J-S41030-14

NON-PRECEDENTIAL DECISION              SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                     Appellee             :
                                          :
            v.                            :
                                          :
WILLIAM J. WARD,                          :
                                          :
                     Appellant            :   No. 3454 EDA 2013

              Appeal from the PCRA Order November 15, 2013,
                  Court of Common Pleas, Lehigh County,
              Criminal Division at No. CP-39-CR-0003343-2011

BEFORE: BOWES, DONOHUE and MUNDY, JJ.

MEMORANDUM BY DONOHUE, J.:                             FILED JULY 29, 2014



November 15, 2013 by the Court of Common Pleas, Lehigh County,

dismissing his amended petition for relief pursuant to the Post-Conviction

                                              -46.   For the reasons set forth

herein, we affirm.

      On June 17, 2011, Crysta

Bethlehem Police Department to report that her friend and co-worker, Trisha



at 27. Van Gorden stated that it was unusual for the Victim to not come to

work and further provided that the Victim told her to call the police if she did

not show up to work because Ward had threatened to kill her. Id. at 27-28.

The Bethlehem Police Department dispatched two officers, Officer Trevezo
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and Officer Rodr                                                        Id. at

29.

      The officers did not receive an answer when they knocked on the



                                  Id. at 29.   Officer Rodriguez found an open

window and looked inside.        Id.    Ward charged at him while swinging an

unidentified object. Id. at 30. Officer Rodriguez retreated from the window.

N.T., 10/8/12, at 30.

                                                                      Id. The

officers then established a perimeter around the house and contacted the

                                                           Id. at 30-31.   The

ERT entered the house after an extended stand-off. Id. at 31. Upon the



with pepper spray. Id. The ERT took Ward into custody following extensive

efforts to apprehend him, including shooting him with less than lethal bean

bag rounds, employing gas canisters, and tasering him. Id. at 31-32.




10/8/12,   at   32.     Police   offi

dismembered body in the trash bags.            Id.

charged with criminal homicide, eight counts of aggravated assault, four




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PCRA Court Opinion, 11/15/13, at 3.

      On October 8, 2012, Ward pled guilty but mentally ill to the charge of

murder in the first degree.   N.T., 10/8/12, at 7, 18.   Ward waived a pre-

sentence investigation report and elected to be sentenced that day. Id. at

47. The trial court sentenced Ward on the same date to life imprisonment

without parole. Id. at 67.

      On March 20, 2013, Ward filed a pro se PCRA petition. N.T., 8/13/13,

at 4. Attorney Robert Long was appointed on March 26, 2013 and filed an

amended PCRA petition on May 24, 2013, raising two claims: (1) that trial

counsel, Attorney Earl Supplee, provided ineffective assistance of counsel,

which unlawfully induced him to plead guilty, and (2) that his guilty plea was

unlawfully induced because it was not made knowingly, intelligently, or

voluntarily, due to his mental illness. PCRA Court Opinion, 11/15/13, at 8.

On August 8, 2013, an evidentiary hearing was held on the amended PCRA



amended PCRA petition, finding no merit to his allegations. Id. at 8. Ward

timely filed a notice of appeal on December 9, 2013.

      On appeal, Ward raises two issues for our determination:

      1.    Did the [PCRA] court err in failing to find trial
            counsel ineffective for the following reasons:

            A. Failing to discuss psychiatric reports with [Ward]
               prior to his plea;



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            B. Failing to introduce psychiatric evidence to show
               that [Ward] lacked the intent required for a
               murder in the first degree conviction or plea;

            C. Advising [Ward] to plead guilty to murder in the
               first degree when he lacked the intent required for
               a murder in the first degree conviction or plea.

     2.     Did the PCRA Court err by failing to find that

            induced for the above stated reasons?



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

record supports the PCRA court's findings of fact, and whether the PCRA

court's determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005), appeal denied, 42 A.3d 1059 (2012)). A

PCRA petitioner must establish the claim by a preponderance of the

evidence.     Commonwealth v. Gibson, 925 A.2d 167, 169 (2007).

Credibility determinations made by the PCRA court are binding on this Court

where     there   is   support   in   the   record   for   the   determination.

Commonwealth v. Timchak, 69 A.3d 765, 769 (Pa. Super. 2013) (citing

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)).

     For his first issue on appeal, Ward claims that Attorney Supplee



evidence to show that [Ward] lacked the intent required for murder in the




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first degree conviction or plea and advising [Ward] to plead guilty to murder

in the first degree when he lacked the intent required for a murder in the



        The test for ineffectiveness of counsel requires the petitioner to meet a

three-



reasonable strategic basis for proceeding as he did; and (3) the petitioner

                                                Commonwealth v. Clark, 961

A.2d 80, 85 (2008). Failure to meet any one of the three prongs is fatal to

                                        Id.

