J-S51037-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOSHUA HERDER,

Appellant No. 317 EDA 2015

Appeal from the PCRA Order January 26, 2015

in the Court of Common Pleas of Philadelphia County

Criminal Division at Nos.: CP-51-CR-0007152-2008

CP-51-CR-0007157-2008

BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 15, 2015

Appellant, Joshua Herder, appeals from the order of January 26, 2015, 

which dismissed, following a hearing, his first, counseled petition brought 

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. 

On appeal, Appellant claims he received ineffective assistance of trial 

counsel. We affirm.

We take the underlying facts and procedural history in this matter 

from our review of the certified record. 

On October 17, 2007, Appellant, while residing at a psychiatric halfway 

house, stabbed his roommate, Robert Kitchens, to death.1 (See 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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Commonwealth’s Brief, at 2; see also N.T. Trial; 3/23/09, at 25-28). 

Appellant maintained that he acted in self-defense because, after refusing to 

engage in a homosexual relationship with Kitchens, Kitchens attacked him 

with a knife and attempted to assault him. (See Commonwealth’s Brief, at 

3; see also N.T. Trial, 3/23/09, at 25-28). 

On December 7, 2007, while incarcerated at the Philadelphia Industrial 

Correctional Center, awaiting trial on Kitchens’ murder, Appellant strangled 

his cellmate, Charles Kirkland. (See N.T. Trial, 3/19/09, at 57-59; N.T. 

Trial, 3/23/09, at 29-33). Appellant claimed he acted in self-defense 

because Kirkland had been trying to involve him in a homosexual 

relationship and attempted to assault him that evening. (See N.T. Trial, 

3/19/09, at 57-58; see also N.T. Trial, 3/23/09, at 29-33).

On March 5, 2009, after Dr. John O’Brien found Appellant competent 

to stand trial, Appellant waived his right to a jury trial in return for the 

Commonwealth agreeing not to seek the death penalty. (See N.T. 

Preliminary Hearing, 3/05/09, at 10-12). On March 23, 2009, following trial, 

(Footnote Continued) _______________________

1 The trial transcript[s] pertaining to the murder of Kitchens are not included 

in the certified record. In an effort to obtain them, we contacted the trial 

court, who was unable to locate them. This Court has clearly stated that it is 

Appellant’s responsibility to ensure that the certified record contains all 

documents necessary to ensure that we are able to review his claims. See 

Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008); Pa.R.A.P. 

1926; Pa.R.A.P. 1931.

 
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the court found Appellant guilty of two counts each of murder in the first 

degree, and of possessing an instrument of crime. (See N.T. Trial, 3/23/09, 

at 46). The trial court immediately sentenced Appellant to two consecutive 

terms of incarceration of life without parole; it did not impose any sentence 

on the remaining charges. (See id. at 47). Appellant did not file a direct 

appeal.

On December 24, 2009, Appellant, acting pro se, filed the instant, 

timely PCRA petition. Following multiple changes of counsel, on September 

11, 2014, counsel filed a second amended PCRA petition. The 

Commonwealth filed a motion to dismiss on October 2, 2014. 

A PCRA hearing took place on January 26, 2015. At that hearing, 

Appellant called Greg Blender, an attorney from the Philadelphia Public 

Defenders’ Mental Health Unit, as a witness. (See N.T. PCRA Hearing, 

1/26/15, at 5). Attorney Blender was involved in the pre-trial proceedings 

but did not represent Appellant at trial. (See id. at 6-7, 15). Appellant did 

not call any of the three attorneys who represented him at trial as witnesses.

Attorney Blender testified that they elected not to prepare a guilty but 

mentally ill defense because he believed that it was “worse than a straight 

guilty plea.” (Id. at 9; see also id. at 8-9). However, he stated that they 

believed they had a viable insanity defense but could not present it because 

Appellant refused to consider it. (See id. at 10-15). Instead, Appellant 

insisted on claiming self-defense, which counsel believed had no chance of 
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succeeding. (See id. at 11-12, 15, 17, 21-22, 25-26). Attorney Blender 

explained that they did not request a formal pre-trial psychological 

examination because: (1) they believed that Appellant was competent to 

stand trial; and (2) they would have to turn over that report to the 

Commonwealth prior to trial and they were concerned about possible 

damaging information contained in it. (See id. at 19-20). He noted that 

two mental health professionals employed by the Philadelphia Public 

Defenders’ Office did do informal evaluations of Appellant and that the Court 

Mental Health Unit Psychiatrist, Dr. O’Brien, found Appellant competent to 

stand trial. (See id. at 13, 19, 23-24). 

