COMMONWEALTH OF PENNSYLVANIA v. FRED AVERY, JR.
No. 1192 EDA 2020
IN THE SUPERIOR COURT OF PENNSYLVANIA
FILED APRIL 11, 2022
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37; J-A26030-21; Appeal from the PCRA Order March 6, 2020; In the Court of Common Pleas of Philadelphia County; Criminal Division at No.: CP-51-CR-0002607-2015
MEMORANDUM BY STABILE, J.:
Appellant, Fred Avery, Jr., appeals pro se from the March 6, 2020 order entered in the Court of Common Pleas of Philadelphia County dismissing his petition for collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA“),
The PCRA court summarized the factual and procedural history of the case as follows.
The underlying charges stem from Appellant‘s vicious stabbing of three Philadelphia Correctional Officers with his previously hidden six-inch sharpened timing bolt while in county custody on November 17, 2014. Just prior to the attack, Appellant, then an inmate at [the] Philadelphia Correctional Center, (“PICC“), had a verbal and physical altercation with his then-cellmate, Brad Root. Duly assigned Correctional Officer Richard Hull observed Appellant “slapping” Root on the common area day room table and approached the men to break up that fight. Officer Hull told Appellant to go back to his cell. Although he refused at first, he
eventually complied. On the way to his cell, Appellant repeatedly threatened Officer Hull, telling him “I‘m going to kill you when I come out.” After Officer Hull placed him back in his cell, he had informed Appellant that he would need to pack his belongings because he was being sent to a disciplinary unit for making terroristic threats and engaging in a fight with his cellmate. Officer Hull then contacted Sergeant Truehart, his supervisor, to aid with transferring Appellant to the aggregate unit. When Officer Hull returned to Appellant‘s cell with Sergeant Truehart, he told Appellant to back away from the door. As the officers unlock[ed] the cell door, Appellant physically charged them. Sergeant Truehart deployed his pepper spray, which only infuriated Appellant. As the two officers attempted to restrain him, Appellant grabbed a homemade deadly weapon that had been hidden behind his cell toilet. This particular weapon was made out of a six-inch timing bolt or screw and was referred to as a “banger or whack” in prison. Appellant then used this weapon to repeatedly puncture Officer Hull in the head and back area and Sergeant Truehart in the eye. Emergency response was called, and a third correctional officer arrived, Officer Bruce Sowell. As Officer Sowell attempted to assist, he observed the weapon in Appellant‘s hand and the blood splattered on the officers. Appellant also stabbed Officer Sowell twice in his hand during the struggle to restrain him.
As a result, all three victim correctional officers were transported to the Aria Hospital Torresdale Division for treatment of multiple significant injuries. Officer Richard Hull received 4-5 inch deep puncture wounds to his neck and back, which after being treated in the hospital, caused him to miss work for over a year. Additionally, he was diagnosed with Post-[T]raumatic Stress Disorder (“PTSD“) and Depression as a result of the attack. Sergeant Truehart received a puncture wound on the top of his left eye, had to get four stiches, and lost motility in his eye. He was also out of work for a year and now suffers from PTSD. Officer Sowell received two puncture wounds to his left hand that needed sutures to repair.
Appellant was formally arraigned on April 6, 2015. Mythri Jayaraman, Esquire from the Mental Health Unit of the Defender Association of Philadelphia was assigned as his counsel and his case was listed for pre-trial conferences before the Honorable Robert P. Coleman Judge of the First Judicial District Court of
Common Pleas. Defense raised the issue [of] Appellant‘s mental competence to stand trial due to Appellant‘s uncooperative behavior and requested he receive a mental health evaluation. After the evaluation, on June 3, 2015, Appellant was found to be competent. Subsequently, on August 27, 2015, the Honorable Sheila Woods-Skipper Judge of the First Judicial District Court of Common Pleas found Appellant to be incompetent and entered an Order committing [Appellant] under the Mental Health Procedures Act for further treatment. On October 29, 2015, after further evaluation the Honorable Jeffrey P. Minehart Judge of the First Judicial District Court of Common Pleas found [Appellant] to be competent, but in need of continued treatment. [Appellant] was subsequently committed to the Detention Center Forensic Unit for sixty (60) days of treatment.
