J.S52013/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

:

ALLEN GORE, :

:

Appellant : No. 1411 EDA 2013

Appeal from the PCRA Order April 19, 2013

In the Court of Common Pleas of Philadelphia County 

Criminal Division No(s).: CP-51-CR-0905541-2003

BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 24, 2014

Appellant, Allen Gore, appeals from the order denying, without a 

hearing, his first Post Conviction Relief Act (PCRA)1 petition entered in the 

Philadelphia County Court of Common Pleas. This Court previously vacated 

the PCRA court’s earlier order reinstating Appellant’s direct appeal rights and 

remanded for further proceedings.2 Appellant presently claims his prior 

counsel were ineffective for failing to preserve an appellate challenge to the 

 

*

Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.

2 Commonwealth v. Gore, 2981 EDA 2011 (unpublished memorandum) 

(Pa. Super. Aug. 2, 2012).
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sufficiency of the evidence and a challenge the weight of the evidence. We 

affirm.

Appellant was found guilty but mentally ill of, inter alia, first-degree 

murder3for killing his father, William Gore (“decedent”), on August 18, 

2002.4 On that day, Appellant’s mother left Appellant and the decedent at 

their home at 3:00 p.m. When she returned at 6:00 p.m., the front door 

was locked, and Appellant opened the door for her after she called through 

the mail slot. She then discovered the decedent bleeding and nonresponsive 

in his bed. Appellant’s mother telephoned her other son to come over and 

attempted to resuscitate the decedent. Appellant, in the meantime, left the 

home. Police officers responded to the scene and found an aluminum 

baseball bat under Appellant’s bed. Appellant’s mother told the officers that 

Appellant was angry at the decedent for letting their dog out earlier in the 

day.

At 7:30 p.m., Appellant entered the Philadelphia Police Administration 

building and told the officer at the front desk he wanted to turn himself in 

because he struck his father with a baseball bat. At trial, the officer testified 

that Appellant told him the decedent “came up to him and said that he was 

 

3 18 Pa.C.S. §§ 314, 2502(a). 

4 The decedent was eighty-three years old and suffered from amyotophic 

lateral sclerosis (“ALS”). He drank alcohol on the morning before Appellant 

attacked him and was carried to his upstairs bedroom by Appellant’s mother 

and Appellant’s brother.
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the devil.” N.T., 10/28/04, at 134-35, 138. The officer called for assistance. 

One of the responding officers testified that Appellant reported he beat the 

decedent after the decedent called him the devil and then put the baseball 

bat he used under his bed. Appellant was taken to the homicide unit for 

interrogation.

Appellant waived his Miranda5rights and gave a statement that was 

transcribed by the interrogating detective. Appellant reported he was being 

treated for “[b]ipolar, manic depressive schizophrenia, psycho affective 

psychosis.” N.T, 10/29/04, at 23. According to Appellant, after the 

decedent was diagnosed with ALS, the decedent called himself the devil and 

Appellant Jesus Christ. Id. at 26. Appellant stated the decedent stuck 

needles in Appellant’s eyes at night and used mental telepathy against him. 

Id. Appellant prayed every night for “God to get it over with.” Id. at 26.

Appellant told the interrogator that that on the morning of the killing, 

he called the decedent a “dickhead” after the decedent let the dog out of the 

home. Id. at 24. Later that day, the decedent came downstairs and “said 

you know I’m the devil, right?” Id. at 25. The decedent spat and laughed 

at Appellant. Appellant went to his room and noticed he had money in his 

pockets. He then left the home and purchased the baseball bat from a 

sporting goods store. When he returned to the home, he went back to his 

room, listened to music, and “wrote something in [his] book[.]” Id. He 

 

5 Miranda v. Arizona, 384 U.S. 436 (1966). 
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then hit decedent once on the head and twice in the back. Id. He wiped off 

the bat and his hands with a towel. Id. at 26. 

Appellant was found incompetent to stand trial, and the trial court 

entered commitment orders from September 24, 2002, to June 3, 2003. 

Thereafter, a preliminary hearing was held on September 3, 2003, and a 

jury trial on the charges of homicide and related offenses commenced on 

October 28, 2004. 

