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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


  ISRAEL POLANCO-CANO

                    Appellant             :   No. 1598 MDA 2018
          Appeal from the PCRA Order Entered September 11, 2018
   In the Court of Common Pleas of Lancaster County Criminal Division at
                      No(s): CP-36-CR-0005802-2015
BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                               FILED JULY 17, 2019

      Israel Polanco-Cano appeals from the order that denied his petition filed

pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.

      We previously offered the following summary of the facts that underlie

Appellant's convictions.

            On October 2, 2015, officers from the Lancaster City Bureau
      of Police were dispatched to a residence where a disturbance had
      been reported. When Officer Steven Alexander arrived on the
      scene, he located [Sonia Rodriguez] who had multiple stab
      wounds to her head, ear, neck, forearms, chest and shoulders.
      Another officer on the scene located the suspect, later identified
      as [Appellant], with blood -covered arms and lacerations to his
      right hand. The victim identified [Appellant] as her assailant,
      claiming that he had stabbed her with a knife almost [twenty-five]
      times when he refused to leave her friend's apartment at her
      request. The police searched [Appellant] and found seven small
      bags of heroin on his person. The victim underwent emergency
      surgery for the severe stab wounds to her body.

Commonwealth v. Polanco-Cano, 175 A.3d 1105 (Pa.Super. 2017).
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      Appellant was charged with inter alia, attempted homicide and

aggravated assault. On November 2, 2016, Appellant proceeded to a jury trial

and was found guilty.      Sentencing was deferred so that a pre -sentence

investigation ("PSI") report could be prepared.

      On February 6, 2017, the trial court sentenced Appellant to sixteen to

forty years of imprisonment for attempted homicide and a concurrent six to

twelve years of incarceration for aggravated assault. Appellant did not file a

post -sentence motion, but did file a direct appeal challenging his sentence.

On August 22, 2017, we affirmed Appellant's convictions, but vacated
Appellant's judgment of sentence on the aggravated assault charge, since it

should have merged with attempted homicide for sentencing purposes. Id.

      Appellant filed a timely, pro se PCRA petition. Appointed counsel filed

an amended PCRA petition challenging trial counsel's failure to request an

involuntary intoxication jury instruction and to argue that defense at trial. The

Commonwealth responded with its answer.             The PCRA court held an
evidentiary hearing, where Appellant's trial counsel testified. Appellant and

the Commonwealth submitted post -hearing briefs, and the court denied the

petition.   This timely appeal followed.   Both Appellant and the PCRA court

complied with Pa.R.A.P. 1925.

      In his brief, Appellant raises the following issue for our review:

"Whether the court below erred in denying post -conviction relief where trial




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counsel failed to request an instruction on involuntary intoxication and failed

to argue the defense in closing." Appellant's brief at 4.

      We begin with the principles pertinent to our review. "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. Johnson, 179 A.3d 1153, 1156

(Pa.Super. 2018) (internal quotation marks omitted).        Further, "[i]t is an
appellant's burden to persuade us that the PCRA court erred and that relief is

due." Commonwealth v. Miner, 44 A.3d 684, 688 (Pa.Super. 2012).

      Appellant's claims relate to allegations that trial counsel rendered
ineffective assistance.   Counsel is presumed to be effective, and a PCRA

petitioner bears the burden of proving otherwise.           Commonwealth v.
Becker, 192 A.3d 106, 112 (Pa.Super. 2018). To do so, the petitioner must

plead and prove (1) the legal claim underlying his ineffectiveness claim has

arguable merit; (2) counsel's decision to act (or not) lacked a reasonable basis

designed to effectuate the petitioner's interests; and (3) prejudice resulted.

Id. The failure to establish any prong is fatal to the claim. Id. at 113.

      First, Appellant contends that trial counsel was ineffective in failing to

request an involuntary intoxication jury instruction. The PCRA court dismissed

this claim as meritless. We discern no abuse of discretion for the reasons that

follow.




