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MURRAY, J.:                                  FILED AUGUST 31, 2020

        Darrell Stallings (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.

        At 6:05 p.m. on April 12, 2008, Appellant shot and killed Gregory Barber

(Barber) and shot, but did not kill, James Locke (Locke) near the northwest

corner of 26th and Silver Streets in Philadelphia. On September 16, 2010, a

jury    convicted    Appellant     of   first-degree    murder,   attempted   murder,

aggravated assault, and firearms not to be carried without a license. 1 The

trial court convicted Appellant of persons not to possess firearms2 after the

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*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 2502(a), 901, 2702(a)(1), 6106(a).

2   18 Pa.C.S.A. § 6105(a).
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jury returned its verdict on the remaining charges. The same day, the trial

court sentenced Appellant to life in prison without parole for the first-degree

murder conviction, a consecutive term of 10 to 20 years of incarceration for

attempted murder, a concurrent sentence of 2 to 7 years of imprisonment for

persons not to possess a firearm, and a concurrent sentence of 2 to 7 years

of incarceration for firearms not to be carried without a license.

       On April 11, 2012, this Court affirmed Appellant’s judgment of sentence

for his first-degree murder, attempted murder, and aggravated assault

convictions, but vacated his judgment of sentence with respect to Appellant’s

firearms offenses.3 See Commonwealth v. Stallings, 366 EDA 2011 at 17

(Pa. Super. Apr. 11, 2012) (unpublished memorandum).              On October 12,

2012, our Supreme Court denied Appellant’s petition for allowance of appeal.

       On December 17, 2012, Appellant filed a timely pro se PCRA petition

raising various ineffective assistance of counsel claims against his trial

counsel.     For reasons that are not entirely clear from the record, the

disposition of Appellant’s PCRA petition was delayed by counsel appointments

and re-appointments, several time extensions, numerous continuances, and

multiple judge reassignments. On October 16, 2018, the PCRA court held a

hearing on Appellant’s PCRA petition.            On May 24, 2019, the PCRA court

entered an order dismissing Appellant’s petition. This timely appeal followed.



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3   On remand, the Commonwealth nolle prossed the firearms offenses.

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      Appellant presents the following issues for our review:

      1.    Did the PCRA [c]ourt err by dismissing [Appellant’s] claim
      that [Trial Counsel] was ineffective for failing to investigate and
      present a diminished capacity defense?

      2.     Did the PCRA [c]ourt err by denying [Appellant’s] claim that
      [Trial Counsel] was ineffective for giving him faulty advice that
      caused him to waive his right to testify at trial?

Appellant’s Brief at 2.

      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

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.

      Both of Appellant’s issues raise claims of ineffective assistance of

counsel. With respect to ineffective assistance of counsel claims, our Supreme

Court has stated:

         It is well-settled that counsel is presumed to have been
      effective and that the petitioner bears the burden of proving
      counsel’s alleged ineffectiveness. Commonwealth v. Cooper,
      941 A.2d 655, 664 (Pa. 2007). To overcome this presumption, a
      petitioner must establish that: (1) the underlying substantive
      claim has arguable merit; (2) counsel did not have a reasonable
      basis for his or her act or omission; and (3) the petitioner suffered
      prejudice as a result of counsel’s deficient performance, “that is,
      a reasonable probability that but for counsel’s act or omission, the
      outcome of the proceeding would have been different.” Id. A
      PCRA petitioner must address each of these prongs on appeal.
      See Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa.
      2007) (explaining that “appellants continue to bear the burden of
      pleading and proving each of the Pierce elements on appeal to

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      this Court”). A petitioner’s failure to satisfy any prong of this test
      is fatal to the claim. Cooper, 941 A.2d at 664.

Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citations

modified).

      For his first issue, Appellant argues that the PCRA court erred in

dismissing his claim that Trial Counsel was ineffective for failing to investigate

and pursue a diminished capacity defense.          Appellant asserts that Trial

Counsel should have presented a diminished capacity defense because prison

medical staff diagnosed him with schizophrenia and bipolar disorder following

his arrest.   Appellant also provided expert opinion testimony in his PCRA

petition from Dr. Timothy Ring, a forensic pathologist, who opined that

Appellant’s mental health issues may have precluded him from forming the

specific intent to kill needed to commit first-degree murder. Consequently,

Appellant suggests that his shooting of Barber and Locke may have been the

result of a paranoid delusion and Trial Counsel’s failure to pursue a diminished

capacity defense was “wholly unreasonable.” Appellant’s Brief at 14.

