J-S74011-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ARCHIE WARD

Appellant No. 664 EDA 2016

Appeal from the PCRA Order December 9, 2010

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0000002-2008

BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 12, 2016

This is an appeal from the order of the Court of Common Pleas of 

Philadelphia County dismissing Appellant Archie Ward’s pro se petition 

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9546. In this pro se appeal, Appellant raises several claims of 

ineffectiveness of counsel. After careful review, we affirm.

Appellant was charged with attempted murder, aggravated assault, 

recklessly endangering another person, and possession of an instrument of 

crime in connection with his November 9, 2007 stabbing of the victim, Julie 

Robinson, who is also the mother of Appellant’s two children. Appellant 

stabbed the victim forty-nine times, inflicting wounds on the victim’s 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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shoulder, stomach, chest, arms, and legs. Despite her injuries, the victim 

was able to escape from Appellant’s attack and seek help at a neighbor’s 

apartment, where she called police. Just minutes later, police arrested 

Appellant, whose clothing was covered in blood. Appellant admitted that he 

had stabbed the victim as she “was trying to take [his] kids away.” N.T. 

7/24/08, at 8-10. Afterwards, the officers discovered Appellant’s bloody 

knife in the dirt.

On July 28, 2008, a jury convicted Appellant of the aforementioned 

crimes. On September 25, 2008, the trial court sentenced Appellant to ten 

to twenty years’ imprisonment to be followed by five years’ probation. 

Appellant filed a notice of appeal, but it was subsequently discontinued on 

December 18, 2008.

On November 30, 2009, Appellant filed a timely pro se PCRA petition.1 

The PCRA court appointed counsel, who subsequently filed a petition to 

withdraw and a no-merit letter pursuant to Commonwealth v. Finley, 550 

A.2d 213 (Pa.Super. 1988). The PCRA court allowed counsel to withdraw 

and dismissed Appellant’s petition on December 9, 2010.

____________________________________________

1 A PCRA petition, including a second or subsequent petition, must be filed 

within one year of the date that the judgment of sentence becomes final. 

See 42 Pa.C.S. § 9545(b)(1).
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On February 22, 2011, Appellant filed the instant PCRA petition, 

essentially asking that his PCRA appellate rights be reinstated nunc pro tunc

as he did not receive notice that his first PCRA petition was denied. On 

January 29, 2016, the PCRA court reinstated Appellant’s appellate rights by 

agreement of the parties. On February 11, 2016, Appellant filed this timely 

notice of appeal.

Appellant raises the following issues for our review:

1. Whether the Trial Court erred in denying Appellant’s PCRA 

Petition where Appellant’s trial counsel was ineffective for 

failing to preserve issues of a jury instruction on simple 

assault and diminished capacity.

2. Trial counsel was ineffective for failing to request a mistrial 

when a juror said to complainant that she was sorry for what 

happened to the complainant.

Appellant’s Brief at 5.

In reviewing the lower court’s decision to deny Appellant’s PCRA 

petition, we examine whether the PCRA court's determination “is supported 

by the record and free of legal error.” Commonwealth v. Mitchell, --- Pa. 

---, 141 A.3d 1277, 1283–84 (2016). In order to be eligible for PCRA relief, 

the petitioner must prove by a preponderance of the evidence that his 

conviction or sentence resulted from one or more of the enumerated 

circumstances found in 42 Pa.C.S. § 9543(a)(2), which includes the 

ineffective assistance of counsel. 

“It is well-established that counsel is presumed effective, and to rebut 

that presumption, the PCRA petitioner must demonstrate that counsel's 
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performance was deficient and that such deficiency prejudiced him.” 

Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 132 (2012) (citing 

Strickland v. Washington, 466 U.S. 688, 687-91 (1984)). To prevail on 

an ineffectiveness claim, the petitioner has the burden to prove that “(1) the 

underlying substantive claim has arguable merit; (2) counsel whose 

effectiveness is being challenged did not have a reasonable basis for his or 

her actions or failure to act; and (3) the petitioner suffered prejudice as a 

result of counsel's deficient performance.” Commonwealth v. Sneed, 616 

Pa. 1, 17, 45 A.3d 1096, 1106 (2012) (quoting Commonwealth v. Pierce,

567 Pa. 186, 786 A.2d 203, 213 (2001)). “A petitioner establishes prejudice 

when he demonstrates “that there is a reasonable probability that, but for 

counsel's unprofessional errors, the result of the proceeding would have 

been different.” Commonwealth v. Johnson, 600 Pa. 329, 345–46, 966 

A.2d 523, 532–33 (2009) (quoting Strickland, 466 U.S. at 694). The 

failure to satisfy any one of the three prongs will cause the entire claim to 

fail. Sneed, 616 Pa. at 18, 45 A.3d at 1106 (citation omitted).

