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[U] Commonwealth v. Elias

Superior Court of Pennsylvania

October 23, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
CRAIG ELIAS, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order February 17, 2012 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0005482-2002, CP-02-CR-0005909-2002, CP-02-CR-0005952-2002

BEFORE: BOWES, MUNDY, and COLVILLE, [*] JJ.

MEMORANDUM

BOWES, J.

Craig Elias appeals from the February 17, 2012 order denying him PCRA relief. We affirm.

Appellant was found guilty following a joint jury trial with Jared Henkel and Jared Lischner of first-degree murder, two counts of kidnapping, and one count each of robbery, aggravated assault, simple assault, and abuse of a corpse. The convictions arose from Appellant's participation in the abductions and beatings of Anthony Brownlee and Andrew Jones. During the criminal episode, Jones was strangled and killed. The trial court provided a comprehensive outline of the events, which we will summarize.

The three co-defendants and two victims were all involved in a joint drug dealing enterprise. In 2002, Henkel rented 220 Sycamore Street, Pittsburgh, to store drugs and money, which were placed in two safes. Henkel, Appellant and Jones had keys to the house. On March 22, 2002, Henkel discovered that the safes had been taken from the stash house. Henkel then called Jones, who was with Brownlee, and told Jones and Brownlee to come to Sycamore Street. Meanwhile, Appellant, Henkel, and Lischner met Matthew Henkel, Jared Henkel's brother. Matthew Henkel was in possession of duct tape, which he had been asked to obtain. Appellant, Jared Henkel, and Lischner took the tape and proceeded to Sycamore Street, where they met Brownlee and Jones. The five men discussed the missing safes and possible robbery suspects.

Appellant pointedly asked Brownlee who had stolen the safes, and, when Brownlee responded that he did not know, Appellant knocked him to the floor, began to beat him, and dragged him down the steps and into the kitchen. Jones was already in that room and was being held face down on the floor by Lischner. Henkel and Lischner bound Jones' hands and feet with the duct tape while Appellant did the same to Brownlee. The two victims were then taken upstairs and placed in different rooms, where they were questioned by all three defendants for several hours.

Appellant beat and threatened the two men and demanded that they disclose the location of the two safes. Appellant also choked Brownlee three times with a rope. Eventually, Brownlee was allowed to call a friend, who brought the three defendants $4, 000 to secure his and Jones' release. After receiving the cash, the three co-defendants still refused to let Brownlee and Jones leave.

Jared Henkel called his brother Matthew Henkel and asked him to borrow a pick-up truck and bring it, along with cement, to the Sycamore residence. Matthew obtained the truck but did not have money for the cement. He went to the Sycamore house with that vehicle and waited on the first floor with his brother Jared. While there, Matthew observed

Appellant and Lischner repeatedly traveling up and down the stairs. Jared told Matthew that the three defendants believed that someone from inside the drug enterprise had stolen the safes. At one point, the three co- defendants conversed on the first floor. They all agreed that Jones was a dangerous person who would seek revenge for his torture if released but that Brownlee was not a threat to their safety. Brownlee was freed.

Appellant told Matthew to obtain weights from his father's house and return with them, and Matthew complied by obtaining a fifty-pound weight. At Appellant's command, Matthew went upstairs and helped Appellant wrap Jones' body in garbage bags. Appellant and Matthew loaded the body into the pick-up truck, and traveled to Steubenville, Ohio. During the drive to Ohio, Appellant admitted to Matthew that he had killed Jones. Appellant and Matthew disposed of Jones' body, which was weighed down with chains and the weight, by throwing it over a bridge. In exchange for immunity from prosecution, Matthew Henkel became a cooperating witness, showed police where Jones' body was thrown from the bridge in Ohio, and testified at trial against Appellant, Jared Henkel, and Lischner.

At trial, counsel for the three co-defendants delved heavily into matters concerning Matthew Henkel's mental health. Following Appellant's convictions, we affirmed the judgment of sentence. Commonwealth v. Henkel, 938 A.2d 433, 436-37 (Pa.Super. 2007) (citations omitted). We rejected Appellant's claims that the trial court erred in refusing to order a pre-trial mental health evaluation of Matthew Henkel, in concluding that Matthew was competent to testify, and in refusing to compel disclosure to Appellant of Matthew's mental health treatment records. In that decision, we noted that Appellant's arguments were premised, in part, upon factual averments that, just prior to trial, Matthew was suicidal and was hospitalized for depression. On August 25, 2008, our Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Elias, 955 A.2d 356 (Pa. 2008).