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        Appellant has not provided any Pennsylvania authority that suggests

that his claim has arguable merit. In Pennsylvania, neither our courts nor our

legislature has recognized the doctrine of involuntary intoxication, except in

cases    involving    driving   under   the   influence   ("DUI")   charges.   See

Commonwealth v. DuPont, 860 A.2d 525 (Pa.Super. 2004) (finding that an

appellant could not demonstrate arguable merit for failure to pursue a defense

of involuntary intoxication because no appellate decision under Pennsylvania

law has affirmatively acknowledged the existence of such a defense);
Commonwealth v. Kuhn, 475 A.2d 103, 110 (Pa.Super. 1984) ("No
Pennsylvania case has ever held that the defense of involuntary intoxication

is a viable one.").

        In his brief, Appellant concedes that Pennsylvania courts have only

allowed an involuntary intoxication defense instruction in DUI cases, but
nonetheless argues that counsel was ineffective for not asking for one,
because "there is no logical reason why it should not apply to other factual

scenarios" based on Commonwealth v. Collins, 810 A.2d 698 (Pa.Super.
2002). Appellant's brief at 10. In Collins, we considered whether the trial

court gave an improper involuntary intoxication instruction in a DUI case.

Collins, supra at 700. We stated that it was not clear whether such a defense

was even recognized in Pennsylvania, although we did not find error in the

trial court's jury instruction.    Id. at 700-01. Importantly, the involuntary
intoxication defense standard jury instruction at issue in Collins specifically


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states that it is only applicable to DUI offenses.      See Pa.S.S.J.I. (Crim.)

8.308(C)(1)-(3). Therefore, the case upon which petitioner relies does not

lend support to his claim that involuntary intoxication is a recognized defense

in Pennsylvania.    At most, he has shown that such a defense would be
warranted in a DUI case, not in an attempted murder case.

      Assuming arguendo that the involuntary intoxication defense would

have applied in this case, the record does not support its issuance.           In

Pennsylvania, it   is   well -settled that jury instructions regarding specific

defenses and offenses are not warranted unless there is evidence to support

such instructions. Commonwealth v. Washington, 692 A.2d 1024, 1028
(Pa. 1997). In his brief, Appellant relies solely on his own trial testimony to

allege that he was "unknowingly drugged," and that the drugs made him
"crazy and assaultive," such that the attack "wasn't his fault" and an
involuntary intoxication instruction was warranted.     Appellant's brief at 13.

The PCRA court found that Appellant's reliance on his own "self-serving
testimony," without any corroboration, was fatal to his claim.       PCRA Court

Opinion, 9/11/18, at 7. The record supports the PCRA court's determination.

      At trial, the victim testified that she observed Appellant place crack
cocaine on the table and cut it up with a knife that he had in his pocket, before

placing it in a glass tube and smoking it. N.T. Trial, 11/2/16, at 105-07. She

also saw Appellant smoke K2, while drinking alcohol. Id. Physical evidence

corroborated her testimony, since police discovered a knife on the footpath


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where Appellant was standing and lab results indicated that crack cocaine was

present in Appellant's system. N.T. Trial, 11/3/16, at 137-38, 152. When

Appellant testified, he initially denied consuming any drugs or alcohol. Id. at

210, 214-15. However, once confronted with his own lab results and the fact

that police found seven small bags of heroin on his person, Appellant admitted

to consuming both alcohol and drugs that night.     Id. at 214-15. Appellant
explained that the crack cocaine may have gotten into his system when he

inhaled a cigarette that someone gave him, but that he did not know how he

came to have heroin in his pockets. Id. at 214, 218-19.

      Appellant has provided no direct evidence that would support a defense

of involuntary intoxication, other than his own conflicting statements, which

the PCRA court found to be incredible. Trial Court Opinion, 9/11/18, at 7.

Even if Appellant's testimony had been believed, it was not enough to support

an    involuntary     intoxication    instruction    without     corroboration.

