J-S08033-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA
v. : : : : RICHARD WOODWARD, :

: Appellant : No. 1090 WDA 2015 Appeal from the PCRA Order June 25, 2015 in the Court of Common Pleas of Allegheny County, Criminal Division, No(s): CP-02-CR-0012298-2010 BEFORE: STABILE, DUBOW and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 29, 2016 Richard Woodward (“Woodward”) appeals from the Orde r dismissing his first Petition filed pursuant to the Post Convi ction Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm. In its Opinion, the PCRA court concisely set forth the relevant factual and procedural history underlying this appeal. See PCRA Court Opinion, 9/22/15, at 1-4. We adopt the court’s recitation a s though fully set forthJ-S08033-16

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herein. See id. 1, 2 On appeal, Woodward presents the following issue for our review: Did the [PCRA] court err in denying [Woodward’s] PC RA Petition since trial counsel was ineffective for failing to file a suppression motion challenging the voluntariness of [Woodward’s inculpatory] hospital bed statement to police detec tives[,] since the only evidence connecting [Woodward] to the inst ant crimes came from that statement, and [Woodward] was drugge d and incoherent when he gave the statement[,] since he h ad been administered pain killers because of his gunshot wo und? Brief for Appellant at 3 (capitalization omitted).

This Court examines PCRA appeals in the light most favorable to the prevailing party at the PCRA level . Our review is limited to the findings of the PCRA court and th e evidence of record. Additionally, we grant great deference to the factual findings of the PCRA court[,] and will not disturb those findings unless they have no support in the record. In this respect, we will not disturb a PCRA court’s ruling if it is sup ported by evidence of record and is free of legal error. How ever, we afford no deference to its legal conclusions. Commonwealth v. Henkel , 90 A.3d 16, 20 (Pa. Super. 2014) ( en banc ) (internal citations, quotation marks and brackets o mitted).

1 We additionally observe that while Woodward was be ing treated at the hospital for his gunshot wound, of his own accord h e asked to speak with the lead detective investigating the shootings, Margare t Sherwood (“Detective Sherwood”). N.T., 8/29/11-9/2/11 (trial), at 479. On July 15, 2010, five days after the shootings, Detective Sherwood interv iewed Woodward, in his hospital room, in the presence of a fellow detectiv e. Id. Prior to interviewing Woodward, Detective Sherwood read Wood ward his Miranda rights, and gave him an opportunity to read and sig n a Miranda rights waiver form. Id. at 480-81.
2 At trial, Woodward was represented by Christy Fore man, Esquire (“trial counsel”).J-S08033-16

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To prevail on a claim of ineffectiveness of counsel , the PCRA petitioner must demonstrate “(1) that the underlying claim is of arguable merit; (2) that counsel’s course of conduct was without a reas onable basis designed to effectuate his client’s interest; and (3) that he w as prejudiced by counsel’s ineffectiveness[.]” Commonwealth v. Wah , 42 A.3d 335, 338 (Pa. Super. 2012) (citations omitted). The PCRA court may deny an ineffectiveness claim if the petitioner’s evidence fails to meet an y of these prongs. Commonwealth v. Franklin , 990 A.2d 795, 797 (Pa. Super. 2010). Moreover, a PCRA petitioner bears the burden of dem onstrating counsel’s ineffectiveness. Id. ; see also Commonwealth v. Lesko , 15 A.3d 345, 380 (Pa. 2011) (stating that “[w]hen evaluating ine ffectiveness claims, judicial scrutiny of counsel’s performance must be highly deferential.” (citation and internal quotation marks omitted)). Regarding the first prong of the ineffectiveness t est, if the petitioner’s underlying claim lacks arguable merit, his or her d erivative claim of counsel’s ineffectiveness necessarily fails. Commonwealth v. Baumhammers , 92 A.3d 708, 722 n.7 (Pa. 2014). Concerning the secon d prong, our Pennsylvania Supreme Court has stated that [g]enerally, counsel’s assistance is deemed constit utionally effective if he chose a particular course of conduc t that had some reasonable basis designed to effectuate his cl ient’s interests. Where matters of strategy and tactics a re concerned, a finding that a chosen strategy lacked a reasonabl e basis is not warranted unless it can be concluded that an altern ative not chosen offered a potential for success substantiall y greater than the course actually pursued.J-S08033-16

