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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : : IN THE SUPERIOR COURT OF

PENNSYLVANIA v. : : LARRY WILSON, : No. 782 EDA 2013 : Appellant :

Appeal from the PCRA Order, January 31, 2013, in the Court of Common Pleas of Bucks County Criminal Division at No. CP- 09

- CR -0002838-2003

BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND WECHT, J J.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 11, 2014 Larry Wilson appeals from the order of January 31, 2 013, denying his

PCRA 1 petition. We affirm.

Appellant, a PCP addict, stabbed his sister’s roommate in the neck with a knife during a visit to their apartment, fatally wounding him. Appellant’s sister testified appellant was in a trance-like state for the majority of the visit and had continuously stared at the victim in an angry fashion. Appellant stated t o police that he killed the victim because the demons inside him told him to do so. Appellant’s urine and blood tested positive for small traces of PCP and marijuana.

Commonwealth v. Wilson , No. 1783 EDA 2004, unpublished memorandum at 1-2 (Pa.Super. filed September 22, 20 05). Following a jury trial, appellant was found guilty of first-degree mu rder, criminal trespass,

1 Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546

.J. S23014/14

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and possession of an instrument of crime. On December 2 2, 2003, appellant was sentenced to life imprisonment for first-degree murd er and concurrent sentences for criminal trespass and PIC. This court affirm ed judgment of sentence on September 22, 2005; and on May 1, 2007, o ur supreme court denied allowance of appeal. Appellant filed a timely pro se PCRA petition on April 11, 2008. Counsel was appointed and filed amended petitions on a ppellant’s behalf. An evidentiary hearing was held on October 3, 2012, a t which both appellant and trial counsel testified. On January 31, 2013, the PCRA court denied the petition. On February 27, 2013, appellant filed a timely notice of appeal. Appellant has complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.; and the PCRA court has filed an opinion, relying on its Januar y 31, 2013 memorandum denying PCRA relief. Appellant has raised the following issues for this court ’s review:

I. Whether the trial court erred by denying [appellant]’s claim for [PCRA] relief where trial counsel failed to convey a plea bargain offered by the Commonwealth prior to trial[?]

II. Whether the trial court erred by denying [appellant]’s claim for [PCRA] relief where trial counsel failed to present evidence of Dandy Walker Syndrome[?]

III. Whether the trial court erred by denying [appellant]’s claim for [PCRA] relief where trial counsel failed to call character witnesses on the Appellant’s behalf[?]J. S23014/14

- 3 - IV. Whether the trial court erred by denying [appellant]’s claim for [PCRA] relief where trial counsel failed to call the Appellant as a witness at his trial[?]

V. Whether the trial court erred by denying [appellant]’s claim for [PCRA] relief where [trial counsel] failed to permit the Appellant to participate in his defense at trail [sic][?] VI. Whether the trial court erred by denying [appellant]’s claim for [PCRA] relief where [trial counsel] failed to raise an objection and failed to request that the jury to [sic] consider Voluntary Intoxication as a defense[?] Appellant’s brief at 4. Initially, we recite our standard of review:

This Court’s standard of review regarding an order denying a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Halley , 582 Pa. 164, 870 A.2d 795, 799 n. 2 (2005). The PCRA court’s findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carr , 768 A.2d 1164, 1166 (Pa.Super.2001). Commonwealth v. Turetsky , 925 A.2d 876, 879 (Pa.Super. 2007), appeal denied , 940 A.2d 365 (Pa. 2007).

“To prevail on a claim alleging counsel’s ineffectiveness, Appellant must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel’s course of conduct was without a reasonable ba sis designed to effectuate his client’s interest; and (3) that he was prejudiced by counsel’s ineffectiveness.” Commonwealth v. Wallace , 555 Pa. 397, 407, 724 A.2d 916, 921 (1999), citing Commonwealth v. Howard , 538 Pa. 86, 93, 645 A.2d 1300, 1304 (1994) (other citation omitted). InJ. S23014/14

- 4 - order to meet the prejudice prong of the ineffectiveness standard, a defendant must show that there is a “‘reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been diffe rent.’” Commonwealth v. Kimball , 555 Pa. 299, 308, 724 A.2d 326, 331 (1999), quoting Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A “‘[r]easonable probability’ is defined as ‘a probability sufficient to undermine co nfidence in the outcome.’” Id. at 309, 724 A.2d at 331, quoting Strickland , 466 U.S. at 694, 104 S.Ct. 2052.

