J-S78040-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
FRANCIS TIMOTHY PLAZA,                     :
                                           :
                   Appellant               :           No. 318 MDA 2014

           Appeal from the PCRA Order entered on February 11, 2014
                 in the Court of Common Pleas of York County,
                Criminal Division, No. CP-67-CR-0005283-2009

BEFORE: GANTMAN, P.J., JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED FEBRUARY 19, 2015

        Francis Timothy Plaza (“Plaza”) appeals from the Order denying his

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1

We affirm.

        In a prior appeal, this Court summarized the history underlying the

instant appeal as follows:

              On July 25, 2009, Plaza shot his wife, Michelle Plaza (“the
        victim”), six times, killing her in their bedroom. After the
        shooting, Plaza told his oldest son, Christopher, that he “did
        something bad,” that he “shot his mother,” and to call 9-1-1.
        Christopher called 9-1-1 and attempted CPR to resuscitate the
        victim, and Plaza instructed him to stop, saying, “just let her
        there, let her there.”

             Plaza was arrested and charged with criminal homicide.
        [See 18 Pa.C.S.A. § 2501.] At trial, [Plaza] testified [that] he
        was upset with the victim on the night in question because she
        was constantly on her computer and did not spend time with

1
    42 Pa.C.S.A. §§ 9541-9546.
J-S78040-14


     him. He unplugged the modem in an attempt to get her off the
     computer, and she started filling out what he believed may have
     been an application for a house or an apartment. He went into
     the bedroom to figure out what he should do. He began to tidy
     up his dresser drawers as he contemplated leaving for New York
     for the weekend.

            While straightening up his dresser drawers, he saw his
     loaded Taurus double-action revolver in his drawer, which he
     testified he had there for protection purposes. Plaza said that he
     realized he should put the gun in his gun safe in the event he left
     town for the weekend, and took it out of the drawer in its
     holster. Prior to getting to the safe, the victim walked into the
     room and said she was going to shower. Plaza stated that he
     quickly hid the gun under the comforter, as he did not want the
     victim to see the gun in his hands after they had been arguing.
     He testified that he planned to put the gun in the safe when the
     victim got into the shower.

            He asked the victim to sit down, and they engaged in a
     lengthy conversation, with the victim sitting at the head of the
     bed, and Plaza at the foot of the bed. Plaza stated that the
     victim told him that she was leaving him, that her life had been
     a lie, and that she did not love him anymore, laughing as he
     cried. He further stated that the victim pulled her hand away
     from his when he reached out to touch her, threatening to call
     the police. Plaza testified that this was the first he had heard
     that his wife was planning to leave him, and he became enraged.
     He lay across the foot of the bed crying, and his hand brushed
     the gun. According to Plaza, the next thing he knew, he was
     holding the gun in his hand, and his wife was dead. He stated
     he did not remember shooting her. Although trained in CPR, he
     testified that he did not attempt to resuscitate his wife, as he did
     not see her breathing, and thus knew his efforts would be futile.

Commonwealth v. Plaza, 34 A.3d 242 (Pa. Super. 2012), unpublished

memorandum at 1-3.

     After a jury trial, Plaza was convicted of first degree murder, and

sentenced to life in prison.     This Court affirmed Plaza’s judgment of




                                 -2-
J-S78040-14


sentence, after which the Pennsylvania Supreme Court denied allowance of

appeal. See id., appeal denied, 2012 Pa. LEXIS 2631.

      On October 9, 2013, Plaza timely filed a Petition for relief pursuant to

the PCRA.     The PCRA court appointed counsel for Plaza, who filed an

Amended PCRA Petition. On December 13, 2013, the Commonwealth filed a

Motion to dismiss the PCRA Petition. After an evidentiary hearing, the PCRA

court denied Plaza’s Petition.    Thereafter, Plaza timely filed a Notice of

Appeal, and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of

matters complained of on appeal.