Appellant testified on his own behalf at the PCRA hearing and claimed 

that counsel told him that he would get a maximum of fifteen years of 

incarceration. (See id. at 26, 28). He acknowledged that counsel did speak 

with him about an insanity defense. (See id.). When cross-examined, 

Appellant agreed that he did not want to go to a mental hospital but wanted 

to be exonerated. (See id. at 29). 

Immediately following the evidentiary hearing, the PCRA court denied 

Appellant’s petition. The instant, timely appeal followed. On February 8, 

2015, Appellant filed a timely statement of errors complained of on appeal. 

See Pa.R.A.P. 1925(b). On March 25, 2015, the PCRA court issued an 

opinion. See Pa.R.A.P. 1925(a).

On appeal, Appellant raises the following question for our review:
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I. Were trial counsel ineffective for failing to seek a pretrial 

psychological examination [for] Appellant because Appellant was 

known to be mentally ill?

(Appellant’s Brief, at 4).

Here, Appellant claims he received ineffective assistance of trial 

counsel. (See id. at 8-15). It is long settled that “[o]ur standard of review

from the grant or denial of post-conviction relief is limited to examining 

whether the PCRA court’s determination is supported by the evidence of 

record and whether it is free of legal error. We will not disturb findings that 

are supported by the record.” Commonwealth v. Ousley, 21 A.3d 1238, 

1242 (Pa. Super. 2011), appeal denied, 30 A.3d 487 (Pa. 2011) (citations 

omitted). “The court’s scope of review is limited to the findings of the PCRA 

court and the evidence on the record of the PCRA court’s hearing, viewed in 

the light most favorable to the prevailing party.” Commonwealth v. 

Duffey, 889 A.2d 56, 61 (Pa. 2005) (citation omitted). Further, to be 

eligible for relief pursuant to the PCRA, Appellant must establish that his 

conviction or sentence resulted from one or more of the enumerated errors 

or defects found in Section § 9543(a)(2). He must also establish that the 

issues raised in the PCRA petition have not been previously litigated or 

waived. See 42 Pa.C.S.A. § 9543(a)(3). An allegation of error “is waived if 

the petitioner could have raised it but failed to do so before trial, at trial, 

during unitary review, on appeal or in a prior state postconviction 

proceeding.” 42 Pa.C.S.A. § 9544(b). 
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Appellant specifically contends that counsel was ineffective for not 

seeking a pre-trial psychological evaluation of him, which would have 

supported an insanity defense and, instead, presenting a non-meritorious 

claim of self-defense. (See Appellant’s Brief, at 8). 

Counsel is presumed effective, and an appellant bears the burden to 

prove otherwise. See Commonwealth v. McDermitt, 66 A.3d 810, 813 

(Pa. Super. 2013). The test for ineffective assistance of counsel is the same 

under both the Federal and Pennsylvania Constitutions. See Strickland v. 

Washington, 466 U.S. 668, 687 (1984); Commonwealth v. Jones, 815 

A.2d 598, 611 (Pa. 2002). An appellant must demonstrate that: (1) his 

underlying claim is of arguable merit; (2) the particular course of conduct 

pursued by counsel did not have some reasonable basis designed to 

effectuate his interests; and (3) but for counsel’s ineffectiveness, there is a 

reasonable probability that the outcome of the proceedings would have been 

different. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001), 

abrogated on other grounds by Commonwealth v. Grant, 813 A.2d 726 

(Pa. 2002). “A failure to satisfy any prong of the test for ineffectiveness will 

require rejection of the claim.” Jones, supra at 611 (citation omitted). 

Initially we note that in order to be found not guilty by reason of 

insanity, a defendant must prove:

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 
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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.A. § 315(b). Further, when the defendant does not present a 

defense of insanity, he cannot present evidence in support of finding him 

guilty but mentally ill. See Commonwealth v. Henry, 569 A.2d 929, 935-

36 (Pa. 1990), cert. denied, 499 U.S. 931 (1991), abrogated on other 

grounds by Commonwealth v. Wilson, 861 A.2d 919, 933 (Pa. 2004); 

Commonwealth v. Sasse, 921 A.2d 1229, 1238 n.6 (Pa. Super. 2007), 

appeal denied, 938 A.2d 1052 (Pa. 2007).

In the instant matter, as discussed in detail by the PCRA court in its 

opinion, counsel wished to present an insanity defense, but Appellant 

refused to consider it. (See PCRA Court Opinion, 3/25/15, at 4-6; see also 

N.T. PCRA Hearing, 1/26/15, at 10-15). Our Supreme Court found that 

counsel was not ineffective for not overriding the client’s wishes in order to 

present an insanity defense. See Commonwealth v. Cross, 634 A.2d 173 

(Pa. 1993), cert. denied, 513 U.S. 833 (1994), The Pennsylvania Supreme 

Court stated: 

. . . To plead the defense of insanity suggests that the defendant 

committed the act, but was not legally culpable. Here, appellant 

maintained that he had not committed the murders. Therefore, 

it would have been improper for his attorneys to introduce any 

evidence of insanity.

