J-S96034-16

                              2017 PA Super 91

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

TERRENCE PATRICK ANDREWS

                         Appellant                   No. 914 WDA 2016


              Appeal from the PCRA Order Dated June 2, 2016
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0010169-2008

BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J.

OPINION BY SOLANO, J.:                               FILED APRIL 07, 2017

      Appellant Terrence Patrick Andrews appeals from the order denying his

petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. For the reasons that follow, we vacate the PCRA

court’s order and remand for further proceedings.

      On the evening of May 29, 2008, Appellant repeatedly stabbed his

neighbor, Lisa Maas, causing her death. Appellant gave police the following

account of the killing, as summarized from our decision addressing

Appellant’s direct appeal from his conviction, Commonwealth v. Andrews,

No. 1113 WDA 2011, at 1-3 (Pa. Super. Feb. 15, 2013) (unpublished

memorandum): On the morning of the killing, Maas told Appellant “that he

smelled or stunk.” Appellant already thought Maas “looked down on him,”

and her comment “burned [him] up all day.” Appellant decided to kill her. He

waited for her to return to her apartment, forced his way into the apartment,
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and began stabbing her with his scissors. When Maas grabbed a knife to

defend herself, Appellant took it from her and used it to stab her. Maas fell

to the floor and began to choke on her blood. Appellant put a washcloth in

her mouth and secured the washcloth with tape so that he would not hear

Maas choking. When the gurgling sounds stopped and Appellant was sure

that Maas was dead, he left her apartment.

        In the hallway, Appellant encountered two police officers who were

responding to a neighbor’s call regarding screams. Appellant, who was

covered in blood, told the officers, “I did it, take me to jail.” He also asked if

Pennsylvania had the death penalty. The officers found a pair of scissors and

a kitchen knife in Appellant’s pants pocket. Appellant was briefly interviewed

at the crime scene, and gave the account summarized above. See

Andrews, No. 1113 WDA 2011, at 2-3.

        Appellant was charged with criminal homicide and burglary.1 He was

tried by a jury from March 22-25, 2011. At trial, Appellant offered a

diminished capacity defense, presenting expert testimony from Dr. Barbara

Ziv that he lacked the ability to form the specific intent to kill. 2 Appellant’s

____________________________________________

1
    18 Pa.C.S. §§ 2501 and 3502, respectively.
2
  “In asserting a diminished capacity defense, a defendant is attempting to
prove that he was incapable of forming the specific intent to kill; if the
defendant is successful, first degree murder is mitigated to third degree.”
Commonwealth v. Travaglia, 661 A.2d 352, 359 n.10 (Pa. 1995)
(emphasis in original), cert. denied, 516 U.S. 1121 (1996).



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counsel attempted to ask Dr. Ziv whether Appellant’s mental illness

interfered with his “ability to conform his behavior to the law.” Appellant’s

counsel explained that the testimony was relevant to the issue whether

Appellant was guilty but mentally ill. The Commonwealth objected, arguing

that the jury could not return a verdict of guilty but mentally ill because

Appellant had not offered an insanity defense. The trial court sustained the

objection. N.T., Trial, at 418-19. Defense counsel later requested a jury

instruction regarding the verdict of guilty but mentally ill, which was denied

for the same reason. Id. at 556-57. At the conclusion of the trial, the jury

found Appellant guilty of first-degree murder and burglary. After the verdict

was announced, Appellant’s counsel moved to have the verdict molded to

guilty but mentally ill; that motion was denied. Id. at 667-68.

       The trial court proceeded immediately to sentencing, imposing a

sentence of life imprisonment for first-degree murder and a consecutive

term of five to ten years’ incarceration for burglary. This Court affirmed the

judgment of sentence on February 15, 2013, 3 and the Supreme Court of

Pennsylvania denied Appellant’s petition for allowance of an appeal on

October 29, 2013. 78 A.3d 1089 (Pa. 2013).

____________________________________________

3
  On direct appeal, Appellant claimed that (1) the trial court erred in
admitting photographs of the deceased; and (2) the trial court abused its
discretion in finding that the verdict was not contrary to the weight of the
evidence because the Commonwealth’s psychiatric expert was unreliable.
Andrews, No. 1113 WDA 2011, at 3-4.



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      On January 8, 2014, Appellant filed his timely pro se PCRA petition.

Counsel was appointed and, after being given several extensions, filed an

amended PCRA petition on December 29, 2015. The amended petition

contained one claim: “Trial counsel gave ineffective assistance when she

failed to advise Petitioner to plead guilty but mentally ill to the charge of

homicide.” Amended Pet. at 3. Appellant contended that had he entered a

plea of guilty but mentally ill (rather than unsuccessfully pleading not guilty

and going to trial on a diminished capacity defense), he would have been

entitled to psychiatric treatment while serving his life sentence after

conviction. Id. at 4.