      Plaza now presents the following claims for our review:

      1. Whether the [PCRA] Court erred in denying relief on the issue
         that [trial counsel] was ineffective for failing to call Dr. Paul
         DiKun [“Dr. DiKun”2] to testify regarding [Plaza’s] state of
         mind at the time of the incident?

      2. Whether the [PCRA] court erred in denying relief on the issue
         that [direct appeal counsel] was ineffective in not preserving
         these issues on appeal?

Brief for Appellant at 4.

      Plaza first claims that his trial counsel rendered ineffective assistance

by failing to call Dr. DiKun as a witness at trial. Id. at 8. Plaza states that

his only defense for shooting his wife “was that he acted in the heat of

passion.” Id. at 9. Plaza contends that his trial counsel rendered ineffective

assistance by not calling Dr. DiKun to help bolster his claim. Id. According


2
  Dr. DiKun had prepared an expert report stating his belief that Plaza had
acted in the heat of passion.


                                  -3-
J-S78040-14


to Plaza, Dr. DiKun would have provided a medical explanation of Plaza’s

state of mind, and that he had a higher chance of success if Dr. DiKun would

have been called upon to testify. Id. Plaza contends that his trial counsel

failed to have Dr. DiKun testify “due to his belief that the Commonwealth

had a better expert.” Id.

     We review the findings of a PCRA court “to see if they are supported

by the record and free from legal error.” Commonwealth v. Reyes, 870

A.2d 888, 893 n.2 (Pa. 2005). On appeal,

     [t]his Court’s scope of review is limited to the findings of the
     PCRA court and the evidence on the record of the PCRA court’s
     hearing, viewed in the light most favorable to the prevailing
     party, in this case, the Commonwealth.              See, e.g.,
     Commonwealth v. Duffey, 585 Pa. 493, 889 A.2d 56, 61 (Pa.
     2005); Commonwealth v. Meadius, 582 Pa. 174, 870 A.2d
     802 (Pa. 2005). In addition, “[t]he level of deference to the
     hearing judge may vary depending upon whether the decision
     involved matters of credibility or matters of applying the
     governing law to the facts as so determined.” Commonwealth
     v. Reaves, 592 Pa. 134, 923 A.2d 1119, 1124 (Pa. 2007)
     (citations omitted).

Commonwealth v. Fahy, 959 A.2d 312, 316 (Pa. 2008).

     To be eligible for relief based on a claim of ineffective assistance of

counsel, a PCRA petitioner must demonstrate, by a preponderance of the

evidence, that (1) the underlying claim is of arguable merit; (2) no

reasonable basis existed for counsel’s action or omission; and (3) there is a

reasonable probability that the result of the proceeding would have been

different absent such error. Commonwealth v. Steele, 961 A.2d 786, 796

(Pa. 2008). With regard to the second, i.e., the “reasonable basis” prong,


                                 -4-
J-S78040-14


this Court will conclude that counsel’s chosen strategy lacked a reasonable

basis only if the appellant proves that “an alternative not chosen offered a

potential for success substantially greater than the course actually pursued.”

Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006) (citation

omitted).    To establish the third prong, i.e., prejudice, the appellant must

show that there is a reasonable probability that the outcome of the

proceedings would have been different but for counsel’s action or inaction.

Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008).

      In its Opinion, the PCRA court addressed Plaza’s claim and concluded

that it lacks merit. See PCRA Court Opinion, 6/9/14, at 3. The PCRA court’s

findings    are   supported   in   the   record,   and   its   reasoning   is   sound.

Accordingly, we affirm on the basis of the PCRA court’s Opinion with regard

to this claim. See id.

      Plaza next claims that his prior counsel, Anthony Tambourino, Esquire

(“Attorney Tambourino”), rendered ineffective assistance by not preserving

his ineffectiveness claim related to Dr. DiKun.          Brief for Appellant at 10.

