J. S23014/14 

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 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

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 11, 2014 

 Larry Wilson appeals from the order of January 31, 2013, denying his 

PCRA1 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 to 

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Commonwealth v. Wilson, No. 1783 EDA 2004, unpublished 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, 2005). Following a jury 

trial, appellant was found guilty of first-degree murder, criminal trespass, 

 

1

 Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. 
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and possession of an instrument of crime. On December 22, 2003, appellant 

was sentenced to life imprisonment for first-degree murder and concurrent 

sentences for criminal trespass and PIC. This court affirmed judgment of 

sentence on September 22, 2005; and on May 1, 2007, our 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 appellant’s behalf. 

An evidentiary hearing was held on October 3, 2012, at 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 January 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[?]
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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 basis 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). In
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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 different.’” 

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 

confidence 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 effective and 

place upon Appellant the burden of proving otherwise. Counsel cannot be 

found ineffective for failing to pursue a baseless or meritless claim.” 

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004) 

(citations omitted). 

 In his first issue on appeal, appellant claims that trial counsel, 

Ann Faust, Esq., was ineffective for failing to communicate 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. 
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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 you 

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). 
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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 testified 

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 adamant that he wanted a 

jury trial. (Id. at 54.) Attorney Faust testified that if they were offered 

third-degree murder, they would have done everything in their power to get 

appellant to take it, particularly because juries generally do not like 

intoxication defenses. (Id.) Attorney Faust had no idea why Dr. Weiss was 

under the misapprehension that a plea down to third-degree murder was 

offered. (Id.) Attorney Faust testified that the prosecuting attorney 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 murder. (Id. at 53-54.) 

 The PCRA court found as a fact that no plea bargain was ever offered 

to appellant. (PCRA court opinion, 1/31/13 at 4.) The court’s finding is 

supported by the record, including Attorney Faust’s testimony, and will not 

be disturbed on appeal. As such, the premise for appellant’s argument, that 
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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 trial counsel was 

ineffective for failing to present evidence of Dandy Walker Syndrome.3

 

According to appellant, trial counsel could have used this 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 According 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 of 

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/dandywalker.htm 
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Commonwealth v. Williams, 980 A.2d 510, 527 (Pa. 2009). 

 According to appellant, he suffers from Dandy Walker Syndrome 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 PCP 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 states, “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 turned 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 admits 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. 
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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 from 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 trial counsel was 

ineffective for failing to call certain character witnesses on his behalf; 

namely, Brad Sorkin, Richard Sorkin, and Barbara Smith. According to 

appellant, these witnesses would have testified to his good 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 particularly beneficial to 

appellant’s case. In fact, their testimony could have been extremely 

damaging. Smith told Ms. Faust that she has known appellant for ten years 

and he has worked for her on and off at her bar. (Notes of testimony, 
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10/3/12 at 58.) Appellant used to be a responsible employee 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 felt afraid of appellant. 

(Id.) 

 Richard Sorkin told Ms. Faust that she should speak with his son, Brad. 

(Id. at 62.) Ms. Faust described Richard as hesitant to discuss appellant’s 

character. (Id.) When she talked to Brad, Brad told her that, recently, 

appellant was constantly getting into fights with the customers. (Id. at 61.) 

Brad suspected appellant of using drugs and told him that 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 putting 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 assault, 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 presenting 

character testimony regarding appellant’s peaceful and law-abiding nature, 
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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 founded. Admission of these prior 

convictions into evidence would have been devastating to appellant’s case. 

Therefore, she had a reasonable strategic basis for deciding not to call 

character witnesses. Furthermore, the underlying claim lacks 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 that their testimony would 

have helped appellant’s case. 

 Next, appellant argues that trial counsel was ineffective for failing to 

call him as a witness. According to appellant, trial counsel 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, 
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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 

counsel’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 testify 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 have testified to. (Id.

at 64.) Furthermore, as stated above, appellant had prior convictions for 

assaulting his girlfriend and a police officer while under 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 convictions, he “just left 

it alone.” 

 Counsel had a reasonable basis for advising appellant not to take the 

stand. In addition, appellant never requested to testify. There is no 

evidence that, as appellant suggests, trial counsel interfered with his right to 

testify on his own behalf. The PCRA court’s determination that appellant 

elected not to testify after consulting with trial counsel is supported by the 

record. (PCRA court opinion, 1/31/13 at 9.) This claim fails. 
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 In his fifth issue on appeal, appellant claims that trial counsel did not 

allow him to participate in his defense. Appellant states that he disagreed 

with voluntary intoxication as a defense, and wanted to present a defense of 

diminished capacity. (Appellant’s brief at 27.)

Appellant’s claim is belied by the record. Ms. Faust testified that she 

keeps a log of serious cases, including appellant’s. (Notes of testimony, 

10/3/12 at 49.) Either she or Ms. Douple met with appellant 31 times. 

(Id.) Appellant was consulted on all decisions of consequence in 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 strategy. (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, and 

identity was not an issue. Counsel went with the only viable defense they 

had, which was voluntary intoxication due to appellant’s ingestion of PCP. 

Appellant’s claim that he was denied the opportunity to meaningfully 

participate in the preparation of his defense is wholly without merit. 

 Finally, appellant argues that trial counsel was ineffective for failing to 

object to the trial court’s jury instructions on voluntary 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, 511 
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(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 Commonwealth and 

defense counsel agreed with the trial court. (Id. at 124.) The trial court 

then proceeded to review the definition of first-degree murder, the defense 

of voluntary intoxication, and the elements of third-degree murder. (Id. at 

125-132.) 
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 Appellant complains that the trial court should have instructed the jury 

that they must consider voluntary intoxication as a defense. (Appellant’s 

brief at 29.) However, as the trial court observed, “It would be improper for 

me to advance anything that even sounded like an opinion concerning the 

facts. And you would appropriately reject any such intrusion upon your 

role.” (Notes of testimony, 10/30/03 at 125.) Certainly the trial court is not 

going to tell the jury that they “must” consider voluntary intoxication in 

reaching their verdict, which sounds like a judicial endorsement of 

appellant’s defense. Ms. Faust agreed, testifying at the PCRA hearing that, 

“I don’t think they’re required to consider anything or 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 ineffective for failing to object 

thereto. 

 Furthermore, we observe that in re-instructing the jury, the trial court 

emphasized that voluntary intoxication “applies specifically to the specific 

intent to kill element” of first-degree murder, and that “The defendant is 

permitted to claim as a defense that he was so overpowered by intoxicants 

or drugs that the defendant had lost control of his faculties, and was 

incapable of forming the specific intent to kill, which as we have just 

reviewed is required for first degree murder.” (Notes of testimony, 
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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, complete, 

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 did not err in 

denying appellant’s petition. 

 Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/11/2014