      On   May   6,     2016,   after   reviewing   the   Amended   Petition,   the

Commonwealth’s Answer, and the record, the PCRA court issued a notice of

its intent to dismiss Appellant’s PCRA petition pursuant to Rule 907 of the

Pennsylvania Rules of Criminal Procedure. The PCRA court stated:

             Petitioner alleges that trial counsel was ineffective for
      failing to advise Petitioner to plead guilty but mentally ill to the
      charge of homicide. However, Petitioner was not entitled to
      plead guilty but mentally ill because he did not raise an insanity
      defense. Importantly, Petitioner did not raise an insanity defense
      because he did not meet the legal definition of insanity. As such,
      the underlying claim is without merit, and the Court finds that
      there is no merit to Petitioner’s ineffective assistance of counsel
      claim. See Commonwealth v. Spotz, 47 A.3d 63, 108 n.34
      (Pa. 2012) (claims deemed meritless where assertions therein
      are not explained, developed, or supported by the record
      factually or legally).




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Rule 907 Notice, 5/6/16. On May 10, 2016, Appellant filed a response to the

Rule 907 notice, 4 and on June 2, 2016, the PCRA court issued an order

denying Appellant’s PCRA petition.

       On June 27, 2016, Appellant filed a timely notice of appeal. On July

14, 2016, the PCRA court issued an order stating: “The Court set forth in its

Notice of Intent to Dismiss, dated May 6, 2016, the Court’s reasons for

denying Appellant’s Post Conviction Relief Act Petition. This satisfies the

requirement of Pa. R. App. 1925 that the Court set forth its reasons for

issuing the Order Appealed from.” 5 Appellant raises the following issue, as

stated in his brief:

       Whether trial counsel gave ineffective assistance when she failed
       to advise Appellant to plead guilty but mentally ill to the charge
       of homicide?

Appellant’s Brief at 4.

       Preliminarily, we recognize that in reviewing the propriety of an order

granting or denying PCRA relief, this Court is limited to ascertaining whether

the evidence supports the determination of the PCRA court and whether the


____________________________________________

4
  The filing was entitled “Response to Notice of Intention to Dismiss; and, in
the Alternative, Motion for Leave to File Amended PCRA Petition Pursuant to
Rule 905(A) of the Pennsylvania Rules of Criminal Procedure.” Appellant did
not explain how he would amend the petition if leave were granted.
5
  The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b)
statement of matters complained of on appeal, and Appellant did not file
one.



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ruling is free of legal error. Commonwealth v. Payne, 794 A.2d 902, 905

(Pa. Super.), appeal denied, 808 A.2d 571 (Pa. 2002).

        Counsel is presumed to have been effective. To overcome this

presumption, a PCRA petitioner must plead and prove that: “(1) the

underlying legal claim is of arguable merit; (2) counsel’s action or inaction

lacked any objectively reasonable basis designed to effectuate his client’s

interest; and (3) prejudice, to the effect that there was a reasonable

probability    of   a    different   outcome     if   not   for   counsel’s    error.”

Commonwealth v. Natividad, 938 A.2d 310, 321 (Pa. 2007).

        Here, the PCRA court dismissed Appellant’s petition without a hearing

because it concluded that Appellant’s underlying legal claim lacked arguable

merit. The PCRA court reasoned that Appellant was not entitled to plead

guilty but mentally ill because he did not present an insanity defense at trial.

Although the PCRA court did not cite any authority in support of this

reasoning, the Commonwealth makes the same argument in its brief, relying

on a Crimes Code provision, 18 Pa.C.S. § 314, that provides, in relevant

part:

        § 314. Guilty but mentally ill

        (a) General rule.—A person who timely offers a defense of
        insanity in accordance with the Rules of Criminal Procedure may
        be found “guilty but mentally ill” at trial if the trier of facts finds,
        beyond a reasonable doubt, that the person is guilty of an
        offense, was mentally ill at the time of the commission of the
        offense and was not legally insane at the time of the commission
        of the offense.



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     (b) Plea of guilty but mentally ill.—A person who waives his
     right to trial may plead guilty but mentally ill. No plea of guilty
     but mentally ill may be accepted by the trial judge until he has
     examined all reports prepared pursuant to the Rules of Criminal
     Procedure, has held a hearing on the sole issue of the
     defendant’s mental illness at which either party may present
     evidence and is satisfied that the defendant was mentally ill at
     the time of the offense to which the plea is entered. If the trial
     judge refuses to accept a plea of guilty but mentally ill, the
     defendant shall be permitted to withdraw his plea. A defendant
     whose plea is not accepted by the court shall be entitled to a
     jury trial, except that if a defendant subsequently waives his
     right to a jury trial, the judge who presided at the hearing on
     mental illness shall not preside at the trial.

