J-S42001-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

BARBARA PECK

                            Appellant                  No. 393 WDA 2013


                 Appeal from the PCRA Order November 7, 2012
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0013737-2006


BEFORE: PANELLA, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                        FILED NOVEMBER 24, 2014

        Appellant, Barbara Peck, appeals from the order entered November 7,

2012, by the Honorable Kevin G. Sasinoski, Court of Common Pleas of

Allegheny County, which denied Peck’s Post Conviction Relief Act (PCRA)1

Petition.     Additionally, Appellant’s court-appointed counsel, Christy P.

Foreman, Esquire, has filed an application to withdraw as counsel.          After

careful review, we affirm the trial court’s order and grant Attorney

Foreman’s application to withdraw as counsel.

        A prior panel of this Court set forth the facts and procedural history of

this case.

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1
    42 PA.CONS.STAT.ANN. § 9541, et seq.
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           Appellant fatally shot her husband Russell Peck while he
     was sleeping. The following facts were adduced at the jury trial
     through the testimony of Detective Lawrence Carpico, neighbors
     to the Appellant’s residential home—Dan and Layla Weiss, and
     neighbors to her husband’s seasonal cottage—Robert Cimino and
     Shari Samter-Cimino, all of which corroborated Appellant’s
     confession.

           At trial, Detective Carp[]ico testified that Appellant
     confessed the following to him. Appellant and her husband were
     married for twenty years. The marriage started to deteriorate
     and Appellant asked him for a divorce. Her husband responded
     by telling Appellant “that she was welcome to leave at anytime
     but she wasn’t getting anything from the business.” N.T. Trial,
     8/3-4/09, at 139. [Appellant’s husband owned a construction
     business where Appellant worked]. On September 15, 2006,
     Appellant arrived home in the evening and read a book. When
     her husband came home, she went for a drive for a few hours,
     with the hope that when she returned, he would already be
     asleep. When she returned he was in fact sleeping.

            Appellant waited for a period of time and then got into bed
     with him. Three days prior to the incident, she placed a gun
     under their bed. Earlier that day she checked the gun “to ensure
     that it was still loaded. [Appellant] characterized her husband as
     being sneaky and said that she wanted to check the gun at that
     point to ensure that he hadn’t removed the bullets from the
     gun.” Id. at 142. She retrieved the gun that night sometime
     after she got into bed, pointed it to the “silhouette of his head”
     and fired. Id. at 143. Appellant got out of the bed and shot him
     a second and third time because she wanted to ensure that he
     was dead. A snoring sound was coming from him, like that of a
     wounded animal, so she closed the window so that no one would
     hear him. Appellant’s neighbor, Dan Weiss, testified that he
     heard a snoring sound coming from the residence.

            Detective Carpico testified that Appellant got into her car
     and left the scene. She stopped her car, walked ten to fifteen
     feet, and buried the gun under a log. She drove around for ten
     to twelve hours, and then traveled to a camp owned by her
     husband and sat in the car. Robert Cimino and Shari Samter-
     Cimino, who live at the camp all year, testified they noticed
     Appellant sitting in her car. Mr. Cimino approached Appellant
     first. Appellant told him that she killed her husband. Mr. Cimino
     called the police and Mrs. Cimino called for an ambulance

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     because Appellant took five to seven Xanax pills and collapsed.
     Appellant was first taken to the hospital to be treated for an
     overdose and was subsequently arrested by Detective Carp[]ico
     and his partner.

           Detective Carp[]ico testified that Appellant waived her
     Miranda rights and gave several confessions, one of which was
     recorded. He asked Appellant to describe her relationship with
     her husband, specifically, whether he was physically abusive.
     Appellant replied: “[H]ad he ever struck [me], he would have
     been dead a long time ago.” N.T. at 137. However, Appellant
     contended that he was emotionally abusive towards her, in the
     form of talking behind her back and humiliating her at their
     work. Appellant also told officers that she was forced to have
     several abortions, the last one in June 2006, because her
     husband did not want her to have his children. When detectives
     asked her why she did not leave him, Appellant responded that
     “she didn’t want to see him inflict this kind of evil on other
     people, and she felt like she was entitled to her portion of the
     business.” Id. at 147. Appellant did not testify at trial.