        With respect to the second prong of this test, our Supreme Court has

held:


             constitutionally effective if he chose a particular
             course of conduct that had some reasonable basis

             matters of strategy and tactics are concerned, a
             finding that a chosen strategy lacked a reasonable
             basis is not warranted unless it can be concluded
             that an alternative not chosen offered a potential for
             success substantially greater than the course actually
             pursued.

Commonwealth v. Charleston, __ A.3d __, 2014 WL 2557575, at *5 (Pa.

Super. June 6, 2014) (citing Commonwealth v. Spotz, 84 A.3d 294, 311-

12 (Pa. 2014)).




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      At the PCRA hearing, Attorney Supplee provided extensive testimony

regarding the strategy he and Ward agreed upon. Attorney Supplee testified

that he met with Ward 10 to 11 times during the course of his

representation, and discussed possible defenses with Ward. N.T., 8/13/13,

at 39-41. Attorney Supplee and Ward initially determined that an insanity

defense would be the most likely defense to succeed.        Id.   As a result,

Attorney Supplee employed Dr. Gordon, a psychologist, and Dr. Rushing, a

psychiatrist, to examine Ward and provide reports. Id. at 41-43. Attorney

Supplee testified that he discussed each report with Ward and that in his

opinion, Ward understood what he was talking about when he discussed the

reports with him. Id. at 43-44. Attorney Supplee testified that each of the

reports supported an insanity defense.       Id. at 56.    However, Attorney

Supplee advised Ward to plead guilty but mentally ill to murder in the first

degree, rather than go to trial and introduce evidence that Ward lacked the

necessary intent for murder in the first degree for the following reasons.

      First, Attorney Supplee testified that there was a possibility that the




disease of the mind that rendered him incapable of knowing the nature and

                                                                    Id. at 23.

This report did not support an insanity defense.       N.T., 8/13/13, at 56.




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reports. Id. at 45, 47. There were no indications of psychosis or mental

health issues that were beneficial to an insanity defense in those reports.

Id.

mental health from 1999 until 2011 when he killed the Victim. Id. at 48-49.

These reports and analyses did not contain any information that would have

supported his insanity defense.    Id.

concern regarding the psychological reports, the Commonwealth provided a

reciprocal witness list that included 30 witnesses.      Id. at 45.    Attorney

Supplee expressed concern that the witnesses would rebut an insanity

defense. N.T., 8/13/13, at 48.

      Second, in addition to potential problems with the psychological

reports, Attorney Supplee testified that he advised Ward to plead guilty but

mentally ill because of his concerns about going to trial. Included among his

concerns was the possibility that the jury could presume specific intent to kill

in this instance because Ward used a deadly weapon on a vital portion of the

                          Id.



of the potential that these actions wou



                                                                      Id. at 52-

53.




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      According to Attorney Supplee, Ward also had concerns about going to

trial. Ward conveyed to Attorney Supplee that he did not want to go to trial.

Id.                                                                       -live

                               Id.

have the guilty but mentally ill designation as opposed to just straight guilty

                                                               Id. at 47, 62.



upon his discussions with Ward and consideration of the factors discussed

above, Attorney Supplee determined that it would be best for Ward to plead

guilty but mentally ill to murder in the first degree.

      Finally, Attorney Supplee testified that he discussed other potential

defenses with Ward, including a diminished third degree defense. Id. at 46.



charges, which could potentially lead to an additional 25 to 50 years of

imprisonment to run consecutive to the sentence on third degree murder.

Id. at 46, 64.    This would be akin to a life sentence.    Id. at 64.   Thus,

instead of risking a conviction on first degree murder with no mental health,

in addition to the aggravated assault charges, Attorney Supplee did not

recommend pursuing this defense and instead, advised Ward to plead guilty

but mentally ill. Id. at 46, 60.

      The PCRA court determined that Attorney Supplee provided competent

advice to Ward and that Ward voluntarily entered the guilty but mentally ill



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plea. PCRA Court Opinion, 11/15/13, at 9. The record supports the PCRA



proceeding as he did and therefore provided effective assistance to Ward.

As a result, Ward has not satisfied the second prong of the ineffectiveness of

counsel test. Failure to meet any prong of the ineffectiveness of counsel test

is fatal to a claim of ineffectiveness. Clark, 961 A.2d at 85. Therefore, it is

unnecessary to address the remaining two prongs.         We affirm the PCRA

              of relief based on a claim of ineffectiveness of counsel.

      For his second issue on appeal, Ward alleges that his guilty plea was



ineffectiveness.   Given our disposition that Attorney Supplee provided




      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/29/2014




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