J-S65017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JASON P. MAPLE,

                            Appellant               No. 1919 WDA 2015


               Appeal from the PCRA Order of November 3, 2015
            In the Court of Common Pleas of Westmoreland County
              Criminal Division at No(s): CP-65-CR-0002544-2006
                         and CP-65-CR-0002545-2006


BEFORE: LAZARUS, OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                            FILED MARCH 13, 2017

       Appellant, Jason P. Maple, appeals from the order entered on

November 3, 2015 in the Criminal Division of the Court of Common Pleas of

Westmoreland County that dismissed his petition filed pursuant to the

Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9641-9645. We affirm.

       This Court previously authored the following factual background on

direct appeal in this matter.

       At approximately 4:00 a.m. on May 30, 2006, William Teck and
       Patrick Altman were walking along railroad tracks in Manor,
       Pennsylvania. Mr. Teck and Mr. Altman had been staying at the
       residence of Jennifer Vinsek,1 who was Appellant’s girlfriend and
____________________________________________


1
  Vinsek was tried separately for her role in the crimes at issue herein. She
was convicted of second degree murder, two counts of robbery, and three
counts of conspiracy.



*Retired Senior judge assigned to the Superior Court.
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     Mr. Altman’s cousin. Appellant shot and killed Mr. Teck with a
     shotgun and then fired his weapon at Mr. Altman. While Mr.
     Altman was not struck with a bullet, he dropped a bag that he
     was carrying as he fled the scene.

     Appellant’s accomplices in the crime included Jennifer Vinsek,
     Dewayne Shank, Dewayne’s brother Nathan Shank, and Ryan
     Bronowski.     Following the shootings, Nathan removed a
     backpack from Mr. Teck’s body, and Appellant retrieved Mr.
     Altman’s abandoned bag. Dewayne, Nathan, and Bronowski
     testified against Appellant at trial.     The Commonwealth
     witnesses also included Mr. Altman, Amy Kujawa, who was
     Vinsek’s roommate, and Robert Johnson, a friend of Ms. Kujawa
     and Vinsek.

     The motivation for the crimes generated from events that
     started about one week prior to the shooting on May 23, 2006.
     At that time, Mr. Johnson inadvertently walked in on Vinsek and
     Mr. Teck engaged in consensual sexual intercourse at Ms.
     Kujawa’s and Vinsek’s residence on 12 B Division Street,
     Greensburg, Pennsylvania. On Thursday, May 25, 2006, Vinsek
     left with Appellant to go camping, where they stayed until May
     29, 2006. During their camping trip, Vinsek told Appellant that
     Mr. Teck had assaulted and attempted to rape her.

     When Vinsek and Appellant returned to Greensburg on May 29,
     2006, they went to Vinsek’s apartment, which was in disarray.
     Vinsek claimed that Mr. Teck and Mr. Altman were responsible
     for the damage and that they also had stolen items. Vinsek and
     Appellant immediately tracked down Mr. Teck and Mr. Altman,
     who were drinking at Clear Waterz Bar in Greensburg, where Ms.
     Kujawa worked as a bartender. At about 12:30 a.m. on May 30,
     2006, Appellant and Vinsek confronted the two men and, at
     approximately 1:00 a.m., were ejected from Clear Waterz Bar by
     the owner.

     Appellant and Vinsek then returned to 12B Division Street and
     contacted police to report that a burglary had occurred.
     Greensburg Police Officers Donald Sarsfield and Kerry Dieter
     responded to the burglary report. Mr. Johnson was present
     because he had seen Mr. Teck and Mr. Altman at the apartment
     during the day of May 29, 2006. Vinsek informed police that Mr.
     Altman and Mr. Teck burglarized her apartment and that Mr.
     Teck had attempted to rape her the previous week. In the

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     presence of Police Officer Sarsfield, Police Officer Dieter, and Mr.
     Johnson, Appellant threatened to retaliate against Mr. Teck and
     Mr. Altman.

