Com. v. Chew

• Court: Superior Court of Pennsylvania
• Decided: August 19, 2021
• Docket: 2358 EDA 2020
• Status: Unpublished

Opinion

J-A15043-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : NOELLE THERESA CHEW : : Appellant : No. 2358 EDA 2020

Appeal from the PCRA Order Entered November 2, 2020 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0001661-2017

BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: Filed: August 19, 2021

Noelle Theresa Chew (“Chew”) appeals from the Order dismissing her

Petition for relief pursuant to the Post Conviction Relief Act (“PCRA”). See 42

Pa.C.S.A. §§ 9541-9546. We affirm.

We adopt the PCRA court’s summarization of the procedural and factual

background of this case as though fully set forth herein. See PCRA Court

Opinion, 1/15/21, at 1-7. Additionally, we briefly summarize the underlying

history as follows.

On January 20, 2017, Chew consumed approximately three Long Island

Iced Tea beverages, as well as at least one shot of Fireball Cinnamon whiskey,

while at a bar with friends. Shortly thereafter, Chew argued with her

paramour, who urged her not to drive. Nevertheless, Chew departed in her

vehicle. Thereafter, Chew drove on the wrong side of the road, on J-A15043-21

Pennsylvania State Route 309.1 Multiple drivers attempted to stop Chew by

honking their horns, and many vehicles had to take evasive maneuvers to

avoid Chew’s vehicle. Additionally, Chew’s paramour and Chew’s aunt

attempted to call and text Chew to persuade Chew to stop driving. After

several minutes, Chew collided head-on with a vehicle operated by Damian

Toalombo, resulting in his death.

Chew filed a timely Notice of Appeal and a Pa.R.A.P. 1925(b) Concise

Statement of errors complained of on appeal.

Chew raises the following claim for our review:

Did the [PCRA] court err in dismissing [Chew]’s PCRA Petition where the evidence showed that trial counsel[, Richard Fink, Esquire (“Attorney Fink”),] was ineffective for failing to investigate and present evidence of [Chew]’s mental illness at trial to prove that she lacked the malice necessary to support a conviction for third[-]degree murder?

Brief for Appellant at 4.

We review an order [dismissing] a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court’s ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court’s decision on any grounds if the record supports it. We grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Further, where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary. ____________________________________________

1 State Route 309 is divided into two southbound lanes and two northbound

lanes, which are divided by a concrete barrier. Chew was driving in the southbound direction, in the northbound lanes.

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Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

Chew argues that Attorney Fink should have presented evidence of her

mental health diagnoses of bipolar disorder, alcohol abuse, generalized

anxiety disorder, and depression. Brief for Appellant at 12-14. Chew contends

that Attorney Fink lacked a reasonable basis for failing to present this

evidence, which would have refuted the mens rea requirement of third-degree

murder. Id. at 14-15. Chew, relying on our Supreme Court’s decision in

Commonwealth v. McCusker, 292 A.2d 286 (Pa. 1972),2 claims that her

diagnoses were admissible to dispute the malice requirement of third-degree

murder. Brief for Appellant at 13, 15-16.

Counsel is presumed to be effective, and “the burden of demonstrating

ineffectiveness rests on [the] appellant.” Commonwealth v. Rivera, 10

A.3d 1276, 1279 (Pa. Super. 2010).

To satisfy this burden, an appellant must plead and prove by a preponderance of the evidence 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 challenged proceeding would have been different. Failure to satisfy any prong of the test will result in rejection of the appellant’s ineffective assistance of counsel claim. ____________________________________________

2 In McCusker, our Supreme Court determined that evidence of a defendant’s

mental health diagnoses may be admissible to disprove the intent element of first-degree murder, specifically, with regards to the heat of passion defense. See McCusker, 292 A.2d at 288-89.

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Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017) (internal

citations omitted).

Generally, counsel’s assistance is considered effective if he chose a

particular course of conduct that had some reasonable basis designed to

effectuate his client’s interests. Commonwealth v. Ali, 10 A.3d 282, 291

(Pa. 2010). Where matters of strategy and tactics are concerned, “[a] finding

that a chosen strategy lacked a reasonable basis is not warranted unless it

can be concluded that an alternative not chosen offered a potential for success

substantially greater than the course actually pursued.” Commonwealth v.

Colavita, 993 A.2d 874, 887 (Pa. 2010) (quotation marks omitted). Further,

to demonstrate prejudice, the petitioner must demonstrate that “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceedings would have been different.” Commonwealth v. King, 57

A.3d 607, 613 (Pa. 2012). “[A] reasonable probability is a probability that is

sufficient to undermine confidence in the outcome of the proceedings.” Ali,

10 A.3d at 291.

In its Opinion, the PCRA court set forth the relevant law, cogently and

thoroughly addressed Chew’s claim, and concluded that Chew has failed to

satisfy any of the three ineffectiveness prongs. See PCRA Court Opinion,

1/15/21, at 8-20. Specifically, regarding the arguable merit prong, the PCRA

court determined that Chew’s mental illness diagnoses were inadmissible to

refute the malice requirement of third-degree murder. See PCRA Court

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Opinion, 1/15/21, at 8-16; see also Commonwealth v. Andrews, 158 A.3d

1260, 1264 (Pa. Super. 2017) (stating that “[u]nder Pennsylvania law, mental

illness is not a defense to criminal liability unless the mental illness rises to

the level of legal insanity.”). Additionally, regarding the reasonable basis

prong, the PCRA court determined that Attorney Fink’s Affidavit demonstrated

a reasonable basis for not presenting evidence at trial of Chew’s mental health

diagnoses. See PCRA Court Opinion, 1/15/21, at 17-19; see also Amended

Affidavit (Attorney Fink), 8/27/20, at 1-6 (unnumbered)3 (wherein Attorney

Fink detailed that he believed Chew’s mental health diagnoses would have

been unhelpful and damaging to her defense due to evidence that Chew did

not take her prescribed medications, did not follow her doctor’s orders

regarding her illnesses, and could show Chew as a “dangerous,

uncontrollable[,] unstable[,] and repeat offender who could not be helped.”);

Ali, supra; Colavita, supra. After review of the record, we agree with the

sound reasoning and determinations of the PCRA court as set forth in its

Opinion, and we affirm on this basis. See PCRA Court Opinion, 1/15/21, at

8-20.

Order affirmed.

____________________________________________

3Attorney Fink’s Affidavit was attached as an Exhibit to Chew’s Second Amended PCRA Petition.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/19/21

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