     (c) Definitions.—For the purposes of this section and 42
     Pa.C.S. § 9727 (relating to disposition of persons found guilty
     but mentally ill):

        (1) “Mentally   ill.” One who as a result of mental disease or
        defect, lacks    substantial capacity either to appreciate the
        wrongfulness    of his conduct or to conform his conduct to the
        requirements    of the law.

        (2) “Legal insanity.” At the time of the commission of the act,
        the defendant was laboring under such a defect of reason,
        from disease of the mind, as not to know the nature and
        quality of the act he was doing or, if he did know it, that he
        did not know he was doing what was wrong.

18 Pa.C.S. § 314.

     The Commonwealth misconstrues this statute. Section 314 draws a

distinction between a defendant who pleads not guilty and a defendant who

pleads guilty. Under Section 314(a), a defendant who pleads not guilty may

be found by a fact-finder to be guilty but mentally ill only if the defendant

“offers a defense of insanity.” 18 Pa.C.S. § 314(a); see Commonwealth v.

Hatfield, 579 A.2d 945, 947 (Pa. Super. 1990). The reason for this rule is

that, under Pennsylvania law, mental illness is not a defense to criminal

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liability unless the mental illness rises to the level of legal insanity under

Section 314(c)(2). This limitation is set forth in Section 315(a) of the Crimes

Code:

        The mental soundness of an actor engaged in conduct charged
        to constitute an offense shall only be a defense to the charged
        offense when the actor proves by a preponderance of evidence
        that the actor was legally insane at the time of the commission
        of the offense.

18 Pa. C.S. § 315(a); see Hatfield, 579 A.2d at 947 (holding that evidence

of mental illness is irrelevant to guilt where a defendant does not invoke an

insanity defense).6

        Thus, under Section 314(a), if a defendant wishes to plead not guilty

on the basis of his mental illness, he must claim to have been legally insane

when he committed the crime. If the fact-finder then agrees that the

defendant was insane, it will find the defendant not guilty on the basis of

that defense.7 But if the fact-finder concludes that the defendant committed

the crime while he was mentally ill but not insane, it may not acquit him on

the basis of the mental illness; instead, it may find the defendant “guilty but

mentally ill.” Such a verdict then triggers provisions of the Sentencing Code



____________________________________________

6
 Section 315 contains a definition of legal insanity identical to that in
Section 314(c)(2). See 18 Pa. C.S. § 315(b).
7
  The Mental Health Procedures Act contains procedures for involuntary
commitment of individuals found not guilty by reason of insanity. See Act
§§ 304, 305, 404, 406, 50 P.S. §§ 7304, 7305, 7404, 7406.



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that enable the defendant to receive mental health treatment while

undergoing his criminal punishment. See 42 Pa. C.S. § 9727.8
____________________________________________

8
  The Legislature added this “guilty but mentally ill” innovation to
Pennsylvania law in 1982, following the acquittal due to mental illness of
John W. Hinckley, Jr. for the attempted assassination of President Reagan.
See Commonwealth v. Trill, 543 A.2d 1106, 1119 (Pa. Super. 1988),
appeal denied, 562 A.2d 826 (Pa. 1989). To decrease the number of
acquittals based on an insanity defense, the 1982 legislation provided juries
with a “guilty but mentally ill” verdict as an alternative to finding the
defendant not guilty by reason of insanity. Id. For persons found guilty but
mentally ill, Section 9727 of the Sentencing Code provides, in part:

       Disposition of persons found guilty but mentally ill.
       (a) Imposition of sentence.—A defendant found guilty but
       mentally ill or whose plea of guilty but mentally ill is accepted
       under the provisions of 18 Pa.C.S. § 314 (relating to guilty but
       mentally ill) may have any sentence imposed on him which may
       lawfully be imposed on any defendant convicted of the same
       offense. Before imposing sentence, the court shall hear
       testimony and make a finding on the issue of whether the
       defendant at the time of sentencing is severely mentally disabled
       and in need of treatment pursuant to the provisions of the act of
       July 9, 1976 (P.L.817, No.143), known as the “Mental Health
       Procedures Act.”
       (b) Treatment.—
       (1) An offender who is severely mentally disabled and in need of
       treatment at the time of sentencing shall, consistent with
       available resources, be provided such treatment as is
       psychiatrically or psychologically indicated for his mental illness.
       Treatment may be provided by the Bureau of Correction, by the
       county or by the Department of Public Welfare in accordance
       with the “Mental Health Procedures Act.”
       (2) The cost for treatment of offenders found guilty but mentally
       ill, committed to the custody of the Bureau of Correction and
       transferred to a mental health facility, shall be borne by the
       Commonwealth.
42 Pa. C.S. § 9727(a), (b).



