J-S58007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL LASHAWN MCCARY                     :
                                               :
                       Appellant               :   No. 101 WDA 2019

           Appeal from the PCRA Order Entered December 20, 2018
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0003770-2008


BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.

MEMORANDUM BY PANELLA, P.J.:                          FILED JANUARY 03, 2020

       Michael Lashawn McCary appeals from the December 20, 2018, order

entered in the Allegheny County Court of Common Pleas, which dismissed his

first petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-9546. McCary seeks relief from a term of life imprisonment,

imposed on April 20, 2009, after the trial court found him guilty of first-degree

murder1 in the stabbing death of Kenneth Waller (“the victim”). On appeal, he

claims trial counsel was ineffective by failing to investigate McCary’s

psychiatric history, procure copies of his medical records, obtain an opinion

from an expert in the field of forensic psychiatry, and present a diminished

capacity defense at trial. Based on the following, we affirm.


____________________________________________


1   18 Pa.C.S.A. § 2502(a).
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       The underlying facts are not pertinent to this appeal; therefore, we need

not recite them in detail herein. We briefly note that, on May 27, 2005, McCary

approached to the victim and another individual walking down the street on

Penn Avenue, Pittsburgh, Pennsylvania. An argument ensued and McCary

stabbed the victim in the neck.2 The other individual identified McCary as the

perpetrator.

       Pertinent to this appeal, McCary had twice been committed to Western

Psychiatric Institute and Clinic (“WPIC”), both of which occurred within one

month of the incident at issue.3 Trial counsel requested the records three days

before trial began on January 15, 2009, but he did not receive the documents

until January 20, 2009. One day later, which was the last day of the bench

trial, the court found McCary guilty of first-degree murder. The court then

sentenced McCary to the mandatory term of life imprisonment without the

possibility of parole. This Court affirmed his judgment of sentence on

November 21, 2011,4 and the Pennsylvania Supreme Court denied his petition



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2   The victim succumbed to his injuries on December 22, 2005.

3 The first was an involuntary commitment that occurred from April 21, 2005
to April 28, 2005. The second was a voluntary commitment from May 23,
2005, to May 26, 2005. See Amended Petition for Relied Pursuant to the Post
Conviction Relief Act, 11/9/2015, at Appendix C1-13 and E1-11. The discharge
of the later commitment was against medical advice and occurred within 24
hours of the assault.

4 McCary raised one claim on direct appeal – that the evidence was insufficient
to establish that he was perpetrator in question.

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for allowance of appeal on May 14, 2012. See Commonwealth v. McCary,

38 A.3d 927, 837 WDA 2009 (Pa. Super., filed Nov. 21, 2011) (unpublished

memorandum), appeal denied, 44 A.3d 1161 (Pa. 2012).

       McCary filed this, his first, pro se, PCRA petition on July 24, 2012.

Counsel was subsequently appointed and filed an amended petition on

November 9, 2015, alleging trial counsel was ineffective for failing to

investigate McCary’s psychiatric history, procure copies of his medical records,

obtain an opinion from an expert in the field, and request a competency

hearing.5 The Commonwealth filed a response to the petition on June 3, 2016,

requesting an independent mental health evaluation. The court granted the

Commonwealth’s request, and McCary underwent a forensic psychological

evaluation by Bruce A. Wright, M.D.

       The PCRA court held a two-day evidentiary hearing beginning on

December 11, 2018.          Both Doctors Applegate and Wright as well as trial

counsel testified at the hearing. Two days later, the court denied McCary’s

petition. This timely appeal followed.

       “Our standard of review for issues arising from the denial of PCRA relief

is well-settled. We must determine whether the PCRA court’s ruling is

supported by the record and free of legal error.” Commonwealth v. Presley,


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5 McCary attached an affidavit from Alice A. Applegate, Ph.D., a psychologist,
who opined that McCary exhibited a diminished capacity at the time of the
offense. See Amended Petition for Relief Pursuant to the Post-Conviction
Relief Act, 11/9/2015, at Affidavit of Dr. Alice A. Applegate, 10/8/2015.

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193 A.3d 436, 442 (Pa. Super. 2018) (citation omitted). In doing so, we read

the record in the light most favorable to the prevailing party. See

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012). If this

review reveals support for the PCRA court’s credibility determinations and

other factual findings, we may not disturb them. See Commonwealth v.

