J-S51037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

JOSHUA HERDER,

                            Appellant                      No. 317 EDA 2015


                  Appeal from the PCRA Order January 26, 2015
              in the Court of Common Pleas of Philadelphia County
               Criminal Division at Nos.: CP-51-CR-0007152-2008
                            CP-51-CR-0007157-2008


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED SEPTEMBER 15, 2015

        Appellant, Joshua Herder, appeals from the order of January 26, 2015,

which dismissed, following a hearing, his first, counseled petition brought

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.

On appeal, Appellant claims he received ineffective assistance of trial

counsel. We affirm.

        We take the underlying facts and procedural history in this matter

from our review of the certified record.

        On October 17, 2007, Appellant, while residing at a psychiatric halfway

house,     stabbed    his   roommate,      Robert   Kitchens,   to   death. 1   (See

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Commonwealth’s Brief, at 2; see also N.T. Trial; 3/23/09, at 25-28).

Appellant maintained that he acted in self-defense because, after refusing to

engage in a homosexual relationship with Kitchens, Kitchens attacked him

with a knife and attempted to assault him. (See Commonwealth’s Brief, at

3; see also N.T. Trial, 3/23/09, at 25-28).

      On December 7, 2007, while incarcerated at the Philadelphia Industrial

Correctional Center, awaiting trial on Kitchens’ murder, Appellant strangled

his cellmate, Charles Kirkland.          (See N.T. Trial, 3/19/09, at 57-59; N.T.

Trial, 3/23/09, at 29-33).           Appellant claimed he acted in self-defense

because Kirkland had been trying to involve him in a homosexual

relationship and attempted to assault him that evening.          (See N.T. Trial,

3/19/09, at 57-58; see also N.T. Trial, 3/23/09, at 29-33).

      On March 5, 2009, after Dr. John O’Brien found Appellant competent

to stand trial, Appellant waived his right to a jury trial in return for the

Commonwealth agreeing not to seek the death penalty.                  (See N.T.

Preliminary Hearing, 3/05/09, at 10-12). On March 23, 2009, following trial,

                       _______________________
(Footnote Continued)
1
  The trial transcript[s] pertaining to the murder of Kitchens are not included
in the certified record. In an effort to obtain them, we contacted the trial
court, who was unable to locate them. This Court has clearly stated that it is
Appellant’s responsibility to ensure that the certified record contains all
documents necessary to ensure that we are able to review his claims. See
Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008); Pa.R.A.P.
1926; Pa.R.A.P. 1931.




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the court found Appellant guilty of two counts each of murder in the first

degree, and of possessing an instrument of crime. (See N.T. Trial, 3/23/09,

at 46). The trial court immediately sentenced Appellant to two consecutive

terms of incarceration of life without parole; it did not impose any sentence

on the remaining charges. (See id. at 47). Appellant did not file a direct

appeal.

      On December 24, 2009, Appellant, acting pro se, filed the instant,

timely PCRA petition. Following multiple changes of counsel, on September

11,   2014,   counsel   filed   a   second   amended   PCRA   petition.    The

Commonwealth filed a motion to dismiss on October 2, 2014.

      A PCRA hearing took place on January 26, 2015.          At that hearing,

Appellant called Greg Blender, an attorney from the Philadelphia Public

Defenders’ Mental Health Unit, as a witness.       (See N.T. PCRA Hearing,

1/26/15, at 5). Attorney Blender was involved in the pre-trial proceedings

but did not represent Appellant at trial. (See id. at 6-7, 15). Appellant did

not call any of the three attorneys who represented him at trial as witnesses.

       Attorney Blender testified that they elected not to prepare a guilty but

mentally ill defense because he believed that it was “worse than a straight

guilty plea.” (Id. at 9; see also id. at 8-9). However, he stated that they

believed they had a viable insanity defense but could not present it because

Appellant refused to consider it.     (See id. at 10-15).   Instead, Appellant

insisted on claiming self-defense, which counsel believed had no chance of


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succeeding.   (See id. at 11-12, 15, 17, 21-22, 25-26).        Attorney Blender

explained that they did not request a formal pre-trial psychological

examination because: (1) they believed that Appellant was competent to

stand trial; and (2) they would have to turn over that report to the

Commonwealth prior to trial and they were concerned about possible

damaging information contained in it.      (See id. at 19-20).    He noted that

two mental health professionals employed by the Philadelphia Public

Defenders’ Office did do informal evaluations of Appellant and that the Court

Mental Health Unit Psychiatrist, Dr. O’Brien, found Appellant competent to

stand trial. (See id. at 13, 19, 23-24).