At trial, Appellant raised an insanity defense. Appellant’s mother 

testified for the defense and described Appellant’s social and medical 

background, which included: (1) having behavioral problems beginning when 

he was fifteen years old; (2) watching his friend killed in a robbery, (3)

destroying the interior of the home, which, on one occasion, resulted in a 

stand-off with SWAT officers, (4) being voluntarily and involuntarily 

committed for mental health reasons on numerous occasions, and (5) being 

shot after claiming he was the devil and engaging in an altercation with 

another individual. Appellant’s mother stated he was not taking his 

medications before he killed the decedent. 

The defense also called Dr. Pogos Voskanian, a forensic psychiatrist. 

Dr. Voskanian noted Appellant was found incompetent after killing his father 

and committed to a mental health institution before trial. The doctor 

indicated that Appellant suffered “schizophrenia of paranoid type and posttraumatic stress disorder” and met clinical criteria for temporal lobe 
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epilepsy. N.T., 11/1/04, at 49-50. Dr. Voskanian opined Appellant was 

incapable of differentiating right and wrong at the time of the incident given 

Appellant’s belief the decedent was the devil. Id. at 51.

In rebuttal, the Commonwealth called a forensic psychiatrist, Dr. John 

O’Brien. Dr. O’Brien conceded that Appellant had trouble conforming his 

conduct to the law. He opined, however, that Appellant’s actions—i.e., 

locking the front door, killing the decedent, wiping blood from the bat and 

his hand, hiding the bat under his bed, and then turning himself in to 

police—evinced his knowledge that the killing was wrong. Id. at 175-76. 

The PCRA court summarized the remaining procedural history of this 

case.

On November 2, 2004, following a jury trial before the 

Honorable Jane Cutler Greenspan, [Appellant] was found 

guilty but mentally ill of one count of murder of the first 

degree (18 Pa.C.S. § 2502(a)), and one count of 

possessing an instrument of crime (“PIC”) (18 Pa.C.S. § 

907(a)). The Court immediately imposed the mandatory 

sentence of life in prison for the murder charge (18 Pa.C.S. 

§ 1102(a)(1) & 42 Pa.C.S. § 9727(a)) and a concurrent 

sentence of one to two years incarceration for the PIC 

charge. No post-sentence motions were filed. On 

December 4, 2004, [Appellant] filed a Notice of Appeal. On 

March 15, 2005, [Appellant’s] appeal was dismissed due to 

the defense attorney’s failure to file a docketing statement, 

pursuant to Pa.R.A.P. [ ]3517. [Appellant] was 

represented at trial and on direct appeal by James Gross, 

Esquire.

On April 20, 2006, [Appellant] filed a pro se petition 

pursuant to the Post-Conviction Relief Act (“PCRA”). 

[Appellant] filed an additional pro se PCRA petition on May 

3, 2006. On June 20, 2006, Gary Server, Esquire, was 

appointed to represent [Appellant]. On September 27, 
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2006, Mr. Server filed an Amended PCRA Petition on behalf 

of [Appellant], requesting reinstatement of [Appellant’s] 

appellate rights nunc pro tunc. Judge Greenspan granted 

the petition on October 6, 2006, reinstating [Appellant’s] 

right to appeal. [Appellant] filed a Notice of Appeal on 

October 26, 2006, and raised claims based on the weight 

and sufficiency of the evidence. On November 1, 2007, 

the Superior Court affirmed [Appellant’s] judgment of 

sentence, finding that [his] weight of the evidence claim 

was waived because it was not raised in the trial court, and 

that [his] sufficiency of the evidence claim was waived 

both because the necessary notes of testimony from the 

original trial were not transmitted as part of the record, 

and due to inadequate development of the claim in [his 

counseled] appellate brief. [Commonwealth v. Gore, 

3128 EDA 2006 (unpublished memorandum) (Pa. Super. 

Nov. 1, 2007). Appellant’s] Petition for Allowance of 

Appeal to the Supreme Court was denied on April 16, 

2008. [Commonwealth v. Gore, 678 EAL 2007 (Pa. Apr. 