           After both parties rested at trial, defense counsel moved
     for the court to instruct the jury on the charge of voluntary
     manslaughter. The court denied his request and noted counsel’s
     “continuing objection.” Id. at 169. The jury was charged with
     whether the Commonwealth proved first or third-degree murder.

           On August 4, 2009, the jury found Appellant guilty of first-
     degree murder. She was sentenced on October 27, 2009 to life
     imprisonment without parole.

Commonwealth v. Peck, 2001 WDA 2009, slip op. at 1-5 (Pa. Super.,

March 11, 2011) (unpublished memorandum) (footnotes omitted).             On

appeal, this Court affirmed Appellant’s judgment of sentence, and the

Pennsylvania Supreme Court denied allocatur. See id.; Commonwealth v.

Peck, 27 A.3d 1015 (Pa. 2011) (Table).

     Appellant filed a timely pro se PCRA petition, and the PCRA court

appointed counsel. Appointed counsel filed a Turner/Finley no-merit letter

and requested to withdraw. The PCRA court granted counsel permission to

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withdraw and filed notice of its intent to dismiss Appellant’s PCRA petition.

On November 7, 2012, the PCRA court dismissed Appellant’s petition.

        Appellant filed a timely pro se appeal.                The PCRA court again

appointed counsel in response to this Court’s request to provide notification

of Appellant’s representation status.            Appointed counsel filed a concise

statement of errors complained of on appeal and the trial court filed a

responsive opinion.

        Preliminarily, we note that Appellant’s court-appointed counsel has

submitted an Anders2 brief, which is procedurally proper for counsel seeking

to withdraw on direct appeal. This is a collateral appeal. Pennsylvania law

requires counsel seeking to withdraw from representing a petitioner under

the PCRA to file a ‘no-merit’ letter pursuant to Commonwealth v. Turner,

544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213

(Pa. Super. 1988) (en banc).          See Commonwealth v. Karanicolas, 836

A.2d 940, 947 (Pa. Super. 2003).               However, this Court has held that,

“because an Anders brief provides greater protection to the defendant, we

may     accept   an    Anders     brief   in   lieu   of   a   Turner/Finley   letter.”

Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super.

2004).    Accordingly, we will now proceed to determine whether counsel’s




____________________________________________


2
    Anders v. California, 386 U.S. 738 (1967).



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motion to withdraw meets the criteria required under a Turner/Finley

analysis.

             Counsel petitioning to withdraw from PCRA representation
      must proceed ... under [Turner, supra and Finley, supra and]
      ... must review the case zealously. Turner/Finley counsel must
      then submit a “no-merit” letter to the trial court, or brief on
      appeal to this Court, detailing the nature and extent of counsel's
      diligent review of the case, listing the issues which petitioner
      wants to have reviewed, explaining why and how those issues
      lack merit, and requesting permission to withdraw.

            Counsel must also send to the petitioner: (1) a copy of the
      “no merit” letter/brief; (2) a copy of counsel's petition to
      withdraw; and (3) a statement advising petitioner of the right to
      proceed pro se or by new counsel.

                                    ***

             [W]here counsel submits a petition and no-merit letter that
      ... satisfy the technical demands of Turner/Finley, the court—
      trial court or this Court—must then conduct its own review of the
      merits of the case. If the court agrees with counsel that the
      claims are without merit, the court will permit counsel to
      withdraw and deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation

omitted).   See also Commonwealth v. Widgins, 29 A.3d 816, 817 n.2,

818-819 (Pa. Super. 2011).

      Here, counsel has substantially complied with the foregoing procedural

requirements. Accordingly, we will proceed to examine whether any of the

issues counsel raises on appeal are of merit:

      1. Whether trial counsel was ineffective for failing to investigate
         and present a battered woman defense?

      2. Whether trial counsel was ineffective for failing to investigate
         and prove a diminished capacity defense?



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      3. Whether trial counsel was ineffective for failing to “employ
         experts, i.e., investigators, pharmacologists, psychiatrists,
         previous records of documented abusive issues to prove to
         the court that they were available at the time of trial, or to
         ask for funding from the court?”