      Appellant testified on his own behalf at the PCRA hearing and claimed

that counsel told him that he would get a maximum of fifteen years of

incarceration. (See id. at 26, 28). He acknowledged that counsel did speak

with him about an insanity defense.        (See id.).   When cross-examined,

Appellant agreed that he did not want to go to a mental hospital but wanted

to be exonerated. (See id. at 29).

      Immediately following the evidentiary hearing, the PCRA court denied

Appellant’s petition.   The instant, timely appeal followed.     On February 8,

2015, Appellant filed a timely statement of errors complained of on appeal.

See Pa.R.A.P. 1925(b).      On March 25, 2015, the PCRA court issued an

opinion. See Pa.R.A.P. 1925(a).

      On appeal, Appellant raises the following question for our review:


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      I.   Were trial counsel ineffective for failing to seek a pretrial
      psychological examination [for] Appellant because Appellant was
      known to be mentally ill?

(Appellant’s Brief, at 4).

      Here, Appellant claims he received ineffective assistance of trial

counsel. (See id. at 8-15). It is long settled that “[o]ur standard of review

from the grant or denial of post-conviction relief is limited to examining

whether the PCRA court’s determination is supported by the evidence of

record and whether it is free of legal error. We will not disturb findings that

are supported by the record.” Commonwealth v. Ousley, 21 A.3d 1238,

1242 (Pa. Super. 2011), appeal denied, 30 A.3d 487 (Pa. 2011) (citations

omitted). “The 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.”       Commonwealth v.

Duffey, 889 A.2d 56, 61 (Pa. 2005) (citation omitted).         Further, to be

eligible for relief pursuant to the PCRA, Appellant must establish that his

conviction or sentence resulted from one or more of the enumerated errors

or defects found in Section § 9543(a)(2). He must also establish that the

issues raised in the PCRA petition have not been previously litigated or

waived. See 42 Pa.C.S.A. § 9543(a)(3). An allegation of error “is waived if

the petitioner could have raised it but failed to do so before trial, at trial,

during unitary review, on appeal or in a prior state postconviction

proceeding.” 42 Pa.C.S.A. § 9544(b).


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      Appellant specifically contends that counsel was ineffective for not

seeking a pre-trial psychological evaluation of him, which would have

supported an insanity defense and, instead, presenting a non-meritorious

claim of self-defense. (See Appellant’s Brief, at 8).

      Counsel is presumed effective, and an appellant bears the burden to

prove otherwise.   See Commonwealth v. McDermitt, 66 A.3d 810, 813

(Pa. Super. 2013). The test for ineffective assistance of counsel is the same

under both the Federal and Pennsylvania Constitutions. See Strickland v.

Washington, 466 U.S. 668, 687 (1984); Commonwealth v. Jones, 815

A.2d 598, 611 (Pa. 2002).     An appellant must demonstrate that:       (1) his

underlying claim is of arguable merit; (2) the particular course of conduct

pursued by counsel did not have some reasonable basis designed to

effectuate his interests; and (3) but for counsel’s ineffectiveness, there is a

reasonable probability that the outcome of the proceedings would have been

different. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001),

abrogated on other grounds by Commonwealth v. Grant, 813 A.2d 726

(Pa. 2002). “A failure to satisfy any prong of the test for ineffectiveness will

require rejection of the claim.” Jones, supra at 611 (citation omitted).

      Initially we note that in order to be found not guilty by reason of

insanity, a defendant must prove:

      that, at the time of the commission of the offense, the actor was
      laboring under such a defect of reason, from disease of the
      mind, as not to know the nature and quality of the act he was


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      doing or, if the actor did know the quality of the act, that he did
      not know that what he was doing was wrong.

18 Pa.C.S.A. § 315(b).    Further, when the defendant does not present a

defense of insanity, he cannot present evidence in support of finding him

guilty but mentally ill. See Commonwealth v. Henry, 569 A.2d 929, 935-

36 (Pa. 1990), cert. denied, 499 U.S. 931 (1991), abrogated on other

grounds by Commonwealth v. Wilson, 861 A.2d 919, 933 (Pa. 2004);

Commonwealth v. Sasse, 921 A.2d 1229, 1238 n.6 (Pa. Super. 2007),

appeal denied, 938 A.2d 1052 (Pa. 2007).

      In the instant matter, as discussed in detail by the PCRA court in its

opinion, counsel wished to present an insanity defense, but Appellant

refused to consider it. (See PCRA Court Opinion, 3/25/15, at 4-6; see also

N.T. PCRA Hearing, 1/26/15, at 10-15).         Our Supreme Court found that

counsel was not ineffective for not overriding the client’s wishes in order to

present an insanity defense. See Commonwealth v. Cross, 634 A.2d 173

(Pa. 1993), cert. denied, 513 U.S. 833 (1994),     The Pennsylvania Supreme

Court stated:

      . . . To plead the defense of insanity suggests that the defendant
      committed the act, but was not legally culpable. Here, appellant
      maintained that he had not committed the murders. Therefore,
      it would have been improper for his attorneys to introduce any
      evidence of insanity.