The case was subsequently reassigned to the Honorable Anne Marie B. Coyle Judge of the First Judicial District Court of Common Pleas . . . for scheduling conference on December 2, 2015. Appellant was deemed competent on April 29, 2016 after review of all updated mental health evaluations. All parties and counsel acknowledged Appellant‘s competence to stand trial. On November 8, 2016, following execution of verbal and written colloquies, Appellant waived his right to a trial by a jury, and opted for a bench trial before the Honorable Anne Marie Coyle, hereinafter referred to as [the trial court], which took place immediately following the waiver of jury. Assistant Defender Paul Downing, Esquire of the Mental Health Unit of the Defender Association of Philadelphia was assigned as Appellant‘s trial counsel. Assistant District Attorney Michael Luongo, Esquire was assigned to represent the Commonwealth of Pennsylvania . . . at trial.
After hearing testimony from both sides, [the trial court] found Appellant guilty of all charges: [(1) aggravated assault, (2) possession of an instrument of crime, (3) simple assault, (4) recklessly endangering another person, (5) aggravated assault, (6) possession of an instrument of crime, (7) simple assault, (8) recklessly endangering another person, (9) criminal attempt - murder, (10) terroristic threats with intent to terrorize another, (11) aggravated assault, (12) possession of an instrument of crime, (13) introduce weapon may be used to escape, (14) simple
assault, (15) recklessly endangering another person, and (16) criminal attempt - murder]. Following entry of guilty verdicts, [the trial court] directed completion of Presentence Evaluations and Mental Health Evaluations by the First Judicial District Probation and Parole Department. Appellant‘s sentencing hearing took place on March 29, 2017. After review of all completed presentence reports and consideration of all relevant data submitted concerning Appellant at a full and fair hearing, [the trial court imposed an aggregate sentence of imprisonment of 27.5 years to 55 years], followed by fifteen (15) years of state supervised reporting probation. Additionally, Appellant was ordered to be administratively segregated while in custody while awaiting transition and to facilitate dual diagnosis treatment to address . . . both his mental health and drug alcohol addictions. Rehabilitative conditions were imposed.
Appellant‘s trial counsel filed a Motion for Reconsideration of Sentence the same day that [Appellant] was sentenced. A motions hearing took place on April 6, 2017, wherein [the trial court] vacated the original sentence and imposed a sentence that in effect reduced the aggregate period of confinement. [The modification involved only the aggravated assault conviction involving Correctional Officer Sowell in light of the mildness of the injury sustained by Officer Sowell compared to the other two officers]. Appellant‘s aggregate sentence was altered to reflect a minimum period of confinement of twenty-five (25) years state incarceration to a maximum period of confinement of fifty-five (55) years, followed by fifteen (15) years of state supervised and conditioned probation.
On November 13, 2017, a counseled appeal was filed on behalf of Appellant . . .[, which our Court discontinued on July 27, 2018, upon Appellant‘s filing of a praecipe for discontinuance].
On May 3, 2019, Appellant filed a [pro se PCRA petition, in which he raised several errors. See infra note 2].
On June 5, 2019, Jennifer Tobin, Esquire[,] was appointed as Appellant‘s PCRA counsel. On January 23, 2020, after full investigation and conferences with her client, Attorney Jennifer Tobin filed and forwarded to Appellant a “Finley” letter identifying and explaining her legal opinion that no merit to the PCRA claims
as raised had existed. This correspondence also included Attorney Tobin‘s filed Motion to Withdraw as appellate counsel. Upon notification by counsel of the filing, [the PCRA court] filed and forwarded to Appellant written notification of [the PCRA court]‘s intention to formally dismiss all requests for relief pursuant to Pa.[R.Crim. 907] .Thereafter, on February 19, 2020, Appellant filed a [pro se response to the PCRA Court‘s Rule 907 Notice]. On March 6, 2020, the PCRA Court filed an Order dismissing Appellant‘s PCRA petition and granting counsel‘s motion to withdraw. On May 18, 2020, Appellant filed a pro se Notice of Appeal to the Superior Court of Pennsylvania.