Appellant filed a timely PCRA petition, counsel was appointed, and counsel filed an amended petition. Following a hearing, the PCRA petition was denied on February 17, 2012. Appellant raises these contentions on appeal:

Whether trial counsel rendered unreasonable advice to defendant which vitiated a knowing and intelligent decision to testify on his own behalf, in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution?
Whether the PCRA court err in dismissing petitioner's claim that the evidence of Commonwealth witness and admitted co-conspirator Matthew Henkel's suicidal ideation and subsequent pre-trial hospitalization discovered at the post-trial evidentiary hearing on remand required that a new trial be granted?
Whether the PCRA court erred in dismissing petitioner's claim that trial counsel was ineffective for failing to properly argue for the production of Matthew Henkel's mental health records?

Appellant's brief at 3.

Initially, we note, "On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court's findings are supported by the record and without legal error." Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013). Appellant first avers that counsel improperly advised him not to testify at trial. As we noted in Commonwealth v. Michaud, 70 A.3d 862 (Pa.Super. 2013), we presume that counsel was effective, and the defendant bears the burden of proving the contrary by a preponderance of the evidence. To present a successful ineffectiveness claim, the PCRA petitioner must "demonstrate that: (1) the claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) counsel's ineffectiveness prejudiced him." Id.

After review of the facts, briefs, and pertinent law, we reject Appellant's first allegation of error, which was the subject of the PCRA hearing, based upon the thorough and well-reasoned opinion dated February 17, 2012 of the distinguished Judge Jeffrey A. Manning.[1]

Appellant's second position is that he should be granted a new trial based upon after-discovered evidence. The following procedural history is pertinent to this inquiry. During litigation of Appellant's direct appeal, allegations were made that Matthew Henkel's recollection of the events surrounding the murder flowed from hypnosis performed by Matthew's mother. In order to ascertain the veracity of that allegation, we remanded for an evidentiary hearing. At that hearing, it was revealed that, prior to trial, Matthew had expressed suicidal thoughts and was hospitalized for depression.

In the present appeal, Appellant now maintains that those two facts entitle him to a new trial. To be eligible for relief under the PCRA, the PCRA petitioner must establish that his allegation of error has not been waived. 42 Pa.C.S. § 9543(a)(3) (to be eligible for PCRA relief, the petitioner must plead and prove by a preponderance of the evidence that the allegation of error has not been waived). "For the purposes of [the PCRA], an issue is waived if the petitioner failed to raise it and if it could have been raised . . . on appeal[.]". 42 Pa.C.S. § 9544 (b).

In this case, the two facts at issue were discovered during a hearing on remand in a direct appeal wherein we retained jurisdiction. Once the facts were revealed at the remand hearing, Appellant could have raised his present averment that they entitled him to a new trial on direct appeal. Indeed, as noted, on appeal, Appellant relied upon those two "after-discovered facts" to bolster arguments that were presented therein. Hence, Appellant's second contention raised in this appeal is waived. Commonwealth v. Hall, 872 A.2d 1177, 1183 n.5 (Pa. 2005) (finding waiver of issues that could have been raised on direct appeal but were not). Furthermore, Appellant does not raise this position in the context of ineffectiveness of appellate counsel for failing to present an after-discovered-evidence claim on appeal, which would overcome the finding of waiver. See Commonwealth v. Tedford, 960 A.2d 1 (Pa. 2008). Hence, we decline to consider Appellant's second contention.

Appellant's final position in this appeal is that prior counsel was ineffective in the manner in which he argued, during direct appeal, that Appellant should have been accorded access to Matthew Henckel's mental health records. Initially, we observe that, to be eligible for relief under the PCRA, the PCRA petitioner must establish that his allegation of error has not been previously litigated. Commonwealth v. Huddleston, 55 A.3d 1217 (Pa.Super. 2012); see 42 Pa.C.S. § 9543(a)(3) (to be eligible for PCRA relief, the petitioner must plead and prove by a preponderance of the evidence that the allegation of error has not been previously litigated); 42 Pa.C.S. § 9544(a)(2) ("an issue has been previously litigated if . . . the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue[.]"). In this case, on direct appeal, we addressed on the merits Appellant's position that Matthew Henckel's mental health records should have been released to him.