First, Appellant claims that counsel was ineffective in failing to seek 

jury instructions on simple assault and diminished capacity. While generally 

criminal defendants are entitled to instructions they request, our Supreme 

Court has emphasized that the defendant “must, therefore, establish that 

the trial evidence would reasonably support a verdict based on the desired 

charge and may not claim entitlement to an instruction that has no basis in 

the evidence presented during trial.” Commonwealth v. Hairston, 624 Pa. 
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143, 163, 84 A.3d 657, 668, cert. denied sub nom. Hairston v. 

Pennsylvania, 135 S. Ct. 164, 190 L. Ed. 2d 118 (2014) (citation omitted) 

(concluding that the appellant was not entitled to an instruction on seconddegree felony murder in his prosecution for first-degree murder when the 

record did not show he killed the victims in the course of committing a 

felony). The Supreme Court explained that “instructing the jury on legal 

principles that cannot rationally be applied to the facts presented at trial 

may confuse them and place obstacles in the path of a just verdict.” Id. 

We agree with the trial court’s assessment that there was no evidence 

to support a charge of simple assault when Appellant stabbed the victim 

forty-nine times, inflicting wounds on her chest, stomach, shoulders, arms, 

and legs. Given these circumstances, no jury would rationally convict 

Appellant of simple assault instead of aggravated assault for this violent 

attack. See 18 Pa.C.S. § 2702(a)(1),(4) (aggravated assault occurs when a 

defendant attempts to cause serious bodily injury or intentionally causes 

bodily injury with a deadly weapon).

In a similar manner, although Appellant claims he was under the 

influence of PCP when he attacked the victim, a jury charge on voluntary 

intoxication was not warranted. Our courts have made clear that “a defense 

of diminished capacity grounded in voluntary intoxication is a very limited 

defense, which does not exculpate the defendant from criminal liability, but, 

if successfully advanced, mitigates first-degree murder to third-degree 
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murder.” Commonwealth v. Bardo, 629 Pa. 352, 415, 105 A.3d 678, 716 

(2014). Our Legislature has consistently provided the following:

Neither voluntary intoxication nor voluntary drugged 

condition is a defense to a criminal charge, nor may evidence of 

such conditions be introduced to negative the element of intent 

of the offense, except that evidence of such intoxication or 

drugged condition of the defendant may be offered by the 

defendant whenever it is relevant to reduce murder from a 

higher degree to a lower degree of murder.

18 Pa.C.S. § 308. This Court has specifically held that voluntary intoxication 

is not available as a defense to a charge of attempted murder. See 

Commonwealth v. Williams, 730 A.2d 507, 511 (Pa.Super. 1999). As a 

result, Counsel cannot be found ineffective for failing to raise meritless 

claims. Commonwealth v. Staton, --- Pa. ---, 120 A.3d 277, 284 (2015). 

Appellant also claims counsel was ineffective in failing to ask for a 

mistrial after the prosecutor reported to the trial court that a jury member 

was overheard expressing sympathy to the victim, stating, “I’m really sorry 

for what happened to you.” N.T. Trial, 7/28/08, at 11-13. On direct review, 

our courts evaluate a trial court’s denial of a motion for a mistrial pursuant 

to an abuse of discretion standard. More specifically, 

[E]x parte contact between jurors and witnesses is viewed with 

disfavor. Commonwealth v. Brown, 567 Pa. 272, 786 A.2d 

961, 972 (2001). There is, however, no per se rule in this 

Commonwealth requiring a mistrial anytime there is improper or 

inadvertent contact between a juror and a witness. See 

Commonwealth v. Mosley, 535 Pa. 549, 637 A.2d 246, 249 

(1993) (declining to adopt per se rule which would require 

disqualification of juror anytime there is ex parte contact 

between that juror and witness). Whether such contact warrants 
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a mistrial is a matter addressed primarily to the discretion of the 

trial court. Brown, 786 A.2d at 972 (citation omitted).

Commonwealth v. Szakal, 50 A.3d 210, 220 (Pa.Super. 2012) (quoting 

Commonwealth v. Tharp, 574 Pa. 202, 830 A.2d 519, 532–33 (2003)). 

Moreover, the defendant must show that he was prejudiced by the juror’s 

contact with the witness. 

In this case, the PCRA court concluded that trial counsel had a 

strategic basis for choosing not to request a mistrial as counsel noted on the 

record that he was pleased with the way the case had been presented and 

wished to proceed to a verdict. N.T. Trial, 7/28/08, at 11-13. Before doing 

so, trial counsel discussed this decision with Appellant and conducted an oral 

colloquy in which Appellant agreed on the record to this strategy despite the 

juror’s remarks. Id. We note that Appellant does not show how he was 

prejudiced by the juror’s remark when he admitted that he repeatedly 

stabbed the victim and the only issue at trial was what crime Appellant 

would be convicted of for the attack. As Appellant was not deprived of a fair 

trial, counsel cannot be deemed ineffective in failing to request a mistrial. 

See Staton, supra.

For the foregoing reasons, we affirm the PCRA court’s order dismissing 

Appellant’s petition.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/12/2016