PCRA Court Opinion, 7/23/20, at 1-8 (footnote and citations to the record omitted).
We first must address the timeliness of the instant appeal. A review of the record reveals that it should have been filed within 30 days of the March 6, 2020 order. The trial court docket, however, shows that it was filed on May 18, 2020. Pursuant to the Supreme Court‘s April 28, 2020 order entered in response to the COVID-19 pandemic, legal papers which were required to be filed between March 19, 2020, and May 8, 2020, generally shall be deemed to have been filed timely if they are filed by May 11, 2020. See In Re: General Statewide Judicial Emergency, Nos. 531 and 532 Judicial Administrative Docket, at 5 (Pa. filed April 28, 2020). Thus, the instant appeal, which was filed on May 18, 2020, is facially untimely.
It appears, however, that the notice of appeal, dated April 3, 2020, but postmarked April 7, 2020, was received by the Office of Judicial Records – Appeals/Post Trial in Philadelphia on May 18, 2020, whereas a copy of the
In addition to the administrative breakdown described above and other issues regarding the trial court‘s compliance with
On appeal, Appellant raises the following issues for our review:
- Whether the PCRA court committed an error in law by determining that Appellant‘s PCRA petition was untimely?
- Whether trial counsel rendered ineffective assistance by failing to present a mental health expert at trial or at sentencing to show that Appellant was free from criminal liability in this matter?
Whether the court below abused its discretion by denying PCRA counsel‘s motion for appointment of a (mental health) Expert Witness thereby denying Appellant the opportunity to prove his claim?
Appellant‘s Brief at 3 (verbatim).
“[A]n appellate court reviews the PCRA court‘s findings of fact to determine whether they are supported by the record, and reviews its conclusions of law to determine whether they are free from legal error.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).
In his first claim, Appellant argues that the PCRA court erred in concluding that his PCRA petition was untimely. The claim has no merit as timeliness was not the basis for the court‘s decision. While the order dismissing the petition states that the petition was untimely, a review of the Rule 907 Notice, Appellant‘s response to Rule 907 Notice, and PCRA court‘s Rule 1925 opinion dispel any ambiguity as to the actual ground of dismissal: the PCRA court found that Appellant‘s claims have no merit. Appellant is therefore entitled to no relief on his first claim.
In his second claim, Appellant argues that trial counsel was ineffective for “failing to present a mental health expert at trial or at sentencing to show that Appellant was free from criminal liability in this matter.” Appellant‘s Brief, at 3. His latest argument, contained within the argument section of his brief, recasts his argument that trial counsel was ineffective to show that Appellant was free of criminal liability by pursuing a “‘lack of criminal liability defense’ .
In addressing ineffective assistance of counsel claims, we are guided by the following authorities:
[A] PCRA petitioner will be granted relief [for ineffective assistance of counsel] only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the “[i]neffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.”
42 Pa.C.S. § 9543(a)(2)(ii) . “Counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel‘s performance was deficient and that such deficiency prejudiced him.” Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). In Pennsylvania, we have refined the Strickland performance and prejudice test into a three-part inquiry. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001). Thus, to prove counsel ineffective, the petitioner must
A successful insanity defense leads to an acquittal where the defendant proves that, at the time of the offense, the defendant was under such a defect of reason, from a disease of the mind, as to not know the nature and quality of the defendant‘s act or, if the defendant did know it, that he did not know that what he was doing was wrong. See
Because there was no ground to pursue a legal insanity defense, trial counsel could not have pursued a guilty but mentally ill verdict. Mentally ill is defined as one “who as a result of mental disease or defect, lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.”
A person who timely offers a defense of insanity in accordance with the Rules of Criminal Procedure may be found “guilty but mentally ill” at trial if the trier of facts finds, beyond a reasonable doubt, that the person is guilty of an offense, was mentally ill at the time of the commission of the offense and was not legally insane at the time of the commission of the offense.
