J-S29021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JAMES MONROE BALDWIN

                            Appellant                 No. 1240 WDA 2015


                  Appeal from the PCRA Order August 3, 2015
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0001671-2006


BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.:                              FILED JUNE 14, 2016

        Appellant, James Monroe Baldwin, appeals from the order that

dismissed his petition pursuant to the Post Conviction Relief Act (“PCRA”).

Baldwin argues that the PCRA court erred by failing to find that Baldwin’s

trial counsel had been ineffective. We conclude that Baldwin failed to

establish his right to relief under the PCRA, and therefore affirm.

        The Supreme Court of Pennsylvania, in addressing Baldwin’s appeal

from his judgment of sentence, provided the following factual and procedural

summary of Baldwin’s convictions.

        On January 25, 2006, [Baldwin] and his roommate, Brendan
        Martin, had an altercation when [Baldwin] served Martin with a
        notice to vacate the premises due to Martin’s drug use. Martin
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     attempted to hit [Baldwin] with a hammer, and [Baldwin]
     attacked Martin with a large knife, fatally stabbing him in the
     neck and heart. [Baldwin] dismembered the body, placed the
     parts in five plastic bags, and buried the remains in a shallow,
     makeshift grave. The next day, a road department employee
     discovered the grave and alerted police, who found the plastic
     bags containing the victim’s remains, along with a backpack
     containing a piece of paper with [Baldwin’s] name on it. Police
     interviewed [Baldwin], who admitted he attacked the victim and
     killed him.

     [Baldwin] was charged with homicide and abuse of a corpse, and
     proceeded to a jury trial, at which he asserted an insanity
     defense.

Commonwealth v. Baldwin, 58 A.3d 754, 756 (Pa. 2012).

     Baldwin’s trial counsel conceded the basic facts of the case in his

opening statement, and focused his case on the insanity defense.

     [A] lot of what [the prosecutor] said in her opening statement is
     totally agreed with [regarding] the death of Mr. Martin.

     …

     We do know that Mr. Martin is dead. We do know how he died.
     We do know who killed him. Those are facts that I would
     stipulate to. Now, the question is, was James Baldwin insane at
     the time he committed these acts?

     …

     This is one of the most brutal, sadistic, terrible things that you
     could do to another human being. Chopping him up, and he said
     he wanted to chop him up to flush him down the commode. Is
     that sane? When you take a body, you take a body, if this was
     intelligently done, if he’s an evil Professor Moriarity who, you
     know, who was smart enough to plan a murder and then to try
     to hide evidence and lie and do things. That’s what they want
     you to think that he is. Or is he a product of this home school? Is
     he a product of being abused and tortured his whole life? Did he
     become insane, and were his symptoms – they didn’t occur three


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      months after he was in jail. His symptoms were well before that.
      Well before that, and you’ll hear that from the doctors.

      …

      What was done after this person and how he was killed and what
      was done to this poor boy afterwards is an example of one thing.
      Not a specific intent to kill. Not a brilliantly thought-out plan to
      hide evidence, not a criminal mastermind that tried [to] get
      away with murder. It’s an example of total insanity. Total
      insanity. … An evil genius? Somebody that’s trying to hide
      evidence from the police? Or a complete insane nut who didn’t
      know, because of his illness, didn’t know what he was doing.

      He takes this body now, and when he burns his hands on the
      stomach acid, he decides, well, I’ll just chop it up in bigger
      pieces, then what I’ll do is an insane act. That alone you have to
      consider not as a criminal intelligence but as insanity.

N.T., Trial, 2/20-25/08, at 37-43.

      The Commonwealth presented fact witnesses who testified to the

circumstances of the crime and a recording of Baldwin’s confession to

investigators. Baldwin presented the testimony of a single witness, Laszlo

Petras, M.D., a psychiatrist who treated Baldwin while he was involuntarily

committed after his arrest. Dr. Petras opined that Baldwin was incapable of

distinguishing right from wrong when he committed the homicide. In

rebuttal,   the   Commonwealth    called   Bruce   Wright,   M.D.,   a   forensic

psychiatrist who interviewed Baldwin prior to trial and opined that Baldwin

was not legally insane at the time he committed the homicide.