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Commonwealth v. Spotz , 84 A.3d 294, 311 (Pa. 2014) (citations, quotation marks and brackets omitted). Regarding t he third, “prejudice prong,” it must be demonstrated that, absent counse l’s conduct, there is a reasonable probability that the outcome of the proc eedings would have been different. Commonwealth v. Charleston , 94 A.3d 1012, 1019 (Pa. Super. 2014). In considering Woodward’s claim that his inculpato ry statements were subject to suppression for being involuntarily give n, we are mindful of the following. “When a court is called upon to determi ne whether a confession is voluntary and, hence, admissible at trial, it exami nes the totality of the circumstances surrounding the confession to ascerta in whether it is the product of an essentially free and unconstrained ch oice by its maker.” Commonwealth v. Smith , 85 A.3d 530, 537 (Pa. Super. 2014) (citation omitted). “By the same token, the law does not req uire the coddling of those accused of crime. One [] need not be protect ed against his own innate desire to unburden himself.” Commonwealth v. Templin , 795 A.2d 959, 966 (Pa. 2002) (citation omitted). When assessing voluntariness pursuant to the totali ty of the circumstances, a court should look at the following factors: the duration and means of the interrogation; the physic al and psychological state of the accused; the conditions attendant to the detention; the attitude of the interrogator; an d any and all other factors that could drain a person’s ability t o withstand suggestion and coercion. The determination of whet her a confession is voluntary is a conclusion of law and, as such, is subject to plenary review.J-S08033-16

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Commonwealth v. Harrell , 65 A.3d 420, 434 (Pa. Super. 2013) (citations and quotation marks omitted). Woodward argues that the PCRA court erred by failin g to find that trial counsel was ineffective for not seeking to suppress Woodward’s inculpatory statements, as they were “involuntary due to [Woodw ard’s] drugged state during the interview[.]” Brief for Appellant at 24 . According to Woodward, he was so medicated [at the time of making his stat ements] that he was not thinking clearly[,] and [he] has no reco llection of anything that the police put in their report regard ing the interview[.] [Woodward’s] contention is not disput ed by the Commonwealth since there is no indication that the detectives checked to see what medication, or the quantity, [t hat Woodward] had been prescribed by doctors, or checke d with hospital personnel to determine if [he] was lucid e nough to interview. Id. at 23-24. Woodward avers that “[t]he evidence rega rding [his] alleged statements to police was exceedingly damaging since it detailed his involvement in the instant crimes, and[,] without t hat evidence[,] there is a great likelihood that he would have never been conv icted of any of the instant crimes, but especially [second-degree m]urd er[.]” Id. at 23. Moreover, Woodward contends that, contrary to trial counsel’s position regarding her defense strategy, she had no reasonab le basis for failing to suppress Woodward’s involuntary statements. Id. at 24. In its Opinion, the PCRA court adeptly addressed Wo odward’s claims and determined that trial counsel was not ineffecti ve. See PCRA Court Opinion, 9/22/15, at 6-8. In sum, the PCRA court d etermined thatJ-S08033-16

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Woodward had failed to establish any of the three p rongs of the ineffectiveness test, since (1) the mere fact that Woodward may have been on pain medication at the time of his statements, 3 absent more, is not sufficient to warrant suppression; (2) trial counse l articulated a reasonable basis for making the conscious and strategic decisi on not to seek suppression; and (3) the outcome of Woodward’s tria l would not have been different had trial counsel sought suppression. Id. at 6-7. The PCRA court’s analysis is supported by the record and the law, an d we agree with its determination that Woodward failed to meet his burd en to prove that trial counsel was ineffective. Accordingly, we affirm on this basis in rejecting Woodward’s sole issue on appeal. See PCRA Court Opinion, 9/22/15, at 6-

3 Woodward failed to advance any evidence that he wa s, in fact, on pain medication at the time of his statements to Detecti ve Sherwood.J-S08033-16

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8. 4 As we conclude that the PCRA court neither abused its discretion nor committed an error of law, we affirm the Order dism issing Woodward’s PCRA Petition. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 2/29/2016

4 As an addendum, we observe that Woodward failed to establish that his inculpatory statements were involuntary and subject to suppression. Contrary to Woodward’s above assertion, Detective S herwood’s testimony shows that not only was Woodward alert and responsi ve to questioning, but he was also able to communicate normally, including in his attempt to initially disclaim his association with the robbers , before changing his story upon being presented with evidence establishing his involvement. See N.T., 8/29/11-9/2/11, at 480-87; see also Commonwealth v. McQuaid , 417 A.2d 1210, 1213 (Pa. Super. 1980) (wherein this Cou rt held that the inculpatory statement given by the defendant to pol ice was voluntary notwithstanding that it was made in a hospital sett ing where the defendant was being treated for a gunshot wound to the head, as the defendant had spoken after being read his Miranda rights and appeared to be alert and responsive to the detectives’ questions); Commonwealth v. Hunt , 398 A.2d 690, 693 (Pa. Super. 1979) ( en banc ) (where the appellant was interviewed in his hospital bed while being treated for a stab wound, holding that his inculpatory statements were voluntary, sin ce appellant was alert and responsive. The Court also rejected the appellant’ s argument that “the interrogating officer should have made inquiry as t o appellant’s medical condition and what medication had been administered to him[.]”).8 18 Pa