16, 2008)]

 

[Appellant] filed a third pro se petition on June 17, 

2008. As Judge Greenspan had retired, [Appellant’s] PCRA 

was reassigned to the Honorable Renee Cardwell Hughes. 

On August 6, 2009, Lee Mandell, Esquire, was appointed to 

represent [Appellant]. On January 26, 2010, Mr. Mandell 

filed an Amended PCRA Petition on behalf of [Appellant], in 

which he sought the right to file a second direct appeal 

nunc pro tunc. On July 5, 2011, after Judge Hughes’s 

retirement from the bench, [Appellant’s] PCRA was 

reassigned to the undersigned [PCRA] judge. On 

September 19, 2011, this Court granted [Appellant’s] 

Amended Petition and ordered that [Appellant’s] right to a

direct appeal be reinstated.

On August 2, 2012, the Superior Court [vacated the 

PCRA order granting the direct appeal nunc pro tunc. 

Gore, 2981 EDA 2011, at 9.] The Superior Court 

remanded the matter to the PCRA Court to “conduct its 

analysis of Appellant’s claims pursuant to the strictures of 

the PCRA.” [Id. at 9].

On November 14, 2012, Mr. Mandell filed a 

Supplemental PCRA Petition (“Amended Petition”) raising 
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one claim of trial counsel ineffectiveness and one claim of 

appellate counsel ineffectiveness. Amended Petition at ¶¶ 

8(a)-(b). On February 15, 2013, after reviewing 

[Appellant’s] PCRA Petition and the Commonwealth’s 

Motion to Dismiss, this Court ruled that the claims set forth 

in [Appellant’s] petition were without merit. On that day, 

pursuant to Pa.R.Crim.P. 907, the Court issued notice of its 

intent to dismiss the petition without a hearing (“907 

Notice"). On February 20, 2013, [Appellant] mailed a 

letter to the PCRA Court that contained a litany of 

complaints, none of which was germane to the PCRA 

Petition pending before the Court. On April 5, 2013, the 

Court entered an order dismissing [Appellant’s] PCRA 

Petition.

PCRA Ct. Op., 7/16/13, at 1-3 (footnote omitted). This appeal followed.

Appellant presents the following question for review: 

Did the Honorable PCRA Court err when it denied 

[Appellant’s] Amended PCRA Petition and Supplemental 

Amended PCRA Petition without a hearing, but where the 

[Appellant] pled, and would have been able to prove, that 

he was entitled to relief as the result of ineffective 

assistance of trial counsel and appellate counsel?

Appellant’s Brief at 3. 

Appellant first argues that prior appellate counsel was ineffective for 

failing to brief a challenge to the sufficiency of the evidence in light of his 

insanity defense.6 He asserts “if this issue had been properly briefed and 

 

6 As the PCRA court noted, Appellant’s Rule 1925(b) statement set forth a 

challenge to the sufficiency of the evidence sounding in direct error rather 

than ineffective assistance of counsel. We agree with the court’s conclusion 

that a direct claim challenging the sufficiency of the evidence is waived 

under the PCRA. See 42 Pa.C.S. § 9544(b). The court also opined that 

Appellant’s challenge could be considered within the framework of an 

ineffectiveness claim and addressed it as such. PCRA Ct. Op. at 6. We 

decline to find waiver based on a defective Rule 1925(b) statement and 
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raised in the Superior Court . . . , the Superior Court most likely would have 

granted [him] an arrest of judgment and, hence, [he] has been grossly 

prejudiced.” Id. at 17. No relief is due.

The principles governing our review are

well settled: “In addressing the grant or denial of postconviction relief, an appellate court will consider whether 

the PCRA court’s conclusions are supported by record 

evidence and are free of legal error.” To be entitled to 

PCRA relief, a petitioner must establish, by a 

preponderance of the evidence, his conviction or sentence 

resulted from one or more of the errors found in 42 

Pa.C.S. § 9543(a)(2) . . . .

. . . To be entitled to relief on an ineffectiveness claim, [a 

petitioner] must prove the underlying claim is of arguable 

merit, counsel’s performance lacked a reasonable basis, 

and counsel’s ineffectiveness caused him prejudice. 

