Commonwealth v. Nash

1

COMMONWEALTH OF PENNSYLVANIA v. JAMICE NASH Appellant

No. 2145 EDA 2021

No. J-S04014-23

Superior Court of Pennsylvania

April 6, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered September 13, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at CP-51-CR-0011415-2013

BEFORE: MURRAY, J., KING, J., and PELLEGRINI, J. ^[*]

MEMORANDUM

MURRAY, J.

Jamice Nash (Appellant) appeals pro se from the order denying his first petition for relief filed under the Post Conviction Relief Act (PCRA).^[1] The trial court convicted Appellant of attempted murder, aggravated assault, and related crimes after he slashed his seven-year-old daughter's neck with a knife. We affirm.

The PCRA court explained:

On June 12, 2013, [Appellant] slit his [seven-year-old] daughter's throat. Prior to slitting her throat [Appellant] had been heard repeatedly threatening to kill the minor victim and her mother. When police were called to the scene[, Appellant] was holding the minor victim with his left hand and a knife in his right hand. [Appellant] was screaming "this is not my daughter." After finally yielding to police commands to drop the knife and let go of the minor victim, she ran to the police with a gash in her neck and informed the police that [Appellant] had cut her neck with a knife. The bleeding was so bad, instead of waiting for an ambulance, the police immediately drove her to Einstein Hospital. Hospital records showed the victim received a ten-centimeter (close to four inches) laceration to her left interior neck. Although there was no extensive vascular damage, the minor victim was transferred to St. Christopher's Hospital where she [under]went surgical repair to close the sternal mastoid muscle. She ended up spending two days at St. Christopher's Hospital until she was discharged to the Department of Human Services. The minor victim testified that [A]ppellant was taking her to school when he took out the knife and sliced her neck. She subsequently testified that the incident was an accident. [Appellant] also testified to the same. The minor victim's grandmother and mother, who were present during the incident[,] believe [Appellant] was high at the time of the incident.

PCRA Court Opinion, 8/11/22, at 1-2. At trial, Appellant countered that he accidentally cut the victim when, while holding a knife, he tried to fix her uniform collar and she suddenly moved. N.T. Trial, 7/6/17, at 31-32.

Appellant's trial was delayed as a result of his repeated changes of counsel. On July 6, 2017, following a bench trial, the trial court convicted Appellant attempted murder, aggravated assault, unlawful restraint (serious bodily injury), endangering the welfare of children (EWOC) by a parent/guardian, and possession of an instrument of crime (PIC).^[2] On September 12, 2017, the trial court sentenced Appellant to 10 - 20 years in prison, followed by 10 years' probation for attempted murder; and concurrent sentences of 10 - 20 years for aggravated assault; 10 years' reporting probation for EWOC; and five years' reporting probation for PIC. On direct appeal, this Court affirmed Appellant's judgment of sentence. Commonwealth v. Nash, 240 A.3d 119 (Pa. Super. 2020) (unpublished memorandum). Appellant did not seek allowance of appeal with the Pennsylvania Supreme Court. Appellant timely filed the instant PCRA petition on December 29, 2020. The PCRA court appointed counsel, who filed a no-merit letter and a motion to withdraw from representation. Following appropriate notice under Pa.R.Crim.P. 907, the PCRA court dismissed Appellant's petition on September 13, 2021. Appellant timely appealed. Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

Appellant argues the PCRA court improperly rejected his claims of ineffective assistance of counsel, and further asserts multiple claims of trial court error.^[3] We limit our discussion to the ineffectiveness claims raised in Appellant's brief and preserved in Appellant's Pa.R.A.P. 1925(b) concise statement.^[4]

Appellant presents the following issues:

(1) Whether trial counsel rendered ineffective assistance by failing to present the testimony of [Appellant's] or the victim's treating physicians.

(2) Whether trial counsel rendered ineffective assistance by failing to request a continuance.

(3) Whether trial counsel rendered ineffective assistance by failing to move for a mistrial.

(4) Whether trial counsel rendered ineffective assistance by failing to present an insanity defense.

(5) Whether the Commonwealth committed a Brady^[5] violation, which was compounded by the denial of a trial continuance.

See Appellant's Brief at 2, 4, 6-7, 9-10, 11.