. C.S

. A. §2705 - 4 counts 5 18 Pa.C.S.A. §3701(a)(l)(l)

6 18 Pa

. C.S

. A. §3502(c)(l)

7 18 Pa.C.S.A. §6106(a)(l) 1 18 Pa

. C.S.A. § 2 50l(a)
2 18 P a. C.S

. A. §901 (a) - 5 counts
3 18 Pa

. C.S.A. §2702.lA- 3 counts
4 18 P a .C.S

. A. §2702(a)(2)- 5 counts Carrying a Firearm Without a License," Recklessly Endangering Another Person, 8 Law Enforcement Officer,3 Aggravated Assault of a Police Officer , 4 Robbery, 5 The Defendant was charged with Criminal Homicide , 1 Criminal Attempt,2 Assault appeal and, therefore, the judgment of sentence must be affirmed. review of the record reveals that the Defendant has failed to present any me ritorious dismissed his Amended Post Conviction Relief Act Petition without a hearing

. The Defendant has appealed from the Order of Court dated June 25 , 2015, OPINION Defendant RICHARD WOODWARD , III, COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, CRIMINAL DIVISION

CC: 201012298 V

. Circulated 01/29/2016 03:06 PM9 18 Pa

. C.S

. A

. §903(a)(l)
1 0 18 Pa.C.S

. A. §2702(a)(2) Conspiracy ? and Aggravated Assault.!? Prior to trial, the Aggravated Assault, Assault of a Police Officer, Assault of a Law Enforcement Officer and Criminal Attempt - ...... ,_,_,, , were withdrawn. Following a jury trial, the Defendant was found guilty of second-degree murder and the remaining charges. On December 15, 2011, the Defendant appeared before this Court and was sentenced ; to mandatory term of life imprisonment. Post-Sentence Motions were timely filed and were uc.JLUl,;,,U by operation of law on April 20, 2012. The judgment of sentence was affirmed by the Court on June 3, 2012. A timely Petition for Allowance of Appeal was filed and was our Supreme Court on December 19, 2013. No further action was taken until July 24, 2014, when the Defendant filed a prose Conviction Relief Act Petition. Counsel was appointed to represent the Defendant Amended Petition followed. After reviewing the Petition and record , and giving the notice of its intent to do so, this Court dismissed the Amended Petition without a hearing. appeal followed. By way of a brief review , the evidence presented at trial established that Hainesworth and her four (4) year old son, Kyere , lived at 2340 East Hills Drive in the Pittsburgh

. Ms. Hainesworth's boyfriend, An thony Lemon, stayed at the house v, ... ,a., J ,vuu.u, was known to keep drugs and money in the house

. In the early morning hours of July 11 , 2010, the Defendant, Richard Woodward, with two other men, co - Defendants Tyree Gaines and Amir Ferguson, broke into

2residence for the purpose of stealing the drugs and money they knew to be in the house.

three (3) men initially approached the front door and knocked, then left. Hainesworth , at home watching movies with her friends and son, looked out of the peep-hole in the saw the men wearing black clothing and scarves over their faces. She called another Terry Johnson, who had just left , and asked him to look around the area. anyone and returned to Hainesworth's residence. Approximately fifteen minutes later, the three men knocked again. This time looked out the peep-hole and after seeing the three (3) men, he instructed everyone to go and hide and to call the police. The group hid in Kyere's room , some inside the closet and behind the bed. Hainesworth was on the phone with 911 when the men broke the front down and entered the house

. The men searched the downstairs level of the home , but unable to find the drugs and money . Two (2) of the men went upstairs and broke down the u.u.._,. , . .
_ ;; · s. - , ,: of the bedroom where everyone was hiding. They demanded that Hainesworth tell them vvu'"'"" " :· , the drugs and money were, and when she did not , they grabbed Kyere, put the gun to his and asked him where the items were. Kyere directed them to an air vent, where they found """"'P "· money . They then let Kyere go, but put the gun to Hainesworth's head and forced her to them to the drugs. Hainesworth and the men went downstairs, when the Defendant , who been standing by the patio door with an assault rifle, yelled that the police had arrived. ran upstairs. The Defendant ran into the bedroom , kicked out the window screen and jumped the window. Shots were fired at the police from inside the house and the officers returned

. The Defendant was shot in the back as he was fleeing the scene.