However, our Supreme Court examined the PCRA's concept of previous litigation in Commonwealth v. Collins, 888 A.2d 564 (Pa. 2005). Therein, the Court held that the word "issue" in §§ 9543(a)(3) and 9544(a)(2) "refers to the discrete legal ground that was forwarded on direct appeal and would have entitled the defendant to relief." Id. at 570. Under Collins, ineffectiveness claims are considered distinct from the issue raised on direct appeal and are to be analyzed under the above-delineated tripartite ineffectiveness test. The Collins Court did observe that, ultimately, the defendant's position regarding ineffectiveness "may fail on the arguable merit or prejudice prong for the reasons discussed on direct appeal[.]" Id. at 573. Nevertheless, "a Sixth Amendment claim raises a distinct issue for purposes of the PCRA and must be treated as such." Id.

Our High Court subsequently clarified that, under Collins, "the relevant inquiry when determining whether a PCRA petitioner is properly asserting a new and distinct issue, rather than simply re-labeling and reasserting a previously litigated one, is whether the ineffectiveness claim constitutes a 'discrete legal ground or merely an alternative theory in support of the same underlying issue that was raised on direct appeal.'" Commonwealth v. Gwynn, 943 A.2d 940, 944-45 (Pa. 2008) (quoting, in part, Collins, supra at 570).

In the present case, Appellant maintains that prior counsel should have argued that Matthew Henkel waived his privilege in the mental health records because he placed those records at issue in this matter. That issue was not addressed in the prior appeal and is thus distinct. We therefore consider its merits.

Appellant maintains Matthew Henkel waived the applicable privilege when "Matthew Henkel disclosed the facts of his treatment and the mental health condition from which he suffers during his testimony at the evidentiary hearing on remand. EHT 6/6/07 (Vol III), 66, 76-78." Appellant's brief at 48. As we noted in Gormley v. Edgar, 995 A.2d 1197, 1204 (Pa.Super. 2010) (footnote omitted):

"The purpose of the psychologist/patient privilege is to aid in the effective treatment of the client by encouraging the patient to disclose information fully and freely without fear of public disclosure." Zane v. Friends Hospital, [836 A.2d 25, 33 (Pa. 2003)]. The privilege is based upon a strong public policy designed to encourage and promote effective treatment and to insulate the client's private thoughts from public disclosure. Kalenevich v. Finger, 407 Pa.Super. 431, 595 A.2d 1224 (1991). This Court holds this privilege in the highest regard, recognizing that such confidential statements are the key to the deepest, most intimate thoughts of an individual seeking solace and treatment. However, such confidential communications are only protected to the same extent as those between an attorney and his client. The privilege is not absolute; it may be waived. Our Commonwealth Court in Rost v. State Board of Psychology, 659 A.2d 626, 629 (Pa.Cmwlth. 1995), held that the privilege may be waived in civil actions "where the client places the confidential information at issue in the case." In those circumstances, the client himself or herself has turned the key to voluntarily unlock those privileged communications.

Waiver is found in the civil setting[2] when a plaintiff seeks compensation in a personal injury action for mental health injuries allegedly caused by the tortfeasor. Gormley, supra; see also Kraus v. Taylor, 710 A.2d 1142 (Pa.Super. 1998). In those situations, the plaintiff is considered to have placed his prior mental health history at issue in the case by seeking recovery for mental-health related damages. In such a setting, we have employed a waiver analysis.

However, the record herein fails to sustain any finding that Matthew Henckel voluntarily placed his mental health at issue at trial in this matter. Rather, he asserted his privilege in his mental health treatment records at trial. N.T. Trial, 10/14-21/03, at 896. In maintaining that the witness waived the applicable privilege, Appellant solely relies upon Matthew's testimony at the evidentiary hearing ordered by this Court during Appellant's direct appeal. We hold that Matthew did not voluntarily place his mental health at issue by answering questions posed to him at the evidentiary hearing. This conclusion flows from the fact that the hearing was ordered by this Court based on allegations raised by Appellant and his co-defendants that Matthew's memory of the facts of the crime was induced through hypnosis. Appellant and his cohorts, not Matthew, placed his mental health at issue in this case. Since we reject Appellant's position that Matthew waived his privilege, we conclude that prior counsel was not ineffective for failing to raise this position on direct appeal.

Order affirmed.

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