      After deliberation, the jury returned a verdict of guilty on the charges

of first degree murder and abuse of a corpse. The trial court sentenced

Baldwin to life in prison without possibility of parole plus a consecutive term

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of one to two years’ imprisonment. The trial court subsequently denied

Baldwin’s post-sentence motions.

     On appeal, this Court affirmed the judgment of sentence in a published

decision. The Supreme Court of Pennsylvania granted Baldwin’s petition for

allowance of appeal, and affirmed this Court’s decision in an opinion dated

December 28, 2012.

     Baldwin filed a timely pro se PCRA petition. Counsel was appointed to

represent Baldwin, and counsel filed an amended PCRA petition. The PCRA

court denied the amended petition on August 3, 2015, and Baldwin filed this

timely appeal.

     On appeal, Baldwin raises ten separate allegations of trial counsel

ineffectiveness. “On appeal from the denial of PCRA relief, our standard and

scope of review is limited to determining whether the PCRA court’s findings

are supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied,

Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). “[Our] scope of review

is limited to the findings of the PCRA court and the evidence of record,

viewed in the light most favorable to the prevailing party at the PCRA court

level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation

omitted).

     “[T]his Court applies a de novo standard of review to the PCRA court’s

legal conclusions.” Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011)


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(citation omitted). In order to be eligible for PCRA relief, a petitioner must

plead and prove by a preponderance of the evidence that his conviction or

sentence arose from one or more of the errors listed at 42 Pa.C.S.A.

§ 9543(a)(2). These issues must be neither previously litigated nor waived.

See 42 Pa.C.S.A. § 9543(a)(3).

      It is well settled that

      [t]o plead and prove ineffective assistance of counsel a
      petitioner must establish: (1) that the underlying issue has
      arguable merit; (2) counsel’s actions lacked an objective
      reasonable basis; and (3) actual prejudice resulted from
      counsel's act or failure to act.

Commonwealth v. Rykard, 55 A.3d 1177, 1189-1190 (Pa. Super. 2012).

“Generally, where matters of strategy and tactics are concerned, counsel’s

assistance is deemed constitutionally effective if he chose a particular course

that had some reasonable basis designed to effectuate his client’s interests.”

Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa. 2010) (citation

omitted). A failure to satisfy any prong of the test will require rejection of

the claim. See Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).

      The right to an evidentiary hearing on a post-conviction petition is not

absolute. See Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.

Super. 2001). It is within the PCRA court’s discretion to decline to hold a

hearing if the petitioner’s claim is patently frivolous and has no support

either in the record or other evidence. See id. It is the responsibility of the

reviewing court on appeal to examine each issue raised in the PCRA petition


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in light of the record certified before it in order to determine if the PCRA

court erred in its determination that there were no genuine issues of

material fact in controversy and in denying relief without conducting an

evidentiary hearing. See Commonwealth v. Hardcastle, 701 A.2d 541,

542-543 (Pa. 1997).

       In “ineffectiveness claims in particular, if the record reflects that the

underlying issue is of no arguable merit or no prejudice resulted, no

evidentiary hearing is required.” Commonwealth v. Bauhammers, 92

A.3d 708, 726-727 (Pa. 2014) (citation omitted). “Prejudice is established if

there is a reasonable probability that, but for counsel’s errors, the result of

the proceeding would have been different. A reasonable probability is a

probability    sufficient    to    undermine     confidence   in   the   outcome.”

Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (citations

and internal quotation marks omitted). We review a PCRA court’s decision to

deny a claim without a hearing for an abuse of discretion. See id.

       Baldwin first argues that trial counsel was ineffective for making

inflammatory and prejudicial statements about Baldwin and his family that

had no relevant legal purpose.1 Baldwin highlights counsel’s allegations of

____________________________________________


1
  The Commonwealth urges us to affirm on the basis that Baldwin did not
attach a witness certification regarding trial counsel to his petition. See
Commonwealth v. Brown, 767 A.2d 576, 582 (Pa. Super. 2001) (“’where
a petitioner requests an evidentiary hearing … the petition must include … a
signed certification as to each intended witness…”). However, since the PCRA
(Footnote Continued Next Page)


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child abuse at the hands of his father, counsel’s characterization of the

homicide as “brutal, sadistic, and terrible,” and counsel’s characterization of

Martin as “this poor boy,” despite Baldwin’s statement that Martin had

instigated the fight by attacking him with a claw hammer. Furthermore,

Baldwin identifies instances where trial counsel likened him to fictional

murderer Hannibal Lecter and infamous serial killer Jeffrey Dahmer.

