Commonwealth v. Nichols

1

COMMONWEALTH OF PENNSYLVANIA v. DUSTIN CAMERON NICHOLS Appellant

No. 951 WDA 2023

No. J-S13028-24

Superior Court of Pennsylvania

September 24, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the PCRA Order Entered July 21, 2023 In the Court of Common Pleas of Mercer County Criminal Division at No(s) CP-43-CR-0000347-2017

Benjamin D. Kohler, Esq.

BEFORE: KUNSELMAN, J., BECK, J., and STEVENS, P.J.E ^[*]

MEMORANDUM

BECK, J.

Dustin Cameron Nichols ("Nichols") appeals from the order entered July 21, 2023, by the Mercer County Court of Common Pleas ("PCRA court") dismissing his first petition filed pursuant to the Post Conviction Relief Act ("PCRA").^[1] On appeal, Nichols raises claims of ineffective assistance of trial and direct appeal counsel. Because Nichols' claims are either meritless or waived, we affirm.

The record reflects that in the early morning of February 6, 2017, Nichols maimed a cat belonging to his roommate, Olivia Gonzalez ("Gonzalez"), with a glass bong and then killed Gonzalez by shooting her four times with a twelve-gauge shotgun inside the residence they shared. After shooting her, Nichols struck Gonzalez in the head three times with the butt of the shotgun. Nichols called 9-1-1 later that morning, admitting in the call that he murdered Gonzalez. Nichols cooperated with police and participated, without counsel, in four separate recorded interviews that day.

The Commonwealth charged Nichols with first-degree murder, third-degree murder, and cruelty to animals.^[2] At trial, Nichols admitted he killed Gonzalez, but argued that he was voluntarily intoxicated on lysergic acid diethylamide ("LSD") and marijuana and thus lacked the requisite criminal intent for first-degree murder.^[3] The evidence at trial confirmed that Nichols and Gonzalez ingested both drugs before the killing. The primary issue before the jury was whether Nichols had a specific intent to kill Gonzalez; the parties presented conflicting expert testimony on this question.

Following a five-day trial, a jury found Nichols guilty of first-degree murder and cruelty to animals, and not guilty of third-degree murder. The trial court sentenced Nichols to a term of life imprisonment without the possibility of parole for first-degree murder and a concurrent term of four to twelve months of imprisonment for the cruelty to animals conviction. Nichols filed a post-sentence motion, which the trial court denied; this Court affirmed his judgment of sentence on December 10, 2019, and our Supreme Court denied his petition for allowance of appeal on June 1, 2020. Commonwealth v. Nichols, 1815 WDA 2018, 2019 WL 6716179 (Pa. Super. Dec. 10, 2019) (non-precedential decision), appeal denied, 235 A.3d 270 (Pa. 2020).

On March 7, 2022, Nichols filed a counseled PCRA petition, his first, and on August 5, 2022, counsel filed an amended petition. Therein, Nichols asserted his petition satisfied an exception to the PCRA's time-bar and raised claims of ineffective assistance of trial and direct appeal counsel. Following an evidentiary hearing limited to the issue of the timeliness of the petition, the PCRA court dismissed it as untimely filed. Nichols appealed and this Court reversed, holding that Nichols satisfied the newly-discovered facts exception^[4]to the PCRA's time-bar because direct appeal counsel abandoned him after filing his petition for allowance of appeal to our Supreme Court, failed to notify Nichols when the petition was denied, and Nichols exercised due diligence in discovering direct appeal counsel's ineffectiveness and pursuing his claims. Commonwealth v. Nichols, 1287 WDA 2022, 2023 WL 3839552, at *4-5 (Pa. Super. June 6, 2023) (non-precedential decision). Following remand, the PCRA court dismissed the amended petition without a hearing on July 21, 2023, and denied Nichols' motion for reconsideration on August 14, 2023. This timely-filed appeal followed. The PCRA court and Nichols complied with the requirements of Rule 1925 of our Pennsylvania Rules of Appellate Procedure.^[5]

On appeal, Nichols presents seven questions for our consideration:

1. Did the [PCRA c]ourt err in failing to conduct a hearing on [Nichols'] Amended Petition under the [PCRA] foreclosing [Nichols'] ability to argue the legal and factual basis for [Nichols'] allegation of error and ineffective assistance of counsel?

2. Did the [PCRA c]ourt err in dismissing [Nichols'] claim of ineffectiveness of [direct appeal] counsel in failing to raise the issue of intoxication being a factor in determining [Nichols'] requisite intent to kill?