Henkel, 90 A.3d 16, 20 (Pa. Super. 2014). We, however, afford no deference

to the PCRA court’s legal conclusions. See id.

      McCary’s sole argument on appeal is that trial counsel was ineffective

by failing to investigate his psychiatric history, procure copies of his medical

records, obtain an opinion from an expert in the field of forensic psychiatry,

and present a diminished capacity defense at trial. See Appellant’s Brief at

10. First, McCary contends the record on appeal does not support the PCRA

court’s factual findings and conclusions of law. McCary states that because

trial counsel did not have his medical records, counsel was not able to fully

explain the charges pending against him, and could not provide him with the

necessary information and advice so he could make an informed decision

regarding possible strategies and outcomes.      Id. at 12. Moreover, McCary

alleges:

      Since trial counsel did not receive the records until the day before
      the trial concluded on January 20th, he could not, as he testified,
      be “sure” he “would have read through” all these records and then
      discussed with [McCary] how they could impact their strategy
      because once trial counsel proceeded to trial without these
      records, the evidence of [McCary]’s commitments to WPIC could
      no longer be used to support and present a diminished capacity
      defense.

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Id. at 13 (citations omitted). Additionally, he asserts that even though counsel

testified McCary did not want to admit culpability, “this issue becomes moot

because … trial counsel made an intervening decision to proceed to trial before

receiving, reviewing, and having an expert review, evaluate, and render an

opinion.” Id.

      Next, McCary complains counsel’s performance constituted structural

error, in which counsel’s error “occurred prior to trial and affected the

complete framework of the trial.” Id. at 14. Moreover, he states counsel

“failed to protect [McCary]’s interests by ignoring the fact that he had not yet

received [the medical records], by not requesting a continuance, and by

intentionally proceeding to trial without them, thereby forever precluding

[McCary] from asserting a diminished capacity defense.” Id. at 16-17.

      Third, McCary argues counsel’s alleged ineffectiveness constituted

prejudice per se “because of the severity of trial counsel’s deficient

performance resulted in a violation” of his constitutional right to present a

defense, and therefore, prejudice must be presumed. Id. at 17. He maintains

the decision to proceed to trial before receiving the psychiatric records did not

constitute an informed decision. Id. at 19. Further, he states:

      [E]ven though trial counsel testified that [McCary] did not want to
      admit culpability and the strategy at trial was “to discredit the
      Commonwealth’s version of events[,”] this issue becomes moot
      because trial counsel made an intervening uninformed decision to
      proceed to trial before receiving, reviewing, and having an expert
      review and evaluate [McCary] to determine if he suffered a
      diminished capacity at the time of the homicide. Without records

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       of [McCary]’s psychiatric history, trial counsel could have no idea
       of their content or the impact they could have at trial. And, without
       these records, trial counsel would not be able to discuss with
       [McCary], or provide him with a realistic assessment of, the
       impact the records would or could have on their trial strategy.

Id. at 20 (citations omitted).

       All of McCary’s arguments are premised upon a theory that trial counsel

was ineffective. We presume counsel’s effectiveness, and an appellant bears

the burden of proving otherwise. See Commonwealth v. Brown, 161 A.3d

960, 965 (Pa. Super. 2017). “In order for [an a]ppellant to prevail on a claim

of ineffective assistance of counsel, he must show, by a preponderance of the

evidence, ineffective assistance of counsel which so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place.” Presley, 193 A.3d at 442 (citation omitted).

       To establish ineffectiveness of counsel, a PCRA petitioner must plead

and prove: his underlying legal claim has arguable merit; counsel’s actions

lacked any reasonable basis; and counsel’s actions prejudiced him. See

Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011).6 Failure to satisfy

any prong of the ineffectiveness test requires dismissal of the claim. See

Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa. Super. 2004).

“Arguable merit exists when the factual statements are accurate and could

establish cause for relief. Whether the facts rise to the level of arguable merit



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

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is a legal determination.” Commonwealth v. Barnett, 121 A.3d 534, 540

(Pa. Super. 2015) (citations and internal quotation marks omitted). “A

defendant raising a claim of ineffective assistance of counsel is required to

show actual prejudice; that is, that counsel’s ineffectiveness was of such

magnitude that it could have reasonably had an adverse effect on the outcome

of the proceedings.” Commonwealth v. Spotz, 84 A.3d 294, 315 (Pa. 2014)

(citation omitted).

