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Home My WebLink About97-1577 CriminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 97-1577 CRIMINAL CHARGE: (1) CRIMINAL HOMICIDE - MURDER OF THE FIRST DEGREE (2) CRIMINAL HOMICIDE - MURDER OF THE FIRST DEGREE (3) FIREARMS NOT TO BE CARRIED WITHOUT A LICENSE ROBERT LEE STOTT AFFIANT: DET. DAVID FONES IN RE: POST-CONVICTION RELIEF ACT PETITION BEFORE HESS, J. OPINION AND ORDER In this matter, the defendant is before the court requesting relief under the Post- Conviction Relief Act, 42 Pa.C.S.A. 9541 et seq. On May 27, 1998, the defendant was found guilty of two counts of murder in the first degree. He was subsequently sentenced to consecutive life sentences. This petition was filed following the exhaustion of the defendant's rights of direct appeal. The issue raised by the petitioner is a narrow one; namely, he contends that he received ineffective assistance of trial counsel in the presentation of a defense of diminished capacity. The successful presentation of such a defense would have resulted, potentially, in findings of murder of the third degree. According to the PCRA, the ineffective assistance of counsel must have "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S.A. § 9543(a)(2)(ii). Pennsylvania case law is clear that in order to prove a claim for ineffective assistance of counsel, the defendant must prove, by a preponderance of the 97-1577 CRIMINAL evidence, the following: (1) that there is merit to the underlying claim; (2) that counsel had no reasonable basis for his or her course of conduct; and (3) that there is a reasonable probability that, but for the act or omission challenged, the outcome of the proceeding would have been different. Com. v. Rivers, 567 Pa. 239, 246, 786 A.2d 923,927 (2001). It appears that the defendant in the present action has failed to meet all of the aforementioned requirements. In this case, the defendant mounted his defense on the testimony of two psychologists. He now seeks to establish that his counsel was ineffective because only psychological testimony, as opposed to psychiatric testimony, was presented in his defense of diminished capacity. It is apparent that in Pennsylvania, diminished capacity is an extremely limited defense. Com. v. Weirtsteirt, 499 Pa. 106, 451 A.2d 1344 (1982). If proven, it negates the intent to kill, thus mitigating first degree murder to third degree. Com. v. Legg, 551 Pa. 437, 444, 711 A.2d 430, 433 (1998). Defendant states in his Memorandum of Law that the defense of diminished capacity must be proven through psychiatric evidence. Defendant relies upon Com. v. McCullum, 558 Pa. 590, 738 A.2d 1007 (1999), a case that was decided well after the Defendant's trial. The court in McCullum states that "[d]iminished capacity is an extremely limited defense that requires psychiatric testimony concerning a defendant's mental disorders that specifically affect the 'cognitive functions [of deliberation and premeditation] necessary to formulate the specific intent' to kill." Id. at 1009. The court in McCullum bases this statement on language found in Com. v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), as well as the court's holding in Weirtsteirt, supra. Zettlemoyer and Weittste#t were both decided prior to Defendant's trial. 2 97-1577 CRIMINAL IN Zettlemoyer and Weinstein, the court never states that psychiatric testimony, as opposed to psychological testimony, is required to prove diminished capacity. These two cases merely stand for the proposition that if psychiatric testimony is to be admitted, it must directly address the defendant's state of mind, specifically regarding his or her intent to kill. 500 Pa. at 28, 454 A.2d at 943. IN Weinstein, the court states that it would in the future accept certain psychiatric testimony as relevant to the question of whether the defendant was able to form the specific intent to kill. ~ IN Zettlemoyer, the court dealt with the testimony of a psychologist, Dr. Stanley Schneider. IN concluding that the testimony in Zettlemoyer did not rise to the level of establishing the defense of diminished capacity, the Zettlemoyer court referred to testimony in support of