Plaza argues that “as Dr. DiKun should have been called to testify, Attorney

Tambourino was ineffective for withdrawing that issue prior to the first PCRA

hearing and not preserving that issue on appeal.”        Id.

      Our review discloses no error or abuse of discretion in the PCRA court’s

rejection of Plaza’s claim regarding Dr. DiKun.                As the PCRA court

determined, trial counsel had a reasonable basis for his failure to present Dr.



                                     -5-
J-S78040-14


DiKun as a witness. PCRA Court Opinion, 6/9/14, at 3. Because we affirm

the PCRA court’s rejection of the underlying claim, Plaza suffered no

prejudice resulting from Attorney Tambourino’s failure to raise this claim on

appeal.   As a result, we cannot grant Plaza relief on this claim.       See

Commonwealth v. Reaves, 923 A.2d 1119, 1128 n.10 (Pa. 2007)

(recognizing that the failure to satisfy any prong of the ineffectiveness test

will require rejection of the claim); see also Commonwealth v. Dennis,

950 A.2d at 954 (stating that to establish prejudice, the appellant must

show that there is a reasonable probability that the outcome of the

proceedings would have been different but for counsel’s action or inaction);

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/19/2015




                                 -6-
                     (                                     c·;        Circulated 01/13/2015 03:46 PM




    IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA


COMMONWEALTH OF PENNSYLVANIA                                  NO. CR-5283-2009

                    v.

FRANCIS T. PLAZA


       APPEARANCES:

              THOMAS L. KEARNEY, Esq.
              For the Commonwealth

              SEAMUS D. DUBBS, Esq.
              For the Defendant/Appellant


       OPINION PURSUANT TO RULE OF APPELLATE PROCEDURE 1925(a)

       On February 19, 2014 Appellant filed a Notice of Appeal from this court's order of

February 11,2014, which denied Appellant's Amended Petition for Relief under the Post

Conviction Collateral Relief Act (PCRA). On February 24,2014 we directed Appellant

to file a Concise Statement of Errors pursuant to Rule 1925(b), which was in fact filed

on March 17,2014. We now issue the following Opinion:

                         FACTS AND PROCEDURAL HISTORY

       On July 25, 2009 Appellant shot and killed his wife, Michelle Plaza, in the

bedroom of their home. The factual background of this matter is detailed in this court's

opinion issued March 9, 2011 and the Superior Court of Pennsylvania's opinion issued

November 9,2011 (137 MDA 2011), both of which are incorporate herein by reference.

       On August 18, 2010, following a three day jury trial, Appellant was found guilty of
                                                                           Circulated 01/13/2015 03:46 PM




first degree murder (18 Pa.C.S. § 2502(a)). Appellant was sentenced to the mandatory

term of life imprisonment on September 30, 2010. Following the denial of his post-

sentence motion on December 20, 2010, Appellant appealed to the Superior Court of

Pennsylvania, which affirmed our decision by way of opinion issued November 9, 2011

(137 MDA 2011). On December 3,2012 the Supreme Court denied Appellant's Petition

for Allowance of Appeal. Appellant then filed a Motion for Post Conviction Collateral

Relief on October 9, 2013, to which the Commonwealth responded with a Motion for

Dismissal filed December 13, 2013. Appellant's PCRA claims were denied on February

11, 2014 following an evidentiary hearing, and it is from that denial Appellant now seeks

relief.

                                          DISCUSSION

          Appellant raises the following two issues on appeal: (i) whether this court erred

in denying relief on the claim that Attorney Joseph was ineffective for failing to call Dr.

Paul DiKun to testify regarding Defendant's state of mind at the time of the incident; and

(ii) whether this court erred in denying relief on the claim that Attorney Tambourino was

ineffective in not preserving issues on appeal or including them on the appeal.

          Appellant is eligible for post conviction relief only if counsel's act or omission "so

undermined the truth-determining process that no reliable adjudication of guilt or

innocence could have taken place." 72 Pa.C.S. 9543(a)(2)(ii). Commonwealth v.