Commonwealth v. Jones , 811 A.2d 1057, 1060 (Pa.Super. 2002), appeal

denied , 832 A.2d 435 (Pa. 2003). “We presume counsel is effect ive and place upon Appellant the burden of proving otherwise. Counsel cannot be found ineffective for failing to pursue a baseless or m eritless claim.” Commonwealth v. Poplawski , 852 A.2d 323, 327 (Pa.Super. 2004) (citations omitted). In his first issue on appeal, appellant claims that tr ial counsel, Ann Faust, Esq., was ineffective for failing to communi cate a plea offer of third-degree murder.

Generally, counsel has a duty to communicate plea bargains to his client, as well as to explain the advantages and disadvantages of the offer. Failure to do so may be considered ineffectiveness of counsel if the defendant is sentenced to a longer prison term than the term he would have accepted under the plea bargain. Where the PCRA court's determination of credibility is supported by the record, we will not disturb it on appeal.J. S23014/14

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Commonwealth v. Marinez , 777 A.2d 1121, 1124 (Pa.Super. 2001), appeal denied , 788 A.2d 374 (Pa. 2001) (citations omitted). Appellant relies on a letter from Kenneth J. Weiss, M .D., who was a defense expert at trial. The letter is dated August 5, 2004, while the case was on appeal, and references a plea offer:

My understanding is that you rejected a plea offer and insisted on having a trial. Your lawyers told yo u that, by using a defense of voluntary intoxication[ 2 ],

2 Evidence of voluntary intoxication or drugged

condition may be used to reduce murder from a higher degree to a lower degree. 18 Pa.C.S. § 308. The theory of this rule of law is that a person overwhelmed by the effects of alcohol or drugs cannot form a specific intent to kill. As this Court stated in Commonwealth v. England , 474 Pa. 1, 375 A.2d 1292 (1977): Where the question of intoxication is introduced into a murder case its only effect could be to negate the specific intent to kill which is required for a finding of murder of the first degree . . . . If intoxication does render an accused incapable of forming the necessary intent the result is to reduce the crime to a lesser degree of murder. In no event does the reduction change the character of the crime from murder to manslaughter.

Id. at 19-20, 375 A.2d at 1301. Further, in order for intoxication to reduce murder from a higher to a lower degree, it must be proven that the actor was overwhelmed to the point of losing his faculties and sensibilities. Commonwealth v. Reiff , 489 Pa. 12, 15, 413 A.2d 672, 674 (1980).

Commonwealth v. Breakiron , 571 A.2d 1035, 1041 (Pa. 1990).J. S23014/14

- 6 - the best you could do was to have first-degree murder reduced to third-degree. This is the same effect as getting a plea bargain. Why you chose to have a trial is mysterious to us, but it is a fact that your lawyers advised against it. Intoxication defenses are unpopular, and I am sorry to say that you gambled and lost. PCRA petition, 4/11/08, “Exhibit for first arguement [sic]”; docket #50. Whatever Dr. Weiss’ “understanding” was, Attorney Faust t estified unequivocally that there was never any such plea offer . (Notes of testimony, 10/3/12 at 53.) Attorney Faust testified that appellant was never offered a plea agreement and that appellant was ada mant that he wanted a jury trial. ( Id. at 54.) Attorney Faust testified that if they were offered third-degree murder, they would have done everythin g in their power to get appellant to take it, particularly because juries gener ally do not like intoxication defenses. ( Id. ) Attorney Faust had no idea why Dr. Weiss was under the misapprehension that a plea down to third-d egree murder was offered. ( Id. ) Attorney Faust testified that the prosecuting attorn ey stated during a pre-trial conference that he would not oppose a bench trial; however, there was no plea offer and the trial judge never indicated he would find appellant guilty of only third-degree mu rder. ( Id. at 53-54.) The PCRA court found as a fact that no plea bargain w as ever offered to appellant. (PCRA court opinion, 1/31/13 at 4.) The court’s finding is supported by the rec ord, including Attorney Faust’s testimony, and will no t be disturbed on appeal. As such, the premise for appell ant’s argument, thatJ. S23014/14

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the Commonwealth offered appellant a plea to third- degree murder, lacks merit. Attorney Faust cannot be held ineffective for failing to communicate a plea offer that never existed. This claim fails. In his second issue on appeal, appellant argues that tr ial counsel was ineffective for failing to present evidence of Dandy W alker Syndrome. 3 According to appellant, trial counsel could have used thi s evidence to establish a defense of diminished capacity.