Commonwealth v. Smith, 831 A.2d 636, 637 (Pa.Super. 2003) (finding a

defendant's testimony alone insufficient to justify an involuntary intoxication

defense without expert testimony to establish the effect that the combination

of drugs would have had on the user). At most, Appellant's testimony lends

itself to a voluntary or diminished capacity defense, which was also not an




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available defense in this case.' As such, we find no error with the PCRA court's

determination that, even if trial counsel had requested the involuntary
intoxication instruction, it would have been improper to read it to the jury.
Trial Court Opinion, 9/11/18, at 7.      As Appellant has failed to establish

arguable merit or prejudice, no relief is due on this issue.

      Next, Appellant claims that trial counsel was ineffective for failing to

argue an involuntary intoxication defense in his closing argument. The PCRA

court addressed Appellant's contention as follows.

             Based upon the totality of the record, the court further finds
      that defense counsel had a reasonable basis in the chosen defense
      strategy at trial. At the evidentiary hearing held relative to this
      post -conviction matter, [Appellant's] counsel testified that
      multiple defenses were considered and [counsel] felt that under
      the facts, not being able to substantiate with any expert testimony
      the ingestion of any drugs, either voluntary or involuntary, that
      self-defense was the strongest position. As the affirmative
      defense of involuntary intoxication has never been recognized by
      the [c]ourts of this Commonwealth as applicable to offenses other
      than [DUI], any decision by trial counsel to pursue such an
      affirmative defense would be lacking in sound judgment.
      Additionally, it must be recognized that trial counsel's chosen
      strategy to pursue a justification defense incorporated the totality
      of the attendant circumstances, the lack of any scientific evidence,
      and the discussions that counsel had with the defendant prior to
      the commencement of trial. Stated another way, trial counsel


1- The applicability of the voluntary intoxication defense in an attempted
homicide was addressed in Commonwealth v. Williams, 730 A.2d 507 (Pa.
1999). In Williams, a defendant filed a PCRA petition claiming ineffectiveness
for counsel's failure to investigate and locate witnesses to his voluntary
inebriation as a defense. In rejecting the defendant's argument, the Court
reasoned that a voluntary intoxication defense is only allowed when it reduces
murder from a higher degree to a lower degree of murder. Id. at 511 (citing
to 18 Pa.C.S. § 308). Since attempted murder cannot be mitigated to a lower
degree of attempted murder, it found the defense to be inapplicable. Id.
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      credibly testified that the defendant never told counsel prior to
      trial that he had been drugged, but, instead, told counsel that he
      had willingly used cocaine and alcohol while in the home with the
      victim prior to the alleged offense. In response to the court's
      inquiry, trial counsel testified that prior to trial he had not felt that
      [he] had any kind of reliable or credible evidence of involuntary
      intoxication and did not expect to have any evidence presented
      that would have gone to the involuntary intoxication.
      Accordingly[,] counsel cannot be deemed as ineffective for failing
      to anticipate that [Appellant] would present testimony under
      cross-examination at trial, which was facially inconsistent with the
      discussions he had with counsel prior to trial and with the
      testimony he offered on direct examination.

PCRA Court Opinion, 9/11/18, at 8-9 (citations and quotation marks omitted).

      We discern no basis to disturb the PCRA court's determination.              The

record supports its recitation of the facts. See N.T. PCRA Hearing, 5/3/18, at

10-12, 18 (trial counsel testifying that he felt that self-defense was the
strongest theory, as Appellant told him that he voluntarily consumed drugs

and alcohol and his physical injuries supported a self-defense argument).

Counsel's decision      was reasonably designed to effectuate Appellant's

interests. Accordingly, no relief is due.

      Appellant has not met his burden of convincing this Court that the PCRA

court's rulings were the product of an abuse of discretion or an error of law

warranting relief from this Court. See Miner, supra at 688. Therefore, we
affirm the order denying his petition.

      Order affirmed.




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Judgment Entered.




  seph D. Seletyn,
Prothonotary


Date: 07/17/2019




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