3. Did the [PCRA c]ourt err in dismissing [Nichols'] claim of ineffectiveness of trial counsel in failing to request an instruction for adverse inference or object to the absence of an adverse inference instruction?

4. Did the [PCRA c]ourt err in dismissing [Nichols'] claim of ineffectiveness of [direct appeal] counsel in raising only a single issue on appeal that had been waived by trial counsel?

5. Did the [trial c]ourt err in admonishing the jury that if they did not reach a verdict they would be required to stay overnight in a hotel and eat pizza from a local shop entitling [Nichols] to a new trial?

6. Did the [PCRA c]ourt err in dismissing [Nichols'] claim of ineffectiveness of trial counsel in failing to object to the [PCRA c]ourt's admonishment?

7. Did the [trial c]ourt err in admitting inflammatory photographs of the victim and crime scene without an objection from trial counsel regarding an off-the record analysis of admissibility?

Nichols' Brief at 11-12 (suggested answers omitted; reordered for ease of disposition).

Our review of a PCRA court's decision is limited to examining whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error. We view the findings of the PCRA court and the evidence of record in a light most favorable to the prevailing party. With respect to the PCRA court's decision to deny a request for an evidentiary hearing, or to hold a limited evidentiary hearing, such a decision is within the discretion of the PCRA court and will not be overturned absent an abuse of discretion.

Commonwealth v. Wilson, 273 A.3d 13, 18 (Pa. Super. 2022) (citations omitted).

"A petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA court can decline to hold a hearing if there is no genuine issue concerning any material fact and the petitioner is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings." Commonwealth v. Williams, 313 A.3d 249, 253 (Pa. Super. 2024) (citations, quotation marks, and brackets omitted); see also Pa.R.Crim.P. 907(1). "A reviewing court on appeal must examine each of the issues raised in the PCRA petition in light of the record in order to determine whether the PCRA court erred in concluding that there were no genuine issues of material fact and in denying relief without an evidentiary hearing." Williams, 313 A.3d at 253 (citations and quotation marks omitted).

Nichols raises several layered claims of ineffective assistance of direct appeal and trial counsel. "In considering an ineffective assistance of counsel claim, we observe first that counsel is presumed effective and that a petitioner bears the burden to prove otherwise." Commonwealth v. Hamilton, 303 A.3d 823, 830-31 (Pa. Super. 2023) (citation omitted). To establish an ineffectiveness claim, a petitioner must prove:

(1) The underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or failure to act; and (3) appellant suffered prejudice as a result of counsel's error such that there is a reasonable probability that the result of the proceeding would have been different absent such error.

Id. at 831 (citation, quotation marks, and brackets omitted). "Failure to prove any prong of this test will defeat an ineffectiveness claim. When an appellant fails to meaningfully discuss each of the three ineffectiveness prongs, he is not entitled to relief, and we are constrained to find such claims waived for lack of development." Id. (citation and quotation marks omitted).

Further, "[w]here the defendant asserts a layered ineffectiveness claim he must properly argue each prong of the three-prong ineffectiveness test for each separate attorney." Commonwealth v. Gibson, __A.3d __, 2024 WL 3263496, at * 4 (Pa. Super. July 2, 2024).

Layered claims of ineffectiveness are not wholly distinct from the underlying claims, because proof of the underlying claim is an essential element of the derivative ineffectiveness claim. In determining a layered claim of ineffectiveness, the critical inquiry is whether the first attorney that the defendant asserts was ineffective did, in fact, render ineffective assistance of counsel. If that attorney was effective, then subsequent counsel cannot be deemed ineffective for failing to raise the underlying issue.

In any event, it is well settled that counsel cannot be deemed ineffective for failing to raise a meritless claim.

Id. (citations and quotation marks omitted).

In his first issue, Nichols argues that the PCRA court should have held a hearing on the issues raised in his amended PCRA petition. Nichols' Brief at 19-29. Because this issue is subsumed under other issues Nichols raises on appeal, we do not address it separately. However, we note that in the argument section for this first issue, Nichols correctly points out that the PCRA court failed to issue the requisite notice of its intent to dismiss his amended PCRA petition without a hearing pursuant to Rule 907(1) of the Pennsylvania Rules of Criminal Procedure. Id. at 28. Nichols argues that this omission denied him the opportunity to object or amend his...