     After Officers Dieter and Sarsfield left Vinsek’s apartment,
     Appellant contacted Dewayne Shank and asked him for
     assistance in confronting Mr. Teck and Mr. Altman. Appellant
     told Dewayne to enlist the aid of Nathan Shank and Bronowski
     and informed the Shank brothers that Mr. Teck had guns,
     money, and drugs in his backpack, and that he wanted to
     retaliate against Mr. Teck and Mr. Altman for certain crimes that
     they had committed against Vinsek. Appellant promised the
     Shanks that they could keep the guns, money, and drugs in Mr.
     Teck’s possession in return for their assistance.

     While Appellant was arranging for help, Mr. Teck and Mr. Altman
     left Clear Waterz Bar and went to Manor Diner. Vinsek located
     the two men through Ms. Kujawa.         Nathan, Dewayne, and
     Bronowski drove to Manor and rendezvoused with Appellant and
     Vinsek. Vinsek then induced Ms. Kujawa to invite Mr. Teck and
     Mr. Altman to a party at 12B Division Street so that the two
     victims, who did not have a vehicle, would leave the diner to
     walk to Greensburg. When the two men left Manor Diner and
     started out toward Greensburg along the railroad tracks,
     Appellant followed the two men and fired his shotgun twice at
     them, killing Mr. Teck.

                                *     *     *

     After litigating an unsuccessful motion to suppress his two
     inculpatory remarks, Appellant was convicted at a jury trial.
     Appellant was convicted of first-degree murder of William Teck,
     conspiracy to commit homicide, and conspiracy to commit
     robbery.     As to the victim Patrick Altman, Appellant was
     convicted of attempted homicide, aggravated assault, conspiracy
     to commit robbery, and robbery. Appellant was acquitted of
     robbery with respect to Mr. Teck.

Commonwealth v. Maple, 11 A.3d 1015 (Pa. Super. 2010) (unpublished

memorandum) at 1-5.




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      Following the conclusion of direct appeal, Appellant filed the instant

PCRA petition on December 31, 2014.        By order entered on November 3,

2015, the court denied Appellant’s petition. Appellant filed a timely notice of

appeal on November 30, 2015.        Thereafter, both Appellant and the court

complied with Pa.R.A.P. 1925.      The matter is now ripe for consideration.

      Appellant raises two claims for our review:

      Whether trial counsel was ineffective for failing to call an expert
      witness to testify regarding alcoholism and the impact of alcohol
      intoxication on cognition and the ability to form the specific
      intent to kill, in violation of the Sixth Amendment to the
      Constitution of the United States and Article I, Section 9 of the
      Pennsylvania Constitution?

      Whether trial counsel was ineffective for failing to object to the
      court’s instructions with regard to both the “overt act”
      requirement and the special interrogatories[, as well as the form
      of the special interrogatories,] in violation of the Sixth
      Amendment to the Constitution of the United States and Article
      I, Section 9 of the Pennsylvania Constitution?

Appellant’s Brief at 3 (superfluous capitalization omitted).

      “Because most PCRA appeals involve questions of fact and law, we

employ a mixed standard of review. We defer to the PCRA court’s factual

findings and credibility determinations [that are] supported by the record.

In contrast, we review the PCRA court’s legal conclusions de novo.”

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super.

2015) (en banc), appeal denied, 123 A.3d 331 (Pa. 2015) (internal citations

omitted).




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      Both of Appellant’s claims argue that trial counsel was ineffective.

“[T]he Sixth Amendment to the United States Constitution and Article I,

[Section] 9 of the Pennsylvania Constitution, [entitle a defendant] to

effective counsel.   This right is violated where counsel’s performance so

undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.” Commonwealth v. Simpson,

112 A.3d 1194, 1197 (Pa. 2015) (internal quotation marks and citation

omitted).   “[T]rial counsel is presumed to be effective.” Commonwealth

v. Patterson, 143 A.3d 394, 398 (Pa. Super. 2016) (citation omitted). To

prevail on an ineffective assistance of counsel claim, a “petitioner must plead

and prove (1) the legal claim underlying the ineffectiveness claim has

arguable merit; (2) counsel's action or inaction lacked any reasonable basis

designed to effectuate petitioner’s interest; and (3) counsel’s action or

inaction resulted in prejudice to petitioner.”   Commonwealth v. Mason,

130 A.3d 601, 618 (Pa. 2015) (citation omitted).

      In his first issue, Appellant argues that trial counsel was ineffective in

failing to call an expert witness to testify about alcoholism and the impact of

alcohol intoxication on cognition and the ability of a defendant to form the

specific intent to kill.   To support this claim, Appellant proffered the

testimony of Dr. Mark King, a psychologist. Dr. King interviewed Appellant

and his parents about Appellant’s history of consuming alcohol, reviewed

Appellant’s armed services records, and considered Appellant’s prior contacts


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with law enforcement and concluded, based on this information, that