      While we agree that this was an unusual defense strategy, it is equally

clear that this was an unusual case that included an undisputedly shocking

treatment of the victim’s body. The evidence linking Baldwin to the crime

included Baldwin’s recorded confession to the police, which painted a very

complex collage of legal issues. Baldwin’s confession indicated that the

altercation between Baldwin and Martin was initiated by Martin attacking

Baldwin with a claw hammer. During the fight, the two men fell to the floor,

knocking over a nearby workbench. Baldwin grabbed a survival style knife

from the floor and stabbed Martin.

      While these facts could form the basis of a claim of self-defense, the

remaining portions of Baldwin’s recorded confession created significant

obstacles. First, self-defense does not negate criminal liability for homicide

where “the accused had a duty to retreat and the retreat was possible with

                       _______________________
(Footnote Continued)

court did not provide Baldwin with notice of this defect before dismissing his
petition, we are precluded from affirming on this basis. See
Commonwealth v. Pander, 100 A.3d 626, 642 (Pa. Super. 2014).



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complete safety.” Commonwealth v. McClendon, 874 A.2d 1223, 1230

(Pa. Super. 2005) (citation omitted). Baldwin stated that after the initial

stab, he stopped stabbing Martin because Martin was saying “stop, stop[.]”

Furthermore, Baldwin admitted that he “tried to kill [Martin] because he just

kept coughing and gurgling on it by sticking him in the heart with the knife.

… I tried to kill him because he was dying. I just wanted it to end.” N.T.,

Trial, 2/20-25/08, at 190-191. Thus, Baldwin’s recorded confession also

established that 1) Baldwin had ended the altercation at the victim’s

insistence, 2) then resumed stabbing the victim, and 3) intended to kill the

victim when he resumed stabbing him.

      This evidence was followed by evidence, including both Baldwin’s

recorded confession and forensic evidence, that Baldwin then proceeded to

dismember Martin’s corpse and bury it on the side of a road. Furthermore,

Baldwin admitted in his recorded confession that he cleaned up the crime

scene.

      Faced with this record, we cannot conclude that Baldwin has

established that counsel’s decision to pursue the defense of legal insanity to

the detriment of a possible self-defense argument prejudiced Baldwin. Trial

counsel’s presentation of the defense of criminal insanity, while arguably

inartful, was not prejudicial to Baldwin. Indeed, it appears to have been the

least problematic option out of a range of bad options.




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      In a related argument, Baldwin contends that trial counsel was

ineffective because his criminal insanity defense was “incomplete,” and

“poorly researched[.]” Baldwin succinctly identifies the legal boundaries of

such a defense, and argues that trial counsel did not present the defense

effectively.

      In Pennsylvania, a defendant may be found not guilty due to legal

insanity if he establishes, by the preponderance of the evidence, that while

committing the criminal act, the defendant was suffering under such a defect

of reason or disease of the mind, as not to know the nature of what he was

doing, or that he did not know what he was doing was wrong. See

Commonwealth v. Roberts, 437 A.2d 948, 951 (Pa. 1981); 18 Pa.C.S.A. §

315(a). While trial counsel’s tactics may have been unusual, in that he

compared his client to fictional and real life individuals who are universally

reviled, we cannot conclude that he failed to present a legally sufficient case

capable of supporting a not guilty verdict.

      Trial counsel highlighted the highly illogical nature of Baldwin’s actions

on the night of the homicide. Furthermore, he presented the opinion of

psychiatrist Laszlo Petras, M.D., who opined that Baldwin, at the time of the

murder, was suffering from a “mental disease that would make it impossible

for him to know what he did was wrong[.]” N.T., Trial, 2/20-25/08, at 272-

273. If the jury had found Dr. Laszlo’s testimony credible, it could have




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returned a verdict of not guilty. Thus, Baldwin’s second argument merits no

relief.

          In his third argument on appeal, Baldwin asserts that trial counsel was

ineffective in failing to present a claim of self-defense. As discussed above,

we are unable to conclude that such a defense would have been meritorious,

given the statements contained in Baldwin’s recorded confession. We

therefore conclude that this argument merits no relief.