      Regarding the defense of diminished capacity, our Supreme Court has

explained:

         A defense of diminished capacity, whether grounded in mental
      defect or voluntary intoxication, is an extremely limited defense
      available only to those defendants who admit criminal liability but
      contest the degree of culpability based upon an inability to
      formulate the specific intent to kill. Commonwealth v. C.
      Williams, 980 A.2d 510, 527 (Pa. 2009); Commonwealth v.
      Gibson, 951 A.2d 1110, 1131 (Pa. 2008); Commonwealth v.
      Spotz, 896 A.2d 1191, 1218 (Pa. 2006) (“Absent an admission
      from [the defendant] that he had shot and killed [the victim], trial

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     counsel could not have presented a diminished capacity
     defense.”). If a defendant does not admit that he killed the
     victim, but rather advances an innocence defense, then
     evidence on diminished capacity is inadmissible.
     Commonwealth v. Laird, 988 A.2d 618, 632 (Pa. 2010).

        A diminished capacity defense “does not exculpate the
     defendant from criminal liability entirely, but instead negates the
     element of specific intent.” C. Williams, supra at 527 (citing
     Gibson, supra at 1131).         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); Spotz, supra at 1218. . . . Furthermore,
     diagnosis with a personality disorder does not suffice to
     establish diminished capacity. Commonwealth v. Bracey,
     795 A.2d 935, 946 (Pa. 2001).

         In numerous prior cases before this Court, defendants who had
     maintained their innocence during trial have subsequently raised
     post-conviction claims of ineffective assistance of trial counsel for
     failure to present and/or to investigate a defense of diminished
     capacity. We have consistently declined to hold that trial counsel
     was ineffective for failing to advance a defense that directly and
     irreconcilably conflicted with the accused’s claims of innocence.
     Rainey, supra at 237 (declining to conclude that defense counsel
     was ineffective for failing to present a diminished capacity defense
     when the appellant was unwilling to admit that the shot the
     victim); Spotz, supra at 1217-19 (declining to conclude that trial
     counsel was ineffective for failing to present a diminished capacity
     defense based on mental defect or voluntary intoxication because
     it would have required the appellant to concede liability, which
     was inconsistent with his averments of innocence and his
     recapitulation of events to trial counsel); Commonwealth v. R.
     Williams, 846 A.2d 105, 112 (Pa. 2004) (“[E]ven if counsel had
     thoroughly investigated [the appellant’s] past, the presentation of
     a diminished capacity defense would have directly contradicted
     [the appellant’s] assertions that someone else had committed the
     crime, and thus would not have been an available defense.”). We
     have recently stated that “whether addressing a claim of counsel’s

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      failure to investigate or failure to present [a diminished capacity
      defense], this Court has employed the same analysis.” Gibson,
      supra at 1132.

Commonwealth v. Hutchinson, 25 A.3d 277, 312-13 (Pa. 2011) (emphasis

added, citations modified, footnote omitted).

      Additionally, the evidence must provide insight as to the
      defendant’s mental state at the time of the offense, “the only
      relevant time for a diminished capacity defense.” [Spotz, 18 A.3d
      at 319] (citing [Rainey, 928 A.2d at 237] (requiring a defendant
      advancing a defense of diminished capacity based on mental
      defect to “establish [that he or she] had a mental defect at the
      time of [the] murder that affected his [or her] cognitive abilities
      of deliberation and premeditation necessary to formulate specific
      intent to kill.”)).

Commonwealth v. Mason, 130 A.3d 601, 631 (Pa. 2015).

      In this case, there is no evidence that Appellant was willing to concede

that he shot Barber and Locke prior to PCRA proceedings. At the outset of the

trial, the following transpired:

      [Trial Counsel]: The defense in this case is reasonable doubt,
      because [Appellant] knows that the witnesses said different things
      to the police already, and he believed that the witnesses were
      going to come in and change their tune. I discussed that with
      him. . . .

      THE COURT:         Do you recall that, [Appellant]?

      [Appellant]:      Yes, I recall that. That’s what I wanted him to
      question the witness about, because they were giving inconsistent
      statements, and I was pretty sure he would want them for trial.

      [Trial Counsel]: . . . That’s what we discussed about the
      strategy, Judge, and that’s what I told you before I even read my
      notes. That’s the strategy in this case, because that’s all we have
      to work with, [t]hat is what we have to work with.

N.T., 9/13/10, at 26-27.

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      Thus, as Trial Counsel’s and Appellant’s statements indicate, Appellant’s

strategy at trial was an acquittal based on his claim of innocence. See id. As

our Supreme Court has made clear, “the authority to concede criminal liability

and to authorize the presentation of a diminished capacity defense rests solely

with the accused.” Hutchinson, 25 A.3d at 313. Although the record reflects

that both Appellant and Trial Counsel were aware that Appellant suffered from

schizophrenia and bipolar disorder, there is no evidence indicating that

Appellant was willing to concede that he shot Barber and Locke prior to the

filing of his PCRA petition. Moreover, there is also no evidence indicating that

Appellant’s mental health disorders affected his mental state at the time of

the offense. See id.; see also Mason, 130 A.3d at 631. Our Supreme Court

has expressly precluded PCRA relief under these circumstances.         See id.

Accordingly, we conclude that the PCRA court did not err in denying

Appellant’s claim that Trial Counsel was ineffective for not pursuing a

diminished capacity defense.