      Moreover, “[c]ounsel’s strategic decision to seek acquittal rather than

pursue a diminished capacity defense does not constitute ineffective

assistance if there is a reasonable basis for the strategy chosen.”

Commonwealth v. Spotz, 896 A.2d 1191, 1218 (Pa. 2006), (citation

omitted). “Diminished capacity is an extremely limited defense, which requires

extensive psychiatric testimony establishing a defendant suffered from one or

more mental disorders which prevented him from formulating the specific

intent to kill.” Commonwealth v. Cuevas, 832 A.2d 388, 393 (Pa. 2003)

(citation omitted).

      Because the defense is directed exclusively at the negation of
      specific intent, for evidence to be admissible it must necessarily
      put into question the criminal defendant’s very ability to form the
      intent to kill. Thus, “[e]vidence 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 capacity defense. Furthermore, diagnosis
      with a personality disorder does not suffice to establish diminished
      capacity.” 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.”
      Commonwealth v. Spotz, 610 Pa. 17, 144, 18 A.3d 244, 319

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     (2011) (citing Commonwealth v. Rainey, 593 Pa. 67, 928 A.2d
     215, 237 (2007) (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) (some citations

omitted). Furthermore, the mere fact that a chosen trial strategy ultimately

proved unsuccessful does not render it unreasonable. See Spotz, 896 A.2d

at1235.

     Here, the PCRA court found the following:

            While there is no dispute between the parties as to the fact
     that McCary has a long history of psychiatric issues, the question
     of competency for trial was not presented by his counsel because
     his counsel believed that McCary was competent and was
     cooperative with him in the preparation of his case and the
     potential defenses that might be available to him. McCary’s
     counsel, Owen Seman, testified that he reviewed the charge of
     criminal homicide with McCary and explained the various degrees
     of the charge of criminal homicide and their respective penalties.
     Seman testified that McCary understood the explanation as to the
     gradation of the charge of criminal homicide and was insistent that
     he proceed to trial because he did not commit the homicide.
     McCary believed that he was misidentified and that he would be
     vindicated in a trial. McCary repeatedly told Seman that he did not
     commit this homicide. When Seman became aware of the fact that
     McCary had been committed by his sister to Western Psychiatric
     Institute and Clinic (hereinafter “WPIC”), he requested those
     records to have an opportunity to review them in light of the plan
     that he and McCary had agreed upon. In reviewing those records,
     he noted McCary was admitted because he had become
     aggressive toward his relatives and threatened to harm himself.
     Although McCary left WPIC against medical advice, there was no
     notation in the records that he was incompetent. As noted by Dr.
     Wright, had the examining physicians believed that McCary was
     incompetent to make this decision, they could have involuntarily
     committed him.


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           In Commonwealth v. Blakeney, 108 A.3d 739, 752 (Pa.
     Super. 2014), the Pennsylvania Supreme Court set forth the
     standard that it used to make a determination as to whether or
     not an individual is incompetent:

        A defendant is presumed to be competent to stand trial, and
        the burden is on the defendant to prove by a preponderance
        of the evidence that he is incompetent to do so.
        [Commonwealth v.] Brown, 872 A.2d [1139, 1156 (Pa.
        2005)]. This Court has recognized that the competency
        standard for waiving the right to counsel is the same as, and
        not higher than, the competency standard for standing trial.
        Spotz, 18 A.3d at 266. If a court finds a defendant
        incompetent to waive the right to counsel, then the court
        must also conclude that the defendant is incompetent to
        stand trial. Id. Competency to stand trial is measured by
        the relationship between counsel and client: To be deemed
        competent, the defendant needs to have the ability to
        consult with counsel with a reasonable degree of
        understanding, in order to participate in his defense, and he
        must be able to understand the nature or object of the
        proceedings against him. See Commonwealth v. Flor, 606
        Pa. 384, 998 A.2d 606, 617-18 (2010). The focus is properly
        on the defendant’s mental capacity, i.e., whether he has the
        ability to understand the proceedings. Spotz, 18 A.3d at
        266.