Diminished capacity is a limited defense, which does not exculpate the defendant from criminal liability entirely, but instead negates the element of specific intent. Commonwealth v. Gibson , 597 Pa. 402, 951 A.2d 1110, 1131-32 (2008) (citations omitted). Thus, a defendant asserting a diminished capacity defense admits responsibility for the underlying action, but contests the degree of culpability based upon his inability to formulate the requisite mental state. Id. at 1132.

3 Ac cording to the National Institutes of Health,

Dandy-Walker Syndrome is a congenital brain malformation involving the cerebellum (an area at the back of the brain that controls movement) and the fluid-filled spaces around it. The key features o f this syndrome are an enlargement of the fourth ventricle (a small channel that allows fluid to flow freely between the upper and lower areas of the brain and spinal cord), a partial or complete absence of the area of the brain between the two cerebellar hemispheres (cerebellar vermis), and cyst formation near the lowest part of the skull. An increase in the size of the fluid spaces surrounding the brain as well as an increase in pressure may also be present. http://www.ninds.nih.gov/disorders/dandywalker/dandywa lker.htmJ. S23014/14

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Commonwealth v. Williams , 980 A.2d 510, 527 (Pa. 2009). According to appellant, he suffers from Dandy Walker S yndrome which causes migraines. (Notes of testimony, 10/3/12 at 12.) This was the reason he was using PCP. ( Id. ) Appellant also testified that Dandy Walker Syndrome can cause an individual to be violent. ( Id. at 15.) Appellant theorizes that the cyst on his brain combined with PC P caused him to kill the victim. ( Id. ) Ms. Faust testified that appellant never told her or co-counsel, Lisa Douple, Esq., that he suffered from Dandy Walker Syndrome. ( Id. at 55.) Appellant only stated that he had headaches. ( Id. ) In fact, appellant admitted that he was not diagnosed with Dandy Walker Syndrome until after trial. ( Id. at 13, 16.) Appellant relies on an MRI report from 1999 which stat es, “Possible Dandy Walker variant.” ( Id. at 55.) However, the report goes on to conclude that it “is probably of no clinical significance.” ( Id. ) Ms. Faust included this report in the medical records which she turn ed over to Dr. Weiss. ( Id. ) Dr. Weiss, a medical doctor, evaluated appellant and never indicated any type of Dandy Walker Syndrome. ( Id. at 57.) Clearly, this issue lacks arguable merit. Appellant a dmits that he was not diagnosed with Dandy Walker Syndrome until after trial, and the 1999 MRI report stated that it was likely of no significance. ( Id. at 55.) Appellant never told his attorneys that he suffered from Dandy Walker Syndrome.J. S23014/14

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They simply had no reason to pursue a diminished capacity defense based on Dandy Walker Syndrome. We also note that aside f rom appellant’s own self-serving testimony, there is no evidence that Dandy Walker Syndrome

causes an individual to become violent. In his third issue on appeal, appellant argues that t rial counsel was ineffective for failing to call certain character witness es on his behalf; namely, Brad Sorkin, Richard Sorkin, and Barbara Smi th. According to appellant, these witnesses would have testified to his g ood character and peaceful and hard- working nature. (Appellant’s brief at 24.)

To establish ineffectiveness for failure to call a witness, Appellant must establish that: (1) the witness existed; (2) the witness was available; (3) counsel was informed of the existence of the witness or counsel should otherwise have known of him; (4) the witness was prepared to cooperate and testify for Appellant at trial; and (5) the absence of the testimony prejudiced Appellant so as to deny him a fair trial. A defendant must establish prejudice by demonstrating that he was denied a fair trial because of the absence of the testimony of the proposed witness.

Commonwealth v. O’Bidos , 849 A.2d 243, 249 (Pa.Super. 2004), appeal

denied , 860 A.2d 123 (Pa. 2004) (citations omitted). Ms. Faust testified that she investigated all three of these witnesses, and none of them would have given testimony particula rly beneficial to appellant’s case. In fact, their testimony could have been extremely damaging. Smith told Ms. Faust that she has known ap pellant for ten years and he has worked for her on and off at her bar. (N otes of testimony,J. S23014/14

