January 23, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
DAVID THOMAS Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
DAVID THOMAS Appellant
Appeal from the Order Entered March 5, 2012 In the Court of Common Pleas of Potter County Criminal Division at No(s): CP-53-CR-0000160-2008, CP-53-CR-0000156-2008
BEFORE: BENDER, J., LAZARUS, J., and STRASSBURGER, J [*]
David Thomas appeals from the trial court's order denying his petition, following a hearing, filed pursuant to the Post Conviction Relief Act (PCRA).On appeal, Thomas raises two ineffectiveness of counsel claims; specifically he alleges that counsel was ineffective for failing to suppress his confession where he was intoxicated and coerced by the police at the time of his statement and that counsel should have ordered a mental health examination prior to his guilty plea hearing. After careful review, we affirm.
On July 1, 2009, Thomas tendered a guilty plea to three counts of Rape of a Child,  a first-degree felony, and the court sentenced him to serve an aggregate term of 30-60 years in prison. On November 16, 2009, the court granted Thomas leave to withdraw his guilty plea and appointed new counsel, Mr. Robert Kuhl. Attorney Kuhl reserved Thomas the right to file omnibus pretrial motions. Subsequently, Thomas was assigned new counsel, Mr. James T. Rague. After meeting with Attorney Rague and discussing the risks and benefits of going to trial, Thomas entered the same guilty plea as on July 1, 2009.
Under the terms of Thomas' plea agreement, he was referred to the Pennsylvania Sexual Offenders Assessment Board to determine whether he should be classified as a sexually violent predator (SVP). In his clinical assessment report, Dr. John Addis, a psychologist and member of the Sexual Offender Assessment Board, stated that Thomas's cognitive ability was borderline-average. Doctor Addis' report explains that cognitive ability measures an individual's auditory memory, word knowledge, verbal reasoning, and quantitative problem solving. In conclusion, Doctor Addis classified Thomas as an SVP (diagnosis, pedophile), stating that there was no additional evidence that Thomas had any mental illness.
At his March 3rd plea hearing, the trial judge held a full oral colloquy with Thomas, informing him that he is presumed innocent until proven guilty and of his right to a trial by jury. See Pa.R.Crim.P. 590. Thomas expressed complete understanding of the charges filed against him and also informed the trial judge that his participation in the plea process was voluntary and that he was satisfied with his counsel. Thomas made no mention of the police coercion he subsequently raised in his PCRA petition. After Thomas pled guilty to the charged offenses, the original sentence of 30 to 60 years of confinement was reimposed.
On March 11, 2011, Thomas filed the instant PCRA petition; a hearing on Thomas' petition was held on January 16, 2012. After the hearing, the trial court denied Thomas' petition. He now appeals and raises the following issues for our review:
(1) Trial counsel failed to file an omnibus pretrial motion to suppression [sic] where trial counsel's actions were not reasonable and the Appellant's claim to suppress voluntary statements had arguable merit as was prejudicial and would have impacted the trial court's ultimate verdict?
(2) Trial counsel failed to file a request for a mental health examination which would have provided for a possible diminished capacity defense or would have been a mitigating circumstance at sentencing which was prejudicial to the Appellant and would have impacted the trial court's ultimate sentence?
Brief of Appellant, at 18
To prevail on an ineffectiveness claim, a petitioner must plead and prove, by a preponderance of the evidence, three elements: (1) the underlying legal claim has arguable merit; (2) counsel had no reasonable basis for his or her action or inaction; and (3) the petitioner suffered prejudice because of counsel's action or inaction. Commonwealth v. Spotz, 47 A.3d 63, 76 (Pa. 2012) (citation omitted).
Thomas first claims that counsel was ineffective for failing to file a motion to suppress the voluntary statements he made to police officers while in custody for two reasons: (1) he was under the influence of alcohol; and (2) he was pressured into giving a confession as a result of verbal and physical threats made by law enforcement officers.
Our Supreme Court has held that the recent imbibing of alcohol or the existence of a hangover does not make a confession inadmissible, but goes to the weight to be accorded to it. Commonwealth v. Smith, 291 A.2d 103, 104 (Pa. 1972). Intoxication is a factor to be considered, but it is not sufficient in and of itself to render a confession involuntary. Commonwealth v. Jones, 322 A.2d 119, 125 (Pa. 1974). In order to determine whether a confession is voluntary under such conditions, one must assess whether the defendant had sufficient mental capacity to know what he was saying and to have voluntarily intended to say it. Commonwealth v. Culberson, 358 A.2d 416, 417 (Pa. 1976).