     Seman’s testimony was that McCary had the ability to consult with
     him with a reasonable degree of understanding of the charges filed
     against him and he participated in formulating his defense and he
     understood the nature and object of these particular proceedings.
     As Seman testified, he fully explained to McCary the charge of
     criminal homicide and the various possible results and their
     penalties. Seman also testified that he suggested to McCary that
     the charge of voluntary manslaughter might be appropriate if he
     would acknowledge that he was responsible for the death of the
     victim, however, McCary was adamant about the fact that he did
     not commit this homicide. In light of McCary’s position that he was
     not the murderer, Seman was left with the defense upon which
     they both agreed, that being, that McCary was being misidentified
     as that individual.

          Further acknowledging McCary’s understanding of the
     proceedings was his testimony at the time of the Grazier hearing.

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     McCary advised this Court that he wanted new counsel because
     he did not know enough about the law to adequately represent
     himself and that he wanted a court-appointed lawyer. He believed
     that Mr. Seman was “a hell of a lawyer and a hell of a guy”,
     however, he was busy and he wanted someone else to handle his
     appeal. He was cognizant of the fact that if his issues were not set
     forth in the concise statement of matters complained of on appeal
     that they would be waived. Seman further testified that in
     hindsight he reviewed the fact that McCary had some psychiatric
     issues and it might have been helpful in formulating a defense to
     the charge of criminal homicide, however, it would have been of
     no benefit to him in light of McCary’s insistence that he did not
     commit this homicide. Based upon all of the information that he
     knew at that time and McCary’s insistence that he was not the
     murderer, he followed the course of action that both he and
     McCary had agreed upon.

            At the time of the hearing on McCary’s petition for post-
     conviction relief, both Alice Applegate, Ph.D. and Bruce Wright,
     M.D., testified as to their views as to McCary’s competency at the
     time of his trial and at the time of his hearing on his petition for
     post-conviction relief. In addition to having their testimony, this
     Court also had the benefit of Dr. Applegate’s [55]-page report and
     Dr. Wright’s [21]-page report. Both Dr. Applegate and Dr. Wright
     were questioned as to whether or not McCary was competent to
     engage in the hearing on the petition for post-conviction relief
     prior to any discussion taking place as to his competency to
     proceed to trial in 2009. Dr. Applegate maintained that based
     upon her testing of McCary and her interaction with him, that he
     was incompetent not only for the post-conviction proceeding but,
     also, for trial. Dr. Wright on the other hand, maintained that
     McCary was competent and as observed by other professionals he
     was manipulative in how he handled certain things, including as
     to whether or not he could proceed with his case. It was Dr.
     Applegate’s opinion that McCary was not competent to participate
     in his ongoing legal defense despite his positive working
     relationship with his current lawyer. Dr. Wright was of the opinion
     that McCary has a history of manipulative behavior and
     demonstrated that manipulative behavior when he engaged in a
     deliberate attempt to appear more impaired than he was. Dr.
     Wright reviewed Dr. Applegate’s report and her testing and
     indicated that although he would agree with Dr. Applegate if that
     were the only records upon which he had to rely, the other
     psychiatric records including his progress reports at SCI Rockford,

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     told him that McCary was competent and understood the legal
     process and was able to assist his counsel in preparing for trial.

            When Dr. Wright was asked about whether or not McCary
     was competent to stand trial in 2009, he disagreed with Dr.
     Applegate who maintained that he was not and Dr. Wright
     suggested that McCary’s manipulative behavior to him in
     submitting a third personality disorder, whereas his responses to
     the questions that were asked by this Court in his waiver of a right
     to a jury trial and his responses after he was found guilty indicate
     that he was fully aware of the nature of the proceeding in which
     he was involved and that his inquiries were appropriate and
     insightful for his particular position.

           In reviewing the voluminous testimony presented by both
     Dr. Applegate and Dr. Wright, and their reports, together with the
     other medical records that were submitted, it was clear that
     McCary was fully aware of the nature of the proceeding in which
     he was involved and could clearly and adequately communicate
     with his counsel and assist his counsel in the trial of his case. His
     counsel advised him of the nature of the charge, advised him of
     the possible penalties with respect to each level of the charge of
     criminal homicide, and formulated a defense with McCary based
     upon his vehement assertion that he did not commit his homicide.
     A review of the record in this case clearly demonstrates that there
     was no need for a competency hearing to be held prior to the time
     of McCary’s trial because he was fully able to understand the
     proceedings and assist his counsel in the handling of those
     proceedings.