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10/3/12 at 58.) Appellant used to be a responsible em ployee but recently, just before this incident, appellant came into the bar and was upset and crying. ( Id. ) Apparently, he had broken up with his girlfriend. ( Id. ) Smith stated that appellant’s behavior was strange and she f elt afraid of appellant. ( Id. ) Richard Sorkin told Ms. Faust that she should speak wit h his son, Brad. ( Id. at 62.) Ms. Faust described Richard as hesitant to discuss a ppellant’s character. ( Id. ) When she talked to Brad, Brad told her that, recen tly, appellant was constantly getting into fights with the cu stomers. ( Id. at 61.) Brad suspected appellant of using drugs and told him th at he had to be clean to work there. ( Id. ) Appellant never came back. ( Id. at 61-62.) Obviously, trial counsel had a good reason for not put ting these witnesses on the stand. It is doubtful they would have testified that appellant was a person of good character and peaceable, as appellant suggests. Furthermore, Ms. Faust explained that she had litigated a pre-trial motion to exclude appellant’s prior convictions for assa ult, including one involving a police officer. ( Id. at 51.) Similar to the instant case, appellant stabbed his girlfriend and a police officer while under the influence of PCP. ( Id. ) The trial court granted appellant’s motion to keep these convictions out. ( Id. at 52.) However, Ms. Faust was concerned that by presen ting character testimony regarding appellant’s peaceful and l aw -abiding nature,J. S23014/14

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she would be opening the door to cross- examination about appellant’s prior convictions for acts of violence. ( Id. at 59-60.)

Ms. Faust’s concerns were well f ounded. Admission of these prior convictions into evidence would have been devastating to appellant’s case. Therefore, she had a reasonable strategic basis for decid ing not to call character witnesses. Furthermore, the underlying claim l acks merit because each of these witnesses, while stating that appellant used to be a reliable and trustworthy employee, told Ms. Faust that recently appellant was acting strangely and in violent fashion. It is doubtful tha t their testimony would have helped appellant’s case. Next, appellant argues that trial counsel was ineffect ive for failing to call him as a witness. According to appellant, trial coun sel never gave him the option of testifying. (Appellant’s brief at 25.)

The decision to testify in one’s own behalf : is ultimately to be made by the accused after full consultation with counsel. In order to support a claim that counsel was ineffective for “failing to call the appellant to the stand,” [the appellant] must demonstrate either that (1) counsel interfered with his client’s freedom to testify, or (2) counsel gave specific advice so unreasonable as to vitiate a knowing and intelligent decision by the client not to testify in his own behalf.

Commonwealth v. Preston , 418 Pa.Super. 125, 613 A.2d 603, 605 (1992 ), appeal denied , 533 Pa. 658, 625 A.2d 1192 (1993) (quoting Commonwealth v. Bazabe , 404 Pa.Super. 408,J. S23014/14

- 12 - 590 A.2d 1298, 1301 (1991), appeal denied , 528 Pa. 635, 598 A.2d 992 (1991)). “A claim of strategic error absent a showing of specific incidents of cou nsel’s impropriety will not satisfy this standard.” Preston , supra at 605.

Commonwealth v. Thomas , 783 A.2d 328, 334-335 (Pa.Super. 2001). Ms. Faust testified that appellant never asked to testi fy at trial. (Notes of testimony, 10/3/12 at 64.) Appellant did testify at the suppression hearing so he was well aware of his rights. ( Id. at 63.) Appellant could not

remember the incident so it is unclear what he would ha ve testified to. ( Id. at 64.) Furthermore, as stated above, appellant had prior convictions for assaulting his girlfriend and a police officer while un der the influence of PCP. Ms. Faust was concerned that if appellant took the stand , these convictions could come in as impeachment evidence. ( Id. ) In fact, appellant testified at the PCRA hearing that after trial counsel advised him that by testifying, he could be opening the door to admission of his prior conv ictions, he “just left

it alone.” Counsel had a reasonable basis for advising appellant not to take the stand. In addition, appellant never requested to test ify. There is no evidence that, as appellant suggests, trial counsel interf ered with his right to testify on his own behalf. The PCRA court’s determinat ion that appellant elected not to testify after consulting with trial counse l is supported by the record. (PCRA court opinion, 1/31/13 at 9.) This cla im fails.J. S23014/14