this defense as "psychiatric/psychological" testimony. Nowhere in Zettlemoyer or any of the other cited Pennsylvania cases was diminished capacity testimony rejected because is was psychological and not psychiatric. We have been able to locate one case, in the United States, which appears to be on point. IN In re Brown, 143 Wash.2d 431, 21 P.3d 687 (2001), the petitioner claimed that his counsel should have presented psychiatric testimony, because a psychologist cannot legally prescribe medication. The court denied petitioner's request for relief. Petitioner cannot under this claim establish either deficient performance by his counsel or resulting prejudice... Petitioner apparently claims that because his own witness could not legally prescribe ~ "While announcing that this Court would, in the future, accept psychiatric testimony on a defendant's diminished capacity to think and, therefore, to form the intent to kill requisite to a finding of first degree murder..." 499 Pa. at 112, 451 A.2d at 1347. 3 97-1577 CRIMINAL medication, his credibility as an expert was somehow impaired. Dr. Maiuro was eminently qualified to render an opinion whether Petitioner suffered from a mental illness which would have excused his violent behavior... Id. at 450, 21 P.3d at 697.98. IN this case, the petitioner has not established by a preponderance of the evidence that trial counsel had no reasonable basis for his course of conduct.2 "PCRA claims are not merely direct appeal claims that are made at a later stage of the proceedings, cloaked in a boilerplate assertion of counsel's ineffectiveness. IN essence, they are extraordinary assertions that the system broke down." Rivers, supra, 786 A.2d at 929. It may be that a person convicted of a crime has had several lawyers and the performance of these lawyers was in some respect imperfect. But a criminal defendant is not entitled to a perfect trial and it seems likely that if the accused were to be represent [sic] by fifty lawyers, some aspect of the performance of each could be described as "ineffective." But the accused and society are entitled to a final determination, an end to the proceedings that will be opened only in the case of a colorable due process claim significantly implicating the truth determining process, which, were it unaddressed by the Court, could have the effect of imprisoning an innocent person. Id. at 932. IN this case, psychological testimony notwithstanding, the jury found that the defendant murdered two people at a time when it was his fully formed intent to kill them. Nothing at our 2 He has also offered no testimony in support of the contention that if psychiatric testimony had been presented, the outcome of the trial would have been different. 4 97-1577 CRIMINAL recem PCRA proceeding suggests that the jury erred in its conclusion. ORDER AND NOW, this day of March, 2003, the motion of the defendant for post- conviction relief is DENIED. It is directed that notice hereof be forwarded to the defendant by certified mail, return receipt requested. The defendant is herewith advised of his right to perfect an appeal to the Superior Court within thirty (30) days hereof. BY THE COURT, Jaime Keating, Esquire Chief Deputy District Attorney Erika P. Kreisman, Esquire 1034 Fifth Avenue Suite 400 Pittsburgh, PA 15219 :rlm Kevin A. Hess, J. COMMONWEALTH VS. ROBERT LEESTOTT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 97-1577 CRIMINAL CHARGE: (1) CRIMINAL HOMICIDE - MURDER OF THE FIRST DEGREE (2) CRIMINAL HOMICIDE - MURDER OF THE FIRST DEGREE (3) FIREARMS NOT TO BE CARRIED WITHOUT A LICENSE AFFIANT: DET. DAVID FONES IN RE: POST-CONVICTION RELIEF ACT PETITION BEFORE HESS, J. ORDER AND NOW, this day of March, 2003, the motion of the defendant for post- conviction relief is DENIED. It is directed that notice hereof be forwarded to the defendant by certified mail, return receipt requested. The defendant is herewith advised of his right to perfect an appeal to the Superior Court within thirty (30) days hereof. BY THE COURT, Jaime Keating, Esquire Chief Deputy District Attorney Erika P. Kreisman, Esquire 1034 Fifth Avenue Suite 400 Kevin A. Hess, J. 97-1577 CRIMINAL Pittsburgh, PA 15219 :rlm 7