                                     *     *   *

            Both the [Pennsylvania Rules of Professional Conduct] and
      the Comment [to it] make clear that the client is to decide the
      goal of counsel’s representation. Moreover, the Rule does not

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       furnish counsel with the right to override what the client
       considers to be in his best interest. This is particularly true
       where it has been determined that the client is competent to
       stand trial.

             To be competent for trial a defendant must be capable of
       understanding the nature and objective of proceedings against
       him, and be able to cooperate with his legal representative in
       presentation of his defense. A determination of competency to
       stand trial would support a determination that appellant was
       equipped    with    the     same    “lucidity” required    under
       [Commonwealth v.] Mizell [,425 A.2d 424, 426 (Pa. 1981)].
       Hence, appellant was mentally capable of making decisions
       about his defense, and counsel properly complied with his wishes
       regarding the goals of his representation.

Id. (some citations omitted).

       Here, as discussed above, the uncontradicted evidence at the PCRA

hearing demonstrated that Appellant refused to consider an insanity defense

because he wanted to argue self-defense.           (See N.T. PCRA Hearing,

1/26/15, at 10-15, 17, 21-22, 25-26).      Appellant’s own behavior at the

PCRA hearing supports this, because he interrupted the proceedings on four

separate occasions to proclaim he was innocent of the crime, had been

molested by the victims, and wanted to get out jail. (See id. at 10, 17-18,

23).   Further, Appellant testified that he did not want to go to a mental

hospital but wanted to present a defense that would result in his immediate

release from incarceration.     (See id. at 29).    We will not find counsel

ineffective for failing to override the client’s express wishes to purse self-

defense rather than an insanity defense in the absence of evidence that

Appellant was incompetent to stand trial. See Cross, supra at 175-76.


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      To the extent that Appellant may be claiming that counsel was

ineffective for not pursuing a pre-trial psychological examination which

would have demonstrated his incompetence to stand trial, Appellant has

failed to present any evidence to support a claim of incompetency.       (See

Appellant’s Brief, at 11-13).   At the PCRA hearing, Attorney Blender, an

attorney with substantial experience defending the mentally ill, testified in

detail as to why he believed Appellant was competent to stand trial. (See

N.T. PCRA Hearing, 1/26/15, at 14, 19-21). Dr. John O’Brien, a psychiatrist

with the Court Mental Health Unit, evaluated Appellant prior to trial and

found him competent to stand trial.         (See N.T. Preliminary Hearing,

3/05/09, at 3-4).

      In order to support his claim of incompetency Appellant relies on a

psychological evaluation conducted in 2013 and 2014.            (See Second

Amended PCRA Petition, 9/11/14, Appendix A, Letter from Dr. Stephen E.

Samuel to Stephen O’Hanlon, Esquire, 8/06/14, at pp. 1-9; Appellant’s Brief,

at 11-13).   However, while the evaluation demonstrates that Appellant is

mentally ill, something that is not in dispute, it does not demonstrate that he

was incompetent to stand trial or to choose his defense.         (See Second

Amended PCRA Petition, 9/11/14, Appendix A, Letter from Dr. Stephen E.

Samuel to Stephen O’Hanlon, Esquire, 8/06/14, at pp. 1-9).         Rather, Dr.

Samuel made no assessment as to Appellant’s competency to stand trial in




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2009.     (See id.).    With respect to his state of mind at the time of the

incident, Dr. Samuel stated:

               With regard to the issue of [Appellant’s] state of mind at
        the time of the incidents[,] which resulted in the charges, I
        would state the following within a reasonable degree of
        psychological certainty: [Appellant’s] current state of psychosis
        makes a retrospective assessment of his state of mind at the
        time of the killings unreliable. To do so would be based on
        ungrounded speculation.      Although [Appellant’s] diagnosis is
        clear, and while his diagnosis implies a certain, if not variable
        clinical course, retrospectively establishing a case for mental
        incapacity, or even a period of lucid capacity in him in 2007,
        solely on the basis of his current diagnosis and mental state, is
        unreliable.

(Id. at 9). Thus, Appellant’s claim that, but for counsel’s failure to request a

pre-trial psychological evaluation he would have been found incompetent to

stand trial and that, therefore, counsel could have presented an insanity

defense, lacks merit.

        Accordingly, for the reasons discussed above we find that PCRA court’s

determination is supported by the evidence of record and is free of legal

error. See Ousley, supra at 1242.             Therefore, we affirm the denial of

Appellant’s PCRA petition.

        Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/15/2015




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