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In his fifth issue on appeal, appellant claims that t rial counsel did not allow him to participate in his defense. Appellant s tates that he disagreed with voluntary intoxication as a defense, and wanted t o present a defense of diminished capacity. (Appellant’s brief at 27.) Appellant’s claim is belied by the record. Ms. Faust t estified that she keeps a log of serious cases, including appellant’s. (Not es of testimo ny, 10/3/12 at 49.) Either she or Ms. Douple met with ap pellant 31 times. ( Id. ) Appellant was consulted on all decisions of consequence i n the trial, and provided with a copy of all the discovery. ( Id. at 65.) She met with appellant numerous times to discuss the case and trial st rategy. ( Id. ) As discussed above, there was no evidence that appellant suffered from Dandy Walker Syndrome at time of trial and no basis for a diminished capacity defense. There were numerous eyewitnesses to the murder, an d identity was not an issue. Counsel went with the only viable defense they had, which was voluntary intoxication due to appellan t’s ingestion of PCP. Appellant’s claim that he was denied the opportunity t o meaningfully participate in the preparation of his defense is wholly without merit. Finally, appellant argues that trial counsel was ineff ective for failing to object to the trial court’s jury instructions on volunta ry intoxication.

Our standard of review with respect to jury instructions is well settled. When reviewing a challenge to part of a jury instruction, we must review the jury charge as a whole to determine if it is fair and complete. See Commonwealth v. Hawkins , 549 Pa. 352, 390, 701 A.2d 492, 511J. S23014/14

- 14 - (1997). A trial court has wide discretion in phrasing its jury instructions, and “can choose its own words as long as the law is clearly, adequately, and accurately presented to the jury for its consideration.” Id. , at 391, 701 A.2d at 511. The trial court commits an abuse of discretion only when there is an inaccurate statement of the law. See id.

Commonwealth v. Einhorn , 911 A.2d 960, 975 (Pa.Super. 2006), appeal

denied , 920 A.2d 831 (Pa. 2007). During their deliberations, the jury came back with two questions regarding voluntary intoxication; i.e. , “must we consider voluntary intoxication in reaching our verdict?” and “what is the legal definition of voluntary intoxication?” The trial judge decided that ,

the only way that it would be proper for me to address the first question posed would be to restate the definitions of first and third degree murder, reminding the jury of the obligations of the Commonwealth to prove the elements thereof beyond a reasonable doubt, and then immediately in conjunction therewith, offer the instruction on voluntary intoxication as a defense to first degree murder, so that the jury may see the interplay of that defense and the obligations of the Commonwealth to prove certain things beyond a reasonable doubt. Notes of testimony, 10/30/03 at 123-124. Both the Co mmonwealth and defense counsel agreed with the trial court. ( Id. at 124.) The trial court then proceeded to review the definition of first-degr ee murder, the defense of voluntary intoxication, and the elements of third -degree murder. ( Id. at

125 -132.)J. S23014/14

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Appellant complains that the trial court should have instructed the jury that they must consider voluntary intoxication as a defense. (Appella nt’s brief at 29.) However, as the trial court observed, “I t would be improper for me to advance anything that even sounded like an opin ion concerning the facts. And you would appropriately reject any such intr usion upon your role.” (Notes of testimony, 10/30/03 at 125.) Cert ainly the trial court is not going to tell the jury that they “must” consider volunta ry i ntoxication in reaching their verdict, which sounds like a judicial en dorsement of appellant’s defense. Ms. Faust agreed, testifying at th e PCRA hearing that, “I don’t think they’re required to consider anything o r accept anything. The only thing they’re required to do is to accept the law from the judge.” (Notes of testimony, 10/3/12 at 67- 68.) The trial court’s decision to simply

re -read the relevant instructions was not an unreasonable response to the jury’s query, and trial counsel was not ineffecti ve for failing to object

thereto. Furthermore, we observe that in re-instructing the j ury, the trial court emphasized that voluntary intoxication “applies specifica lly to the specific

intent to kill element” of first

- degree murder, and that “The defenda nt is permitted to claim as a defense that he was so overpower ed by intoxicants or drugs that the defendant had lost control of his facu lties, and was incapable of forming the specific intent to kill, which as we have just reviewed is required for first de gree murder.” (Notes of testimony,J. S23014/14

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10/30/03 at 128-129.) The trial court also told the jury that the Commonwealth has the burden of disproving the defense of voluntary intoxication, which may reduce murder from first degree to third degree. ( Id. at 129- 130.) The trial court’s instructions were thorough, comp lete, and an accurate statement of the law, and trial counsel was not ineffective for failing to object. This claim is without arguable merit. For these reasons, we determine that the PCRA court d id not err in denying appellant’s petition.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 8/11/2014