J-S31023-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                        Appellee         :
                                         :
            v.                           :
                                         :
LAMONT FULTON,                           :
                                         :
                        Appellant        :      No. 2168 EDA 2013


            Appeal from the PCRA Order Entered July 11, 2013,
           In the Court of Common Pleas of Philadelphia County,
            Criminal Division, at No. CP-51-CR-0413241-2002.


BEFORE: BOWES, SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED JULY 30, 2014

      Appellant, Lamont Fulton, appeals from the order entered on July 11,

2013, that denied his petition filed pursuant to the Post Conviction Relief Act

                                -9546. We affirm.

      Following a bench trial, which was held on March 8, 2006, Appellant

was found guilty but mentally ill of first-degree murder and guilty of

                                                   On May 8, 2006, the trial

court sentenced Appellant to a term of life imprisonment without the

possibility of parole on the murder conviction and a concurrent term of two

and one-half to five years of incarceration for the PIC conviction. Appellant

filed a direct appeal to this Court, and in a memorandum filed on November
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Commonwealth v. Fulton, 1535 EDA 2006, 944 A.2d 791 (Pa. Super.

November 16, 2007) (unpublished memorandum). Appellant did not pursue

an appeal in the Pennsylvania Supreme Court.

      On August 11, 2008, Appellant filed a PCRA petition seeking the

reinstatement of his right to file a petition for allowance of appeal with the

Pennsylvania Supreme Court. Counsel was appointed, and on December 18,



appeal in the Supreme Court.      On August 11, 2010, the Supreme Court

                              Commonwealth v. Fulton, 3 A.3d 670 (Pa.

2010).

      On September 17, 2010, Appellant filed a pro se PCRA petition. The

PCRA court appointed counsel, and Appellant filed an amended PCRA petition

on May 9, 2012. On May 3, 2013, pursuant to Pa.R.Crim.P. 907, the PCRA

notified Appellant of its intent to dismiss the PCRA petition without a



filed on July 11, 2013. On July 29, 2013, Appellant filed a timely appeal.

      On appeal, Appellant raises the following issue:

      Whether the PCRA Court erred by denying appellant PCRA relief
      for ineffective assistance of counsel because appellant was
      suffering from a serious mental illness at the time of the offense
      and counsel failed to pursue a claim of diminished capacity.




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      Our standard of review of an order denying PCRA relief is whether the



                                        Commonwealth v. Phillips, 31 A.3d

317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877 A.2d



unless there is no support for the findings in the certified record. Id. (citing

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001)).

      When considering an allegation of ineffective assistance of counsel,

counsel is presumed to have provided effective representation unless the

PCRA petitioner pleads and proves that:        (1) the underlying claim is of

arguable merit; (2) counsel had no reasonable basis for his or her conduct;

and   (3)

Commonwealth v. Pierce, 527 A.2d 973, 975-

to meet the prejudice prong of the ineffectiveness standard, a defendant

must show that there is a reasonable probability that but for the act or

omission in question the outcome of the proceeding would have been

            Commonwealth v. Wallace, 724 A.2d 916, 921 (Pa. 1999). A

claim of ineffective assistance of counsel will fail if the petitioner does not

meet any of the three prongs.      Commonwealth v. Williams, 863 A.2d

505, 513 (Pa. 2004) (quoting Commonwealth v. Rush, 838 A.2d 651, 656

(Pa. 2003)).




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      When a defendant asserts a diminished capacity defense, he is

attempting to prove that he was incapable of forming the specific intent to

kill, and if he successfully proves that he could not form the specific intent to

kill, first degree murder is mitigated in gradation to third degree murder.

Commonwealth v. Legg, 711 A.2d 430, 433 (Pa. 1998).              Therefore, the

defendant must admit criminal culpability, but seek only to reduce the

degree of guilt. Id. (citations omitted). However, diminished capacity is an

extremely limited defense. Id.



to prese

PCRA court concluded that this issue was meritless, and contrary to



diminished capacity defense. Trial Court Opinion, 10/15/13, at 2. The PCRA



prison mental health records, and the competency evaluation performed by



                                                                 Id. at 3 (citing

N.T. 3/8/06, pg. 109).       The PCRA court found that trial counsel both



argued that his mental illness prevented Appellant from possessing the

specific intent to kill.   Id.   The PCRA court stated that the trial court




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concluded that Appellant was able to form the specific intent to kill.   Id.

Ultimately, the PCRA court determined that trial counsel had pursued a

diminished capacity defense, and therefore, Appellant was entitled to no

relief.1 We agree.

       The record reveals that trial counsel pursued a diminished capacity

defense and provi

mental health evaluations, diagnoses, opinions, and medical records. N.T.,

Trial, 3/8/06, at 108-110. Moreover, trial counsel argued that, should the

trial court find Appellant guilty, in light of A

which are supported by the aforementioned documents, the conviction

should only be for third-

Id. at 160-164.      For these reasons, we agree with the PCRA court and



1
    In its opinion, the PCRA court provided an alternative basis for denying

previously litigated on direct appeal. PCRA Court Opinion, 10/15/13, at 3.
On direct appeal, Appellant argued that the trial court erred in entering a
verdict of guilty but mentally ill on the charge of first degree murder.
Fulton, 1535 EDA 2006, 944 A.2d 791 (unpublished memorandum at *7).
Appellant based this claim on his schizophrenia diagnosis and averred that
his mental illness prevented him from forming the specific intent to kill and
the first-degree murder conviction should have been graded as murder in
the third degree. Id. However, in his PCRA petition, Appellant alleged that
trial counsel was ineffective for failing to pursue a diminished capacity
defense. While the arguments contain related terms, we conclude that the
issue presented here is separate from that presented on direct appeal, and
we decline to conclude that the issue was previously litigated.



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conclude that

failed to raise diminished capacity defense. We discern no error in the PCRA



     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/30/2014




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