Pierce, 527 A.2d 973 (Pa. 1987) requires Appellant establish both inadequate

performance and prejudice in order to be eligible for relief. Under the three-prong Pierce

test, Appellant must demonstrate each of the following: (i) the issue underlying the claim


                                                 2
"                        (                                                  Circulated 01/13/2015 03:46 PM




    of ineffectiveness has arguable merit, (ii) defense counsel's act or omission was not

    reasonably designed to advance the interests of the Appellant, and (iii) there is a

    reasonable probability that, but for counsel's unprofessional errors, the result of the

    proceeding would have been different. Id. As to the second prong of the Pierce test, it

    is important to note defense counsel is accorded broad discretion in determining trial

    tactics and strategy. Commonwealth      v. Thomas, 744 A.2d 713,717 (Pa. 2000).

           Appellant argues Attorney Joseph was ineffective for failing to call Dr. Paul DiKun

    to testify regarding Defendant's state of mind at the time of the killing. This argument

    lacks merit, as Attorney Joseph's decision was reasonably designed to advance

    Appellant's interests, and Appellant was not prejudiced by said decision. At the hearing

    on the post-sentence motion, Attorney Joseph testified that he received reports from the

    defense's expert as well as ,the Commonwealth's expert, and he felt the reports were

    extremely damaging to Appellant. N. T. at 20-22. He was also concerned the

    Commonwealth's expert had loftier credentials than the defense's expert. Further, the

    record reveals Appellant agreed to this trial strategy. N. T. at 20. Trial counsel thus had

    a reasonable basis for the decision not to call Dr. DiKun to testify.

           Appellant also argues Attorney Tambourino was ineffective in not preserving

    issues on appeal or including them on the appeal. Appellant does not specify the

    issues to which he is referring; however, they presumably relate to several

    ineffectiveness allegations raised in Appellant's PCRA petition filed February 11, 2014.

    The claim regarding the failure to call Dr. DiKun has been addressed above. Two

    additional ineffectiveness claims allege failure to advance a provocation or heat or


                                                  3
                                                                        Circulated 01/13/2015 03:46 PM




passion defense; however, the record clearly demonstrates this defense was vigorously

argued by trial counsel and put before the jury. Yet another claim of ineffectiveness

relates to trial counsel's purported failure to offer mitigating evidence at the time of

sentencing. First degree murder carries a mandatory life sentence, and no amount of

mitigating evidence would change this fact.

       The remaining ineffectiveness claims relate to trial counsel's alleged failure to

secure phone records and to object to statements concerning a 911 call placed by

Appellant's son. Even if we were to assume for the sake of argument that trial counsel

lacked a reasonable basis for such decisions, Appellant's argument still fails because

Appellant did not suffer any prejudice. Rather, trial counsel's decisions arguably

benefited Appellant's cause. In any event, the evidence that Appellant murdered his

wife with the specific intent to kill was so overwhelming that the alleged ineffectiveness

of trial counsel had no impact on the outcome of this case. As the Superior Court of

Pennsylvania pointed out in this very matter, there is no question Appellant is the

person responsible for killing the victim (he admitted as much to his son and to this

Court), and Appellant's decision to shoot the victim five (5) times in the chest, a vital

part of the body, establishes both malice and specific intent to kill the victim. Further,

the forty-five (45) minute conversation Appellant had with his wife just prior to murdering

her provided a sufficient cooling off period to discredit Appellant's heat of passion

defense. In light of these undisputed facts, it is clear the alleged ineffectiveness of

counsel had no impact on the outcome of the case.




                                              4
.
'                        (.                                             Circulated 01/13/2015 03:46 PM




                                        CONCLUSION

          This Court has thoroughly reviewed all of the relevant pleadings and transcripts

    in this matter. We rely on and incorporate those matters, including the within Opinion as

    its 1925(a) Opinion in the above-captioned matter.




    Date: June 2, 2014




                                               5