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      But in claiming that he should have been advised to plead guilty but

mentally ill, Appellant does not rely on Section 314(a). Instead, he relies on

Section 314(b), which, by its precise terms, specifically authorizes a

defendant to “waive[] his right to trial” and “plead guilty but mentally ill.”

Contrary to the Commonwealth’s argument, Section 314(b) does not

condition the ability to plead guilty but mentally ill on the assertion of an

insanity defense.   Indeed, any such condition would make no sense. An

insanity defense requires a plea of not guilty. Here, Appellant argues that

he should have been advised to plead guilty but mentally ill. “A plea of

guilty constitutes a waiver of all nonjurisdictional defects and defenses” and

“waives the right to challenge anything but the legality of [the] sentence and

the validity of [the] plea.” Commonwealth v. Jones, 929 A.2d 205, 212

(Pa. 2007) (citation omitted). Thus, if a defendant pleads guilty but mentally

ill and the court accepts that plea, the defendant waives the defense of

insanity. There thus would be no reason for a defendant to invoke the

defense of insanity before entering a plea of guilty but mentally ill.

      We have found no case law discussing the interplay between Sections

314(a) and 314(b) with respect the requirement to assert an insanity

defense, but we are confident that the statute authorizes a plea of guilty but

mentally ill by a person who does not claim to be insane. We implied as

much in Commonwealth v. Andre, 17 A.3d 951 (Pa. Super. 2011), where

we said that, “unless a person pleads guilty but mentally ill, the guilty

but mentally ill verdict only arises in the context of a legal insanity defense.”

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17 A.3d at 961 (emphasis added; explaining interplay among mens rea,

insanity, and guilty but mentally ill). The Commonwealth cites no case law

to the contrary.

       We previously addressed a claim that trial counsel was ineffective for

not pursuing a guilty but mentally ill plea in Commonwealth v. Townsend,

747 A.2d 376 (Pa. Super.), appeal denied, 759 A.2d 385 (Pa. 2000). The

trial court rejected Townsend’s claim of ineffective assistance, and this Court

affirmed. In doing so, we noted that Townsend’s counsel testified, at the

post-sentence hearing, 9 that (1) she did not believe there was enough

medical evidence to support a guilty but mentally ill finding; and (2) she

discussed the option of pleading guilty but mentally ill with Townsend more

than once. 747 A.2d at 383. Further, Townsend had rejected a guilty plea

offer “because he wanted to tell his story,” and there was no reason to

believe that a guilty but mentally ill plea would have been more acceptable

to him. Id. Notably, this Court did not say that Townsend could plead guilty

but mentally ill only if he offered an insanity defense. Townsend therefore

does not support the Commonwealth’s case here.
____________________________________________

9
  The issue in Townsend was raised on direct appeal. “Until the decision in
Commonwealth v. Grant[, 813 A.2d 726 (Pa. 2002)], all claims of
ineffective assistance of counsel had to be raised at the earliest appropriate
stage in the proceedings at which the attorney whose effectiveness was
being challenged no longer represented the defendant.” 16 West’s Pa.
Practice, Criminal Practice § 4:22 (footnotes omitted); see generally 29
Standard Pa. Practice 2d § 138.51 (discussing when claims of ineffective
assistance of counsel should be raised).



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      We hold that a defendant need not assert an insanity defense before

entering a plea of guilty but mentally ill. Accordingly, the PCRA court erred

by dismissing Appellant’s claim on the ground that he did not assert such a

defense. We therefore will vacate the PCRA court’s decision and remand for

further consideration of Appellant’s claim of ineffective assistance. On

remand, Appellant will have to establish all three elements of an ineffective

assistance claim. Because he contends that he should have been advised to

plead guilty but mentally ill, these requirements will include proof that he

would have been able to satisfy the trial court “that [he] was mentally ill at

the time of the offense to which the plea is entered,” as required by Section

314(b), and that the Commonwealth would have agreed to a guilty but

mentally ill plea and the court would have accepted a guilty plea on those

terms. See Pa.R.Crim.P. 590.

      Order vacated. Case remanded for further proceedings consistent with

this opinion. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2017



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