Next, a defendant charged with first-degree murder who does not meet the legal insanity defense standards, but nonetheless operated under a limited mental capacity, may pursue a “diminished capacity” defense. “To establish a diminished capacity defense, a defendant must prove that his cognitive abilities of deliberation and premeditation were so compromised, by mental defect or voluntary intoxication, that he was unable to formulate the specific intent to kill.” Commonwealth Hutchinson, 25 A.3d 277, 312 (Pa. 2011) (citing Commonwealth v. Rainey, 928 A.2d 215, 237 (Pa. 2007), and Commonwealth v. Spotz, 896 A.2d 1191, 1218 (Pa. 2006)). Diminished capacity is not a justification or excuse; it “is essentially a rule [of evidence] that permits the admission of expert testimony to disprove an element of first-degree murder (mens rea) and that requires the judge to comment on the expert evidence in a way that ensures that the jury will give it neither too much nor too little weight.” Standard Criminal Jury Instructions, 5.01B; see also Hutchinson, 25 A.3d at 312 (“A diminished capacity defense does not exculpate the defendant from criminal liability entirely, but instead negates the element of specific intent” to kill and may be grounded in mental defect
Here, Appellant was not charged with first-degree murder. In fact, Appellant was charged with attempted murder. Accordingly, the diminished capacity defense was not available to him.4 Trial counsel therefore could not be deemed to be ineffective for not pursuing a diminished capacity defense.
Even if a diminished capacity defense was available to Appellant, evidence of a specific intent to kill may disprove a defense of diminished capacity. See Commonwealth v. Legg, 711 A.2d 430, 435 (Pa. 1998). Here, as recounted by the PCRA court, see PCRA Court Opinion, 7/23/20, at 15-16, evidence about specific intent was so overwhelming that we likewise cannot conclude that counsel‘s failure to raise a diminished capacity defense resulted in ineffective assistance of trial counsel.
While Appellant also argues that Section 7404(b) of the MHPA provides a defense separate from other defenses based on a person‘s mental capacity at the time of the crimes, Appellant provides only conclusory statements
The Mental Health Procedures Act specifically provides that even if the court refuses to enter a pre-trial acquittal based on a lack of criminal responsibility, the defendant still “may raise the defense at such time as he may be tried.” See
50 Pa.Stat.Ann. § 7404(a) . Thus, the precise issue that Scott seeks to have reviewed at this time—i.e., whether he was legally insane at the time he committed these offenses and thus should be acquitted on all charges—can be presented to the fact-finder at his upcoming trial. If the jury rejects Scott‘s insanity defense, he still will be free to challenge that finding on a direct appeal. On the other hand, if the fact-finder accepts Scott‘s argument and acquits him of all charges, it would obviate the necessity for any appeal relating to criminal responsibility.
Scott, 578 A.2d at 941 (internal citation omitted).
Accordingly, we conclude that trial counsel was not ineffective for not separately raising a MHPA Section 7404 defense of “lack of criminal responsibility“, since this reference does not provide for any additional mental health defenses than otherwise available at law.
In his last claim, Appellant argues that the PCRA court abused its discretion in denying PCRA‘s counsel application for pre-approval of fees for a psychiatric evaluation to prove “lack of criminal liability defense” under the MHPA. Appellant‘s Brief at 23 (citing Scott, supra).5 In support of his application, Appellant argues that under Commonwealth v. Santiago, 855 A.2d 682 (Pa. 2004), the PCRA court was supposed to hold a “retrospective hearing to establish his mental state at the time of the incident.” Id. at 24. We disagree.
In Santiago, a plurality of the Supreme Court held that the failure to raise on direct appeal a claim that the appellant was incompetent at the time of trial does not constitute a waiver of that claim for purposes of the PCRA. Additionally, the Supreme Court identified the circumstances under which a retrospective hearing for purposes of determining defendant‘s competency at
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/2022