      For his second issue, Appellant argues the PCRA court erred in

dismissing his claim that Trial Counsel was ineffective in advising Appellant

not to testify on his own behalf. Appellant asserts that Trial Counsel informed

him that the Commonwealth could cross-examine him on all of his past

convictions, which were all non-crimen falsi convictions, in order to attack his

character were he to testify. Appellant contends that because Trial Counsel

should have presented a diminished capacity defense, thereby conceding


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criminal liability, Appellant, had he have testified, “would have had no reason

to proffer character witnesses for peacefulness or law abidingness.”

Appellant’s Brief at 20.

      As our Supreme Court has explained:

      The decision of whether or not to testify on one’s own behalf is
      ultimately to be made by the defendant after full consultation with
      counsel. In order to sustain a claim that counsel was ineffective
      for failing to advise the appellant of his rights in this regard, the
      appellant must demonstrate either that counsel interfered with his
      right to testify, or that counsel gave specific advice so
      unreasonable as to vitiate a knowing and intelligent decision to
      testify on his own behalf.

Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000).

      Generally, “[e]vidence of a crime, wrong, or other act is not admissible

to prove a person's character in order to show that on a particular occasion

the person acted in accordance with the character.” Pa.R.E. 404(b)(1). “For

the purpose of attacking the credibility of any witness, evidence that the

witness has been convicted of a crime . . . must be admitted if it involved

dishonesty or false statement[,]” i.e., crimen falsi. Pa.R.E. 609(a). This Court

has also stated:

         Pennsylvania courts [are] cautious when considering whether
      to admit evidence of prior convictions for purposes of impeaching
      the credibility of a defendant testifying on his own behalf.”
      However, our decisional law recognizes that evidence of a non-
      crimen falsi conviction . . . may be admitted into evidence after
      the defendant raises the issue of his good character.

Commonwealth v. Murphy, 182 A.3d 1002, 1008 (Pa. Super. 2018)

(citations omitted) (explaining that the prosecution can “cross-examine a


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defendant concerning his past convictions to repudiate specific evidence of

good character offered by that defendant”).

      At Appellant’s PCRA hearing, Trial Counsel testified, upon questioning

by Appellant’s PCRA counsel, regarding his advice to Appellant on his decision

whether to testify at trial:

      Q.    So in fact, didn’t you advise [Appellant], when you were
      talking to him about testifying, that if he testified, his criminal
      conviction would come in?

      A.    No.

      Q.    Do you have a recollection of that?

      A.    I can tell you this. It will take awhile to explain, but I will
      have to explain. The answer is, I have no independent recollection
      of my conversation with your client about whether or not --

      THE COURT: At the time, he was your client?

      A.    At the time, he was my client about whether or not he had
      crimen falsi background, whether or not he had non[-]crimen falsi
      in his background, I'm not sure. I discussed it with him many
      times, because -- yes.

            So that the answer is that I do not specifically recall, but I
      would never, ever have told him not to testify because of the fact
      that he had crimen falsi because he doesn’t have crimen falsi.

      Q.    But you don’t recall whether or not you told him --

      A.    I don’t specifically recall.

      Q.    -- that if he testified, his prior convictions would come in?

                                  *        *   *

      A.    I don’t have a specific recollection of my conversation with
      your client -- my former client and your client -- about his right to


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      testify as it pertains to crimen falsi or non[-]crim[en] falsi
      convictions.

             However, it’s my practice to always discuss this fully with all
      of my clients, and I would have to say that from all the years I’ve
      been doing this, that I did it with him and fully knew, understood,
      the import of his criminal record as it would affect his right to
      testify or my decision in informing him whether or not to testify.

N.T., 10/16/18, at 16-18.

      As Trial Counsel’s testimony indicates, the record contains no evidence

supporting Appellant’s claim that Trial Counsel advised him not to testify on

his own behalf because he had prior non-crimen falsi convictions. See id.

Moreover, even if Trial Counsel had given Appellant such advice, Appellant’s

argument that the Commonwealth could not use his non-crimen falsi

convictions against him because Trial Counsel should have presented a

diminished capacity defense is unavailing. As we explained above, the record

contains no indication that Appellant was willing to concede criminal liability

at the time of trial, and Appellant therefore cannot fault Trial Counsel for failing

to raise a diminished capacity defense. Thus, had Appellant testified on his

own behalf at trial and introduced evidence of his good character, the

Commonwealth could have used his prior non-crimen falsi convictions against

him. See Murphy, 182 A.3d at 1008. Accordingly, the PCRA court likewise

did not err in denying Appellant relief on his second issue.

      Based on the foregoing, we conclude that the PCRA court did not err in

finding Appellant’s ineffective assistance of counsel claims meritless and

dismissing his PCRA petition.

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       Order affirmed.4

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/31/20




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4 On August 15, 2020, the Commonwealth filed an Application for Extension
of Time to File Brief – Second Request. Based upon our disposition of the
appeal, we deny the motion as moot.

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