Prejudice in the context of ineffective assistance of counsel 

means demonstrating there is a reasonable probability 

that, but for counsel’s error, the outcome of the 

proceeding would have been different. . . . Failure to 

establish any prong of the test will defeat an 

ineffectiveness claim. 

Commonwealth v. Keaton, 45 A.3d 1050, 1060-61 (Pa. 2012) (citations 

and footnote omitted). Moreover, “[a] PCRA petitioner is not entitled to an 

evidentiary hearing as a matter of right, but only where the petition presents 

genuine issues of material fact. A PCRA court’s decision denying a claim 

without a hearing may only be reversed upon a finding of an abuse of 

discretion.” Id. at 1094 (citations omitted). This Court may affirm if there 

 

review the trial court’s consideration of his claim based on prior appellate 

counsel’s alleged ineffectiveness. 
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is any basis on the record to support the PCRA court’s action. 

Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa. Super. 2005). 

The Pennsylvania Supreme Court summarized the legal principles 

underlying a verdict of guilty but mentally ill. 

[A] verdict of guilty but mentally ill is authorized by 

Section 314 of the Crimes Code, as follows:

(a) General rule.—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.

* * *

(c) Definitions.—For the purposes of this section 

and 42 Pa.C.S. § 9727 (relating to disposition of 

persons found guilty by mentally ill): 

(1) “Mentally ill.” 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.

(2) “Legal insanity.” At the time of the 

commission of the act, the defendant 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 doing or, if he did 

know it, that he did not know he was doing 

what was wrong.

18 Pa.C.S. § 314. . . . Section 314(a) does not impose a 

burden of proof concerning a defendant’s mental illness on 

either party, but rather, is implicated where an insanity 
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defense fails but evidence of the defendant’s mental illness 

nevertheless “preponderates.” The insanity defense is 

provided for in Section 315 of the Crimes Code, as follows:

(a) General Rule.—The mental soundness of an 

actor engaged in conduct charged to constitute an 

offense shall only be a defense to the charged 

offense when the actor proves by a preponderance of 

the evidence that the actor was legally insane at the 

time of the commission of the offense.

(b) Definition.—For purposes of this section, the 

phrase “legally insane” means 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 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. § 314.

Commonwealth v. Rabold, 951 A.2d 329, 330-31 (Pa. 2008) (some 

citations and footnote omitted) (emphasis added).

The initial burden of establishing an insanity defense is on the 

defendant, but once raised, the Commonwealth may rebut the claim by 

proving the defendant’s sanity. See Commonwealth v. Yasipour, 957 

A.2d 734, 739 (Pa. Super. 2008). The Commonwealth can establish “sanity 

not only by psychiatric testimony but also by lay testimony which shows that 

he or she knew the nature and quality of the act committed and knew that 

what had been done was wrong.” Id. (citation omitted). 

We are also mindful that

the standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at 
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trial in the light most favorable to the verdict winner, there 

is sufficient evidence to enable the fact-finder to find every 

element of the crime beyond a reasonable doubt. In 

applying the above test, we may not weigh the evidence 

and substitute our judgment for the fact-finder. In 

addition, we note that the facts and circumstances 

established by the Commonwealth need not preclude every 

possibility of innocence. Any doubts regarding a 

defendant’s guilt may be resolved by the fact-finder unless 

the evidence is so weak and inconclusive that as a matter 

of law no probability of fact may be drawn from the 

combined circumstances. The Commonwealth may sustain 

its burden of proof [of] proving every element of the crime 

beyond a reasonable doubt by means of wholly 

circumstantial evidence. Moreover, in applying the above 

test, the entire record must be evaluated and all the 

evidence actually received must be considered. Finally, 

the trier of fact while passing upon the credibility of 

witnesses and the weight of the evidence produced, is free 

to believe all, part or none of the evidence.

Commonwealth v. Lehman, 820 A.2d 766, 772 (Pa. Super. 2003) 

(citations omitted). “Furthermore, it is within the factfinder’s right to 

disbelieve an insanity defense[.]” Yasipour, 957 A.2d at 739 (citation 

omitted). 