In his first four issues, Appellant claims trial counsel was ineffective. Counsel is presumed to be effective; a PCRA petitioner bears the burden of proving otherwise. Commonwealth v. Thomas, 270 A.3d 1221, 1226 (Pa. Super. 2022).

To establish ineffective assistance of counsel, the petitioner must demonstrate (1) the underlying claim has arguable merit; (2) there was no reasonable basis for counsel's action or inaction; and (3) but for counsel's error, there is a "reasonable probability the result of the proceeding would have been different." Id. (quoting Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015)). Failure to satisfy any of the three prongs is fatal to the claim. Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). "[C]ounsel cannot be held ineffective for failing to pursue a meritless claim[.]" Thomas, 270 A.3d at 1226 (citation omitted).

Appellant first argues trial counsel rendered ineffective assistance by not calling as a witness the victim's treating physician or his own physician. Appellant's Brief at 2 (capitalization modified). Appellant asserts:

It should be even know[n] to a layman how important this doctor or [Appellant's] personal doctor would have been at trial. More importantly, it should be more of an issue to this Superior Court that counsel wasn't even given an opportunity to contact or review this doctor as a potential witness.

Id. (capitalization modified).

To prove arguable merit based on trial counsel's failure to call a witness, a PCRA petitioner must

show that the witness existed and was available; counsel was aware of, or had a duty to know of the witness; the witness was willing and able to appear; and the proposed testimony was necessary in order to avoid prejudice[.]

Commonwealth v. Robinson, 278 A.3d 336, 343 (Pa. Super. 2022) (citations omitted).

Our review discloses Appellant failed to demonstrate the physicians were available and willing to testify at trial, and the omission of this testimony caused him prejudice. See id. Further, we agree with the PCRA's court's assessment that Appellant's claim lacks arguable merit and is waived:

In order to be convicted of attempted murder, it must be shown that you took a direct step in furtherance of the crime. In the present case[,] we have a four-inch cut on the neck, which caused surgical repairs and a two[-]day hospital stay. Not to mention that had the knife severed the victim's jugular vein, which has no protection from bone or cartilage, we could have had a much more tragic result. There was also testimony … that [Appellant] was threatening to kill the victim and her mother. It should also be noted that defense counsel asked [A]ppellant twice, during his testimony, whether there were any other witnesses [Appellant] would like to call. In both instances[,] [Appellant] answered no. Based on the area of the knife wound, the immediate action of the police rushing the victim to the hospital, the testimony of the victim's mother and grandmother and [A]ppellant's own testimony, [t]his [c]ourt believes the outcome of the proceedings would not have changed based upon the testimony of the treating doctor[.]

PCRA Court Opinion, 8/11/22, at 4. Appellant's first issue merits no relief. See id.; see also 42 Pa.C.S.A. § 9543(a)(3) (providing PCRA petitioner must plead and prove "the allegation of error has not been previously … waived."); Thomas, 270 A.3d at 1226; Spotz, 84 A.3d at 311.

In his second issue, Appellant argues trial counsel rendered ineffective assistance by not requesting a continuance on the day of trial. Appellant's Brief at 2. Appellant asserts he met counsel for the first time that day. Id. at 3. Appellant acknowledges he

went through a parade of ineffective counsels appointed by the court until he finally retained counsel himself. At this time the court set aside our constitution in order to get this trial over with as "[the trial court] made it clear." No person would agree that [Appellant] received a fair trial of counsel that he meets [sic] the same day trial commences.

Appellant's Brief at 3 (capitalization modified). According to Appellant, "defense counsel had no time to review pertinent evidence in this case. It is uncertain if counsel even knew [Appellant] had recently been declared incompetent." Id. at 9 (capitalization modified). Appellant concedes "trial counsel requested a continuance because she knew that she needed to investigate the case and plan in order to be effective[.]" Appellant's Brief at 10 (capitalization modified, emphasis added). Additionally, we agree with the PCRA court's assessment:

Defense counsel (Mary Moran, Esquire,) was privately retained by [Appellant] and entered her appearance on June 5, 2017, knowing that the trial was to commence on June 5, 2017. This case had been on the docket for close to four years due to defense continuances and a parade of attorneys at [A]ppellant's request. [Appellant] himself retained new representation that day. [Appellant] was of course present at the commencement of trial and never raised an objection during the

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