      4. Whether trial counsel was ineffective for failing to bring in
         family witness[es] that were willing to testify to the
         [Appellant’s] character and to the deteriorating marriage and
         other areas?

      5. Whether the trial court erred by failing to give a jury
         instruction on voluntary manslaughter.

      6. Whether the evidence was insufficient to support Appellant’s
         first degree murder conviction.

Anders Brief at 6.

Our standard of review is well-settled.

      When reviewing the propriety of an order granting or denying
      PCRA relief, this Court is limited to determining whether the
      evidence of record supports the determination of the PCRA court
      and whether the ruling is free of legal error. Great deference is
      granted to the findings of the PCRA court, and these findings will
      not be disturbed unless they have no support in the certified
      record.

Commonwealth v. Rachak, 62 A.3d 389, 391 (Pa. Super. 2012), appeal

denied, 67 A.3d 796 (Pa. 2013) (citations omitted).

      A PCRA petitioner is eligible for relief if the claim is cognizable under

the PCRA. See 42 Pa.C.S.A. § 9543. Cognizable claims include those that

allege ineffectiveness of counsel that undermined the truth-determining

process. See 42 Pa.C.S.A. § 9543(a)(2)(ii).

      Appellant asserts several instances in which she believes trial counsel

was ineffective. It is well-settled that “[a] criminal defendant has the right

to effective counsel during . . . trial.” Commonwealth v. Rathfon, 899

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A.2d 365, 369 (Pa. Super. 2006) (citation omitted). Further, counsel is

presumed effective, and an appellant bears the burden to prove otherwise.

See Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa. 2012).

      A PCRA petitioner must demonstrate that counsel’s performance was

deficient and that such deficiency prejudiced him. See Strickland v.

Washington, 466 U.S. 668, 687 (1984). Pennsylvania has further refined

the   Strickland test into    a three-prong inquiry.     An   appellant must

demonstrate that: (1) his underlying claim is of arguable merit; (2) counsel

had no reasonable strategic basis for his action or inaction; and (3) the

appellant suffered actual prejudice as a result. See Commonwealth v.

Pierce, 527 A.2d 973, 975 (Pa. 1987). A failure to satisfy any prong of the

Pierce test will require rejection of the claim. See Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014). Moreover, deference is given to the

PCRA court’s credibility determination if supported by the record. See

Commonwealth v. Medina, 92 A.3d 1210, 1214 (Pa. Super. 2014).

      Appellant first argues that trial counsel was ineffective for failing to

present a battered woman defense. “[E]xpert testimony regarding battered

woman syndrome ... is admissible as probative evidence of the defendant's

state of mind as it relates to a theory of self-defense.” Commonwealth v.

Miller, 634 A.2d 614, 621-622 (Pa. Super. 1993). “The syndrome does not

represent a defense to homicide in and of itself, but rather, is a type of

evidence which may be introduced on the question of the reasonable belief



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requirement of self-defense in cases which involve a history of abuse

between the victim and the defendant.” Id. at 622. The failure to present

such evidence does not constitute per se ineffectiveness. See id.

      Here, there is simply no evidence that Appellant suffered physical,

sexual or emotional abuse by her husband such that would rise to the level

of a battered spouse.       Appellant expressly denied that that she was

physically abused during her confession to Detective Carpico.       Appellant’s

first PCRA counsel, Scott Coffey, Esquire, notes in his Turner/Finley No-

Merit Letter, filed May 7, 2012, that although Appellant claimed she was

emotionally abused by her husband, psychiatrist Dr. Barbara Beadles

examined Appellant and determined that no psychiatric defenses or

conditions were applicable to Appellant’s case. See Turner/Finley No-Merit

letter, 5/7/12 at 7-8. As there was simply no history of abuse upon which to

sustain a theory of battered spouse syndrome, we cannot deem counsel to

be ineffective for failing to pursue a meritless claim.