          Next, Baldwin argues that trial counsel was ineffective in permitting

the Commonwealth to perform an independent mental health examination

without following the proper process set forth in the Rules of Criminal

Procedure. Specifically, Baldwin notes that there is no indication in the

record, written or transcribed, that Baldwin agreed to the examination. See

Pa.R.Crim.P., Rule 569(A)(1)(b). Furthermore, he asserts that there is no

indication in the record that the trial court ordered the examination, nor that

the trial court provided the required colloquy if it did order the examination.

See Pa.R.Crim.P., Rule 569(A)(2). The Commonwealth concedes that the

record does not document compliance with Rule 569. See Appellee’s Brief,

at 35.

          However, once again, Baldwin has failed to establish that he suffered

prejudice from this action. He does not identify any testimony or other

evidence that would have been impacted if Rule 569 had been complied

with. While it is an open question whether this would qualify as a harmless


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error on direct appeal, in a collateral action it is the petitioner’s burden to

establish prejudice. Since Baldwin has not met this burden, we conclude that

this issue merits no relief.

      Baldwin next argues that trial counsel was ineffective for failing to

request to reopen the record when Baldwin indicated his desire to testify on

his own behalf after the close of evidence. Baldwin’s argument relies heavily

upon the concurring opinion of Justice, now Chief Justice, Saylor, in

addressing Baldwin’s direct appeal. The concurrence noted that trial counsel

did not explicitly request to reopen the record to allow Baldwin to testify.

See Baldwin, 58 A.3d at 766-767. In contrast, the majority opinion

concluded with the statement that it held that “there was no abuse of

discretion in the trial court’s denial of [Baldwin’s] request to reopen the

record to permit his testimony.” Id., at 765-766. Therefore, it is clear that

the majority addressed the issue on the merits and held that the trial court

had properly refused a request to reopen. Thus, even assuming that trial

counsel did not request to reopen the record, it is clear that it would not

have impacted the ultimate outcome. This claim merits no relief.

      In his next argument, Baldwin contends that trial counsel was

ineffective for failing to object to the prosecutor’s closing remarks where she

described the homicide as an “execution,” and argued that Baldwin’s actions

to conceal or destroy evidence of the homicide constituted evidence of both

consciousness of guilt and evidence of malice.


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      We have previously recognized that

      “[n]ot every unwise remark made by an attorney amounts to
      misconduct or warrants the grant of a new trial.”
      Commonwealth v. Carson, 913 A.2d 220, 242 (Pa. 2006).
      “Comments by a prosecutor do not constitute reversible error
      unless the unavoidable effect of such comments would be to
      prejudice the jury, forming in their minds fixed bias and hostility
      toward the defendant so they could not weigh the evidence
      objectively and render a true verdict.” Commonwealth v.
      Stokes,     839    A.2d   226,    230    (Pa.    2003),   quoting
      Commonwealth v. Fisher, 813 A.2d 761, 768 (Pa. 2002).

      Furthermore, according to the Pennsylvania Supreme Court in
      Commonwealth v. Chmiel[, 889 A.2d 501, 543-44 (Pa.
      2005)]:

         In determining whether the prosecutor engaged in
         misconduct, courts must keep in mind that comments
         made by a prosecutor must be examined within the
         context of defense counsel’s conduct. It is well settled that
         the prosecutor may fairly respond to points made in the
         defense closing. A remark by a prosecutor, otherwise
         improper, may be appropriate if it is in [fair] response to
         the argument and comment of defense counsel. Moreover,
         prosecutorial misconduct will not be found where
         comments were based on the evidence or proper
         inferences therefrom or were only oratorical flair.

Commonwealth v. Collins, 70 A.3d 1245, 1252-53 (Pa. Super. 2013).

      Pursuant to these standards, we conclude that neither of the

statements identified by Baldwin were objectionable. As described above,

Baldwin admitted, in his recorded confession, that he stabbed Martin

because he wanted “it to end.” The “it” in question being Martin’s life. Thus,

the prosecutor’s use of “execution” was based upon evidence at trial, and did

not form the basis for a valid objection. Baldwin failed to establish the

arguable merit prong for this claim, and therefore no relief is due on appeal.