           The second claim of ineffectiveness is predicated upon
     Seman’s failure to interpose diminished capacity testimony. The
     defendant did not testify at the time of trial nor did he call any
     witnesses. In order for him to avail himself of the diminished
     capacity defense, he had to acknowledge the fact that he was
     responsible for the death of his victim. In Commonwealth v.
     Hutchinson, 25 A.3d 277, 312 (Pa. 2011), the Pennsylvania
     Supreme Court acknowledged when the defense of diminished
     capacity would be available to a defendant.

              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

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        based upon an inability to formulate the specific intent to
        kill. Commonwealth v. C. Williams, 602 Pa. 360, 980
        A.2d 510, 527 (2009); [C]ommonwealth v. [G]ibson, 597
        PA. 402, 951 [A].2d 1110, 1131 (2008); Commonwealth
        v. Spotz, 587 Pa. 1, 896 A.2d 1191, 1218 (2006) (“Absent
        an admission from [the defendant] that he had shot and
        killed [the victim], trial 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, 605 Pa. 137, 988
        A.2d 618, 632 (2010).

     The import of the defense of diminished capacity is that evidence
     of someone’s diminished capacity will entitle a fact-finder to come
     to the conclusion that the individual lacked the specific intent to
     kill somebody thereby negating the imposition of a first-degree
     murder verdict. When an individual maintains that he did not
     commit the crime, there is no ability to interpose the defense of
     diminished capacity.

           McCary’s defense was that he did not commit the homicide
     and, accordingly, evidence of diminished capacity was irrelevant
     and inadmissible in this trial and his counsel could not have been
     ineffective for failing to introduce that inadmissible evidence.

PCRA Court Opinion, 4/18/2018, at 7-12. We conclude that the trial court’s

opinion properly disposes of the issue in this case. Accordingly, we affirm on

the basis of that opinion, while adding the following comments.

     The December 2018 PCRA hearing included a battle of expert witnesses,

with the experts presenting conflicting opinions on whether McCary was

competent at the time of his trial. The Honorable David R. Cashman gave

greater weight to Dr. Wright, the Commonwealth’s expert witness, particularly

to the expert’s testimony that McCary was competent at the time of trial and

exhibited manipulative behavior with respect to the progression of his case.


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Id. at 10.7 Judge Cashman, sitting as fact-finder, was free to do so, and we

are bound by this determination. See Commonwealth v. Puksar, 951 A.2d

267, 276 (Pa. 2008) (“The expert testimony offered at trial by both sides

amounted to a battle of the experts, with the [fact-finder] as the ultimate

referee based upon its assessment of the credibility of the experts”).

       Second, the court found trial counsel’s testimony credible, and that he

demonstrated reasonable trial strategy in pursuing an acquittal. See Spotz,

896 A.2d at 1218. Trial counsel testified: (1) he met with McCary at least six

times; (2) he relied upon McCary’s steadfastness on not being the perpetrator

and McCary’s unwillingness to pursue other trial strategies like voluntary

manslaughter; (3) he was not told until later on that McCary had been

committed WPIC; and (4) he got along well with McCary, McCary participated

in his defense, and nothing jumped out about McCary that gave him pause.8

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7 It also merits mention that Dr. Applegate did not opine that McCary lacked
the ability to form the specific intent to kill in her 2015 and 2018 reports
regarding McCary, but did testify to that for the first time at the PCRA hearing.
See N.T., 12/11/2018-12/12/2018, at 166-167.

8  When asked what prompted counsel to request the medical record, he
stated:

       I’m not sure, to be perfectly honest, as I think back on it. I don’t
       know if Mr. McCary made a mention to me that right before this -
       - because had I known that these records existed, I would have
       asked for them a while before. But when I requested these, I
       remember something came up that -- I don’t know if it was in
       conversation that me and Mr. McCary talked about it, and he said,
       oh, I had just been released from Western Psych, something along



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See    N.T.,   12/11/2018-12/12/2018,          at   217,   220-221,   and   225-226.

Accordingly, we conclude the PCRA court’s determinations are supported by

the evidence of the record, and affirm the court’s determination that McCary

did not meet his burden in demonstrating trial counsel’s ineffectiveness in

failing to investigate his psychiatric history and pursue a diminished capacity

defense.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/3/2020




____________________________________________


       those lines, and I made the request to see if that was accurate,
       and it turns out it was.

N.T., 12/11/2018-12/12/2018, at 221.

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