Instantly, we agree with Appellant that he presented sufficient 

evidence to raise an insanity defense. However, the Commonwealth 

presented rebuttal expert evidence regarding Appellant’s mental state at the 

time of the incident. Dr. O’Brien testified that even if Appellant was 

delusional at the time of the killing, he was capable of forming a specific 

intent to kill and differentiating right and wrong. The Commonwealth’s 

rebuttal evidence was not so weak or inconclusive that no probability of fact 

regarding Appellant’s sanity could be drawn. Thus, the jury was entitled to 
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disbelieve Appellant’s evidence and credit the Commonwealth’s rebuttal 

evidence, and an appellate court would not reweigh the evidence when 

considering Appellant’s underlying sufficiency argument. See Yasipour, 

957 A.2d at 739; Lehman, 820 A.2d at 772. Accordingly, we agree with the 

PCRA court that Appellant failed to establish arguable merit to his claim that 

prior appellate counsel was ineffective for failing to preserve a challenge to 

the sufficiency of the evidence. 

Appellant next argues the PCRA court erred when considering his claim 

that trial counsel was ineffective for failing to challenge the weight of the 

evidence. He contends that trial counsel’s failure to preserve a weight of the 

evidence challenge in the trial court resulted in waiver of a meritorious issue 

and that he is presently entitled to PCRA relief. See Appellant’s Brief at 18-

20. We disagree.

The principles governing a challenge to the weight of the evidence are 

well settled.

A verdict is against the weight of the evidence “only 

when the jury’s verdict is so contrary to the evidence as to 

shock one’s sense of justice.” A weight of the evidence 

claim is primarily directed to the discretion of the judge 

who presided at trial, who only possesses “narrow 

authority” to upset a jury verdict on a weight of the 

evidence claim. Assessing the credibility of witnesses at 

trial is within the sole discretion of the fact-finder. A trial 

judge cannot grant a new trial merely because of some 

conflict in testimony or because the judge would reach a 

different conclusion on the same facts, but should only do 

so in extraordinary circumstances, “when the jury’s verdict 

is so contrary to the evidence as to shock one’s sense of 
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justice and the award of a new trial is imperative so that 

right may be given another opportunity to prevail.” . . . 

Commonwealth v. Blakeney, 946 A.2d 645, 652-53 (Pa. 2008) (citations 

omitted). 

“[T]he role of the trial judge is to determine that ‘notwithstanding all 

the facts, certain facts are so clearly of greater weight that to ignore them or 

to give them equal weight with all the facts is to deny justice.’” 

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation omitted). 

An appellate court reviews the exercise of discretion by the trial court, “not . 

. . the underlying question of whether the verdict is against the weight of the 

evidence.” Id. (citation omitted). 

Instantly, the parties presented divergent expert opinions on 

Appellant’s ability to form the specific intent to kill and appreciate the 

wrongfulness of his actions. The defense and Commonwealth experts 

attached different significance to Appellant’s actions before and after killing 

the decedent and reached opposite conclusions. We are mindful that a mere 

conflict in the evidence does not give rise to a meritorious weight of the 

evidence challenge. Under the circumstances of this case, however, we 

cannot conclude that a challenge to the weight of the evidence lacked 

arguable merit.

Nevertheless, after review of the record, we are not convinced that 

Appellant’s expert evidence was of such greater weight than the 

Commonwealth’s expert evidence that the jury’s decision, to credit the 
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Commonwealth’s evidence and find Appellant was not legally insane, denies 

justice or shocks the court’s conscience. See Clay, 64 A.2d at 1055. 

Accordingly, we cannot conclude that Appellant demonstrated prejudice, i.e.

that but for trial counsel’s failure to preserve this claim, there was a 

reasonable possibility that a new trial would have been awarded. Thus, we 

concur with the PCRA court’s decision to deny Appellant’s instant 

ineffectiveness claim. 

Because our review reveals no genuine issues of fact to be addressed 

in an evidentiary hearing, we also agree with the PCRA court’s determination 

that further proceedings were not required to consider Appellant’s claims. 

See Keaton, 45 A.3d at 1094. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/24/2014