      We reach the same conclusion as to Appellant’s claim that counsel was

ineffective for failing to present a diminished capacity defense.           “A

diminished capacity defense requires that a defendant establish he had a

mental defect at the time of a murder that affected his cognitive abilities of

deliberation and premeditation necessary to formulate specific intent to kill.”

Commonwealth v. Fears, 86 A.3d 795, 804 n.1 (Pa. 2014) (citation

omitted).   The record is devoid of any evidence to support a claim that


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Appellant suffered a mental defect at the time of the murder, and, in fact,

Dr. Beadle’s opinion that Appellant had no psychiatric conditions when she

killed her husband refutes such a claim.       Therefore, trial counsel was not

ineffective for failing to present a meritless defense.

      Appellant’s third claim that trial counsel was ineffective for failing to

present experts or introduce documents to prove a history of abuse is

similarly meritless and refuted by the record. As noted, Appellant expressly

denied a history of abuse and, contrary to Appellant’s assertions otherwise,

trial counsel did retain a psychiatrist who determined that no psychiatric

defenses were available. This claim fails.

      Appellant next argues that trial counsel was ineffective for failing to

call family witnesses who were willing to testify to her character and to the

deteriorating marriage.     Trial counsel will not be deemed ineffective for

failing to call a witness to testify unless it is demonstrated that:

      (1) the witness existed; (2) the witness was available; (3)
      counsel knew of, or should have known of the existence of the
      witness; (4) the witness was willing to testify for the defense;
      and (5) the absence of the testimony was so prejudicial to
      petitioner to have denied him or her a fair trial.

Commonwealth v. Brown, 18 A.3d 1147, 1160-1161 (Pa. Super. 2011)

(citation omitted), appeal denied, 611 Pa. 677, 29 A.3d 370 (2011).

      Instantly, Appellant does not establish the identity of any witnesses,

their availability at the time of trial, or whether trial counsel was informed of

the existence of these alleged witnesses. Appellant does not even set forth



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the substance of the witnesses’ testimony. Without this necessary evidence

we are unable to conclude that the “the absence of the testimony was so

prejudicial to petitioner to have denied him or her a fair trial.”        Brown,

supra.       As such, Appellant’s claim of ineffective assistance in this regard

fails.

         Lastly, we find that Appellant is not eligible for PCRA relief on her two

remaining claims on appeal.       To the extent Appellant claims that the trial

court erred by failing to give a jury instruction on voluntary manslaughter,

this issue has been previously litigated, and thus, is not cognizable under the

PCRA. See 42 Pa.C.S. § 9543(a)(3).          “A claim is previously litigated if the

highest appellate court in which the petitioner could have had review as a

matter of right has ruled on the merits of the issue.” Commonwealth v.

Daniels, --- A.3d ---, ---, 2014 WL 5505024 at *6 (Pa. Super. filed Oct. 30,

2014). Appellant raised this claim on direct appeal, and a panel of this Court

determined that the trial court’s decision not to issue a voluntary

manslaughter jury instruction was not in error.         See Peck, supra, 2001

WDA 2009, slip op. at 5-9.

         Appellant is similarly ineligible for PCRA relief on her claim that the

evidence was insufficient to support her first-degree murder conviction. An

allegation is waived “if the petitioner could have raised it but failed to do so

before trial, at trial, on appeal or in a prior state postconviction proceeding.”

See 42 Pa.C.S. § 9544(b).            As Appellant could have challenged the




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sufficiency of the evidence to support her conviction on direct appeal, but did

not do so, we find that this claim waived.

      Based on the foregoing, and after conducting our own independent

review of the record, we agree with counsel’s conclusion that Appellant’s

appeal lacks merit.   Accordingly, we affirm the order of the PCRA court

dismissing the petition for post-conviction relief and grant counsel’s

application to withdraw.

      Order affirmed. Petition to withdraw as counsel is granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/24/2014




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