At Thomas' PCRA hearing, Attorneys Petrosky and Rague both testified that they had discussed a motion to suppress with Thomas and had considered Thomas' claim of intoxication as it related to his confession. The PCRA court found Attorneys Petrosky and Rague credible, and, because the record supports this determination, we decline to disturb that finding. At the PCRA hearing, the district attorney explained to the judge that Thomas' intoxication claim was unfounded because the confession took place one day after his arrest while Thomas was detained in the county jail where he would have had no access to alcohol. During their discussions about a motion to suppress, Attorneys Petrosky and Rague also reviewed the Commonwealth's evidence against Thomas in order to evaluate whether a successful motion to suppress would alter the outcome of the trial. The evidence against Thomas included testimony from two victims and an eyewitness, as well as incriminating statements contained in medical reports.
We shall not second-guess Attorneys Petrosky and Rague's professional judgment, where they were in the best position to assess the strength of the Commonwealth's case against Thomas and where the record supports their decision to forego filing a motion to suppress Thomas' confession. Both attorneys reasonably believed that a motion to suppress was likely to fail based on case law and the weakness of Thomas's intoxication claim. Both attorneys also reviewed the evidence against Thomas and reasoned that even a successful motion to suppress would not alter the outcome of the trial. Thomas has failed to satisfy any of the three prongs required to establish ineffective counsel based on his voluntary intoxication and, therefore, we find this claim is without merit. Spotz, supra.
Thomas also argues that trial counsel should have filed a motion to suppress his confession because it was induced by the verbal and physical threats of law enforcement officers. An issue is waived under the PCRA if the petitioner could have raised the issue but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post conviction proceeding. 42 Pa.C.S.A. § 9544. Thomas' claim of police coercion was never raised prior to his PCRA petition. Thomas failed to raise his claim of police coercion prior to or during either of his two plea hearings. Therefore, the issue has been waived. See Jones, 570 A.2d at 1344.
Finally, Thomas claims that counsel was ineffective for not requesting he undergo a mental health examination so that he might assert a diminished capacity defense or raise diminished capacity as a mitigating factor during the sentencing phase of his trial.
The test to be applied in determining the legal sufficiency of a defendant's mental capacity to stand trial, or enter a plea, is his ability to comprehend his position as one accused of a crime and to cooperate with his counsel in making a rational defense. Commonwealth v. Harris, 243 A.2d 408, 409 (Pa. 1968). In the present case, Thomas never made any mention of a mental health issue nor did he appear to any of his three trial attorneys to lack comprehension of his legal situation. At the PCRA hearing, Attorneys Petrosky and Rague both testified that when they met with Thomas he showed no signs of a mental health issue or of mental deficiency. N.T. PCRA Hearing, 1/26/2012 at 11, 32-33. Attorney Rague further testified that, in his opinion, Thomas fully understood the criminal proceedings and the terms of his plea agreement. Id. at 35. At his March 3rd guilty plea hearing, Thomas himself acknowledged his full understanding of the criminal proceeding. N.T. Guilty Plea Hearing, 3/3/2012 at 4-9, 12-17. Furthermore, the attorneys' testimony at the PCRA hearing revealed that on two separate occasions Thomas made the reasoned decision to strike a plea bargain in order to protect his children from the stress of testifying against their father. N.T. PCRA Hearing, 1/26/2012 at 5, 37.
Here, not only did counsel have no reason to believe that Thomas was mentally incapable of entering a guilty plea, a psychological assessment of Thomas further validated Thomas' mental competency. Following the July 1st plea proceeding, Dr. Addis performed a clinical assessment of Thomas and found no evidence that Thomas had any mental illness, except for pedophilia. Doctor Addis determined that Thomas possessed borderline-average cognitive ability. In addition, Thomas' presentence investigation report (PSI) did not indicate that he had any psychiatric problems or a history thereof. Id. at 36. Given Thomas' behavior, his PSI, and Dr. Addis' report, Attorneys Petrosky and Rague would have had no reasonable basis upon which to order Thomas to submit to a mental health examination. See Commonwealth v. Melton, 351 A.2d 221, 224 (Pa. 1976) (defendant's PCRA claim of diminished mental capacity to enter plea refuted by court-appointed psychologist who testified defendant was mentally capable to stand trial and by counsel who testified defendant displayed above-average mental competence while testifying before court at plea hearing). Order affirmed.