Appellant should be assessed as an alcoholic. Dr. King opined that when an

alcoholic consumes alcohol, he encounters significantly more cognitive

impairment, loss of judgment, and reduced ability to form intent than a

non-alcoholic who consumes alcohol. Based upon his review of Appellant’s

statements to police, his trial testimony, and his account of alcohol

consumption leading up to the shooting, Dr. King concluded that Appellant

could not form the specific intent to kill.

      Appellant argues that Dr. King was available to testify at trial and that

counsel knew or should have been aware of the need for expert testimony

on voluntary intoxication to reduce first-degree murder to third-degree

murder. See 18 Pa.C.S.A. § 308 (evidence of intoxication may be offered by

the defendant whenever it is relevant to reduce murder from a higher

degree to a lower degree). Appellant also argues that the absence of expert

testimony “to explain if and why an alcoholic may appear to lay observers to

be functioning normally when, in reality he [is] immersed in a blackout

episode” left the jury confused and more likely to conclude that Appellant

was a liar who committed first-degree murder.        Appellant’s Brief at 36.

Appellant therefore maintains that trial counsel was ineffective in failing to

call an expert witness to explain the impact of alcohol consumption on his

capacity to formulate the specific intent to kill.




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       To establish counsel was ineffective for failing to call a witness,
       appellant must show: (1) the witness existed; (2) the witness
       was available to testify for the defense; (3) counsel knew of, or
       should have known of, the existence of the witness; (4) the
       witness was willing to testify for the defense; and (5) the
       absence of the testimony of the witness was so prejudicial as to
       have denied [appellant] a fair trial.

Commonwealth v. Thomas, 44 A.3d 12, 23 (Pa. 2012). “Trial counsel's

failure to call a particular witness does not constitute ineffective assistance

without some showing that the absent witness'[s] testimony would have

been    beneficial   or   helpful    in   establishing   the   asserted   defense.”

Commonwealth v. Chmiel, 889 A.2d 501, 546 (Pa. 2005).

       Appellant identifies two purposes for the introduction of Dr. King’s

testimony. First, he argues that the testimony was essential to explain to

the jury that his consumption of alcohol caused cognitive impairment that

precluded the formation of a specific intent to kill. Second, Appellant argues

that Dr. King’s testimony was necessary to enable the jury to understand

why Appellant may have appeared to be functioning normally to observers

when, in fact, he was immersed in a blackout episode which explained his

subsequent failure of recall.       We reject both proposed uses of Dr. King’s

testimony.

       The certified record refutes Appellant’s contentions regarding the need

for expert testimony regarding alcohol intoxication and impairment. As the

Commonwealth points out, Officers Sarsfield and Dieter, Robert Johnson,

Dewayne Shank, Nathan Shank, and Ryan Bronowski all had contact with



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Appellant on the night of the shooting and testified that Appellant appeared

to be sober.2     See Commonwealth’s Brief at 24-25.         Moreover, Appellant

never testified as to the quantity of alcohol he consumed during the relevant

time period.     Additionally, Appellant’s claim that Dr. King’s testimony was

needed to explain his memory loss appears contrary to the facts. Appellant

cites the following testimony from Dr. King in support of his claim:

       Well, part of what alcohol does to an alcoholic that it doesn’t
       necessarily do to a non-alcoholic to the same extent is it
       interferes with the neurotransmission, electrical impulses
       between neuron [synapses], and it blocks your memory. So,
       [the alcoholic] could use functioning that is rote. [The
       alcoholic] could drive a car from the bar to home if [he
       was] used to it, and if [he got] lucky not get caught. But if
       you had as much to drink and you’re not an alcoholic, you’re
       going to weave all over [the] place or kill somebody or the police
       will stop you.

Appellant’s Brief at 19 (emphasis added), citing N.T. PCRA, 8/23/13, at 133.