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      Turning to Baldwin’s claim that trial counsel should have objected to

the prosecutor’s statement that Baldwin’s attempt to conceal the crime after

the fact constituted evidence of malice. Once again, Baldwin has failed to

establish arguable merit to this claim, as “[a]ctions of the accused that occur

before, during, and after [the crime] are admissible as evidence to show

malice.” Commonwealth v. Gonzalez, 858 A.2d 1219, 1223 (Pa. Super.

2004). The prosecutor’s argument was therefore appropriate under the law,

and therefore could not form the basis of a valid argument. No relief is due

on this claim.

      Baldwin next argues that trial counsel was ineffective by failing to

request a continuance due to the fact that Baldwin had not been properly

medicated while awaiting trial at the Allegheny County Jail. We note that

other than a passing reference to an authority for establishing ineffective

assistance of counsel, Baldwin fails to cite to any authority to establish the

validity of this claim. See Pa.R.A.P. 2119(b). “When a party’s brief fails to

conform to the Rules of Appellate Procedure and the defects are substantial,

this Court may, in its discretion, quash or dismiss the appeal pursuant to

Rule 2101.” Giant Food Stores, LLC v. THF Silver Spring Development,

L.P., 959 A.2d 438, 443 (Pa. Super. 2008) (citing Pa.R.A.P. 2101).

Furthermore, “[w]hen issues are not properly raised and developed in briefs,

when the briefs are wholly inadequate to present specific issues for review[,]

a Court will not consider the merits thereof.” Branch Banking and Trust


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v. Gesiorski, 904 A.2d 939, 942-943 (Pa. Super. 2006). This Court does

not take on the mantle of advocate and perform as appellant’s counsel. See

Commonwealth v. Maris, 629 A.2d 1014, 1017 (Pa. Super. 1993). Due to

the substantial defects in this argument, we conclude that Baldwin has failed

to preserve this issue for our review.

       Next, Baldwin contends that trial counsel was ineffective in failing to

move to suppress Baldwin’s recorded confession. Baldwin argues that trial

counsel should have moved to suppress the statement because he believes

that he was in custody before he received his Miranda2 warnings. Other

than a citation to authority supporting the proposition that success in this

claim requires a showing that there would have been merit in such a motion,

Baldwin provides no authority for his argument. Furthermore, Baldwin

concedes that his first inculpatory statements were not made until well after

he received his Miranda warnings. See Appellant’s Brief, at 52. We cannot

discern from Baldwin’s argument why he believes that his confession should

have been suppressed. As such, we conclude that Baldwin’s argument merits

no relief on appeal.

       In his ninth issue on appeal, Baldwin contends that trial counsel was

ineffective in failing to call character witnesses to testify to his reputation for

non-violence in the community. However, since we have already held that

____________________________________________


2
    Miranda v. Arizona , 384 U.S. 436 (1966).



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trial counsel was not ineffective for conceding that Baldwin killed Martin and

pursuing an insanity defense, Baldwin’s character was not relevant. See

Commonwealth v. Morley, 681 A.2d 1254, 1260 (Pa. 1996). This claim

therefore merits no relief.

      In his final claim of ineffective assistance of counsel on appeal,

Baldwin argues that trial counsel was ineffective for failing to further cross-

examine a Commonwealth witness. Specifically, Baldwin faults trial counsel

for failing to clarify the height differential between Baldwin and Martin, and

to question the witness about Baldwin’s post-arrest statements to police.

Once again, Baldwin makes only a passing reference to the standards for

ineffectiveness of counsel, but no citation to authority supporting the

arguable merit of his claim. Nor has he managed to establish that these

alleged failures prejudiced him. As such, we conclude that no relief is due.

      Baldwin additionally argues that the ineffectiveness of trial counsel in

this case “so undermined the truth-determining process such that there

could not have been a reliable adjudication of guilt … in this case[.]”

Appellant’s Brief, at 56. This argument simply constitutes an attempt to re-

cast Baldwin’s ineffectiveness arguments from claims under the PCRA’s

section 9543(a)(2)(ii), into a claim under section 9543(a)(2)(i). As we have

concluded that Baldwin has not established counsel’s ineffectiveness, this

claim also fails.

      Order affirmed. Jurisdiction relinquished.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/14/2016




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