* * *

Both the [Pennsylvania Rules of Professional Conduct] and 

the Comment [to it] make clear that the client is to decide the 

goal of counsel’s representation. Moreover, the Rule does not 
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furnish counsel with the right to override what the client 

considers to be in his best interest. This is particularly true 

where it has been determined that the client is competent to 

stand trial.

To be competent for trial a defendant must be capable of 

understanding the nature and objective of proceedings against 

him, and be able to cooperate with his legal representative in 

presentation of his defense. A determination of competency to 

stand trial would support a determination that appellant was 

equipped with the same “lucidity” required under 

[Commonwealth v.] Mizell [,425 A.2d 424, 426 (Pa. 1981)]. 

Hence, appellant was mentally capable of making decisions 

about his defense, and counsel properly complied with his wishes 

regarding the goals of his representation.

Id. (some citations omitted). 

Here, as discussed above, the uncontradicted evidence at the PCRA 

hearing demonstrated that Appellant refused to consider an insanity defense 

because he wanted to argue self-defense. (See N.T. PCRA Hearing, 

1/26/15, at 10-15, 17, 21-22, 25-26). Appellant’s own behavior at the 

PCRA hearing supports this, because he interrupted the proceedings on four 

separate occasions to proclaim he was innocent of the crime, had been 

molested by the victims, and wanted to get out jail. (See id. at 10, 17-18, 

23). Further, Appellant testified that he did not want to go to a mental 

hospital but wanted to present a defense that would result in his immediate 

release from incarceration. (See id. at 29). We will not find counsel 

ineffective for failing to override the client’s express wishes to purse selfdefense rather than an insanity defense in the absence of evidence that 

Appellant was incompetent to stand trial. See Cross, supra at 175-76. 
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To the extent that Appellant may be claiming that counsel was 

ineffective for not pursuing a pre-trial psychological examination which 

would have demonstrated his incompetence to stand trial, Appellant has 

failed to present any evidence to support a claim of incompetency. (See 

Appellant’s Brief, at 11-13). At the PCRA hearing, Attorney Blender, an 

attorney with substantial experience defending the mentally ill, testified in 

detail as to why he believed Appellant was competent to stand trial. (See 

N.T. PCRA Hearing, 1/26/15, at 14, 19-21). Dr. John O’Brien, a psychiatrist 

with the Court Mental Health Unit, evaluated Appellant prior to trial and 

found him competent to stand trial. (See N.T. Preliminary Hearing, 

3/05/09, at 3-4). 

In order to support his claim of incompetency Appellant relies on a 

psychological evaluation conducted in 2013 and 2014. (See Second 

Amended PCRA Petition, 9/11/14, Appendix A, Letter from Dr. Stephen E. 

Samuel to Stephen O’Hanlon, Esquire, 8/06/14, at pp. 1-9; Appellant’s Brief, 

at 11-13). However, while the evaluation demonstrates that Appellant is 

mentally ill, something that is not in dispute, it does not demonstrate that he 

was incompetent to stand trial or to choose his defense. (See Second 

Amended PCRA Petition, 9/11/14, Appendix A, Letter from Dr. Stephen E. 

Samuel to Stephen O’Hanlon, Esquire, 8/06/14, at pp. 1-9). Rather, Dr. 

Samuel made no assessment as to Appellant’s competency to stand trial in 
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2009. (See id.). With respect to his state of mind at the time of the 

incident, Dr. Samuel stated:

With regard to the issue of [Appellant’s] state of mind at 

the time of the incidents[,] which resulted in the charges, I 

would state the following within a reasonable degree of 

psychological certainty: [Appellant’s] current state of psychosis 

makes a retrospective assessment of his state of mind at the 

time of the killings unreliable. To do so would be based on 

ungrounded speculation. Although [Appellant’s] diagnosis is 

clear, and while his diagnosis implies a certain, if not variable 

clinical course, retrospectively establishing a case for mental 

incapacity, or even a period of lucid capacity in him in 2007, 

solely on the basis of his current diagnosis and mental state, is 

unreliable. 

(Id. at 9). Thus, Appellant’s claim that, but for counsel’s failure to request a 

pre-trial psychological evaluation he would have been found incompetent to 

stand trial and that, therefore, counsel could have presented an insanity 

defense, lacks merit.

Accordingly, for the reasons discussed above we find that PCRA court’s 

determination is supported by the evidence of record and is free of legal 

error. See Ousley, supra at 1242. Therefore, we affirm the denial of 

Appellant’s PCRA petition. 

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/15/2015