34

must demonstrate, by a preponderance of the evidence, that: (1) the underlying claim In order to establish a claim for the ineffective assistance of counsel, "a PCRA this claim is meritless. Motion to Suppress the Defendant's statement to the police. A review of the record reveals On appeal , the Defendant argues that trial counsel was ineffective for failing to $17,450.00

. of the scene revealed a bag with 4 7 bricks of heroin, having a street value of saw the police approach, then ran upstairs , jumped out the window and ran . A subsequent search, he stayed downstairs with the assault rifle and acted as a lookout. He shouted would not name, and went to the house to conduct a robbery. The men were driven to the that the police had already learned , the Defendant said that he met up with two men whom buy drugs and ended up in the middle of a shootout. When confronted with other interviewed by Detective Margaret Sherwood , and initially told her that he went to the wound

. Several days later , he asked to speak to the lead Detective on the case. The Defendant was transported to Presbyterian Hospital for treatment for his

.... ~ • . u .. ,J. able to escape the police, but were apprehended several days later. to find and aid Hainesworth and was shot in the hand

. Eventually , Gaines and Ferguson fled, she was hit with a bullet fired from the house. Johnson came out of the room in an <>1"1 · ,,m,r'\-r pursuit of the men . He encountered Hainesworth and told her to get out of the house. Downstairs , City of Pittsburgh Police Officer Steven Sywyj had entered the

by a woman in a dark-colored vehicle. They broke into the house by kicking the door5

1989). met."' Commonwealth v. Khalil, 806 A.2d 415, 421-2 (Pa.Super. 2002). "With regard to tht f H "\ ( - '.} : · : : (~ ' - !' 

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suppression. She stated: Moreover , the record reflects that trial counsel made a strategic decision not to medication is not sufficient to warrant suppression of his confession. assertions regarding the nature of the interrogation, does not claim that he was provide a sufficient basis for suppression of the confession. The Defendant makes no The fact that the Defendant was receiving pain medication for his injury does not his bullet wound. now asserts that his " confession" was involuntary because he was receiving pain lookout but ran through the house, jumped out a window and fled when the police arrived. but when confronted with evidence from the surveillance video, he then stated that he acted 

### as her. He initially stated that he had gone to the house to buy drugs and ended up in a As noted above, the Defendant contacted Detective Sherwood and asked to speak Commonwealth v. Harrell, 65 A.3d 420, 433-34 (Pa. 2014), inte rnal citations omitted other factors that could drain a person's ability to withstand suggestion and coercion. factors: the duration and means of the interrogation; the physical and psychological state of {

. accused; the conditions attendant to the detention; the attitude of the interrogator; and any and voluntariness pursuant to the total i ty of the circumstances , a court should look at the preponderance of the evidence that the defendant confessed voluntarily ' ... 'When """'"'"'"'"'L»F, unconstrained decision to confess. The Commonwealth has the burden of proving was so manipulative or coercive that it deprived the defendant of his ability to make a free

Under these circumstances, the use manipulated, beaten or otherwise coerced.had suppression been sought. Insofar as the Defendant utterly failed in establishing

motion would have been granted or that the outcome of the trial would have been any UU.J..V .L " VUS strategic basis for her decision and the Defendant has not established either that a way with regard to a possible suppression motion. Counsel has demonstrated a Ultimately, the Defendant has not established that trial counsel was ineffective in suppressed. for a renunciation defense, which would not have been available to her if the statement had oeen v; result. Moreover, Ms

. Foreman is also correct that the Defendant's statement provided a granted a Motion to Suppress based on these facts, and so there would not have been a decision not to
. Ms. Foreman was correct in that, as discussed above , this Court would not have a reasonable basis for not seeking suppression and so made a conscious and Ms. Foreman ' s statement, read in conjunction with the record , demonstrates that ( Amended PCRA Petition, p. 20). I did in fact tell him that I did not want to suppress the statement. First, while he may have had some medication , from the details he could relate about giving the statement to the police, that led me to believe he gave the statement (statements I should say) knowingly. Plus, I know Judge McDaniel would never suppress the statement as there was just not enough to say it was involuntary. More importantly, the ONLY defense I had to his Felony Murder case was renunciation. I told him that I did not want the statement suppressed as that was the best evidence I had to try to argue that while he may have participated in the Robbery, that he had renounced that participation in that crime before the homicide took place by kicking out the 2nd story window and jumping out to run away and subsequently [was] shot in the back. The placement of the gunshot wound would substantiate he was shot while running away PRIOR to Ms

. Hainesworth being shot by the other co-defendant from the upstairs window

. It is the defense I used at trial , and while it unfortunately did not work, it was the ONLY thing I had as far as felony murder.

7Dated: September 22, 2015 ( 

# ---~ BY THE COURT: must be affirmed

. Accordingly, for the above reasons of fact and law, this Court's Order of June 25, 201 Petition without a hearing. This claim must fail. ineffective claim, this Court was well within its discretion in dismissing the Amended

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