Even if we assumed, for purposes of argument, that Dr. King advanced a

plausible theory to explain an alcoholic’s memory loss, despite              the

individual’s performance of habitual and routine acts, the proffered opinion

does not explain the facts before us.            Here, the evidence showed that

Appellant’s conduct on the night in question involved planning and

deliberation and was not routine and habitual. To perpetrate the attack on

the victims, Appellant recruited the assistance of several other individuals,
____________________________________________


2
  Appellant acknowledges that witnesses for the prosecution testified that he
did not appear to be intoxicated on the night of the shooting.           See
Appellant’s Brief at 13.



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allocated potential spoils to induce the assistance of others, and lured the

victims away from a public space and into a more secluded area where they

would be vulnerable to an assault and where the likelihood of detection

would be reduced. The substantial evidence of planning and premeditation

compels us to conclude that Dr. King’s testimony would not have helped to

establish a voluntary intoxication defense in this case.   Hence, Appellant’s

first claim merits no relief.

      Appellant’s second issue concerns alleged ineffective assistance of

counsel in failing to object to jury instructions and special interrogatories

regarding the conspiracy charges.     Specifically, Appellant argues that trial

counsel was ineffective in failing to object to the court’s instructions with

respect to the “overt act” requirement. Appellant also raises a related claim

that counsel wrongly failed to challenge the court’s special interrogatories

that directed the jury to specify the overt act undertaken in furtherance of

the conspiracy.

      By way of background, at criminal information 2545 C 2006, the

Commonwealth alleged specific overt acts committed in furtherance of the

conspiracy    offenses   charged   against   Appellant.    At   count     2,   the

Commonwealth alleged that Appellant committed the overt act of firing a

shotgun at Mr. Teck. At count 4, the Commonwealth alleged that Appellant

committed the overt act of firing a shotgun at Mr. Altman.              The jury,

however, based its guilty verdicts for the conspiracy counts on different acts.


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Appellant attributes the variance between the information and the verdict to

the trial court’s improper instructions and to the court’s improper special

interrogatories concerning the consideration and identification of the overt

acts supporting the conspiracy charges.3 Appellant asserts that trial counsel

was ineffective in failing to object to the manner and form of the court’s jury

instructions and special interrogatories.

       Criminal informations must be read in a common sense manner and

their purpose is to provide the accused with sufficient notice to prepare a

defense.     Commonwealth v. Einhorn, 911 A.2d 960, 978 (Pa. Super.

2006). A variance between the term in an information and the proof at trial

is not fatal unless it misleads the defendant, involves an element of surprise

that hinders the preparation of a defense, precludes anticipation of the

prosecution’s proof, or impairs a substantial right.     Commonwealth v.

Jones, 912 A.2d 268, 289 (Pa. 2006). Appellant cites no Pennsylvania case

law that addresses the issue of variance relevant to overt acts, and our own

efforts have yielded none. The federal courts, however, have held that the

prosecution is not limited in its proof at trial to those acts alleged in the


____________________________________________


3
  Appellant argues that, in charging the jury, the court referred to the overt
acts alleged by the Commonwealth but did not make clear that the jury was
limited to relying upon those overt acts in support of Appellant’s conspiracy
convictions. Similarly, Appellant argues that the court’s instructions on its
special interrogatories failed to specifically direct the jury that it was
constrained to rely upon the overt acts alleged in the criminal informations.



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information.   See United States v. Adamo, 534 F.2d 31, 38 (3d. Cir.

1976).

      Upon review, we discern no basis for relief on this issue.    Appellant

contends only that counsel breached his duty to object to the court’s

instructions and special interrogatories because they supposedly produced a

variance between the criminal information and the jury’s verdict. Appellant

does not allege, however, that the information misled him at trial, prejudiced

his efforts to prepare a defense or anticipate the Commonwealth’s proof, or

impaired a substantial right. Moreover, Appellant cites no authority for his

claim that the conspiracy charges could only be proved by the specific overt

acts alleged in the information.   When properly read in a common sense

manner, the information in this case gave Appellant adequate notice of the

charges against him. Under these circumstances, we conclude that counsel

cannot be deemed ineffective.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/2017




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