Com. v. Cairns, A.

J-S61038-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREW GRAHAM CAIRNS :
:
Appellant : No. 3655 EDA 2017

Appeal from the PCRA Order October 25, 2017
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0003357-2013

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

MEMORANDUM BY PANELLA, J. FILED MARCH 15, 2019

Andrew Graham Cairns appeals from the order entered in the Court of

Common Pleas of Bucks County, denying his first petition for collateral relief

brought pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§

9541–9546. Appellant claims ineffective assistance of plea counsel and PCRA

court error in the denial of certain evidentiary and discovery requests. We

affirm.

On January 17, 2014, Appellant entered a counseled, negotiated guilty

plea to third degree murder, 18 Pa.C.S.A. § 2502(c), eight counts of

aggravated assault, 18 Pa.C.S.A. § 2702(a)(6), nine counts of recklessly

endangering another person, 18 Pa.C.S.A. § 2705, possession of an

instrument of crime, 18 Pa.C.S.A. § 907(a), and discharge of a firearm into

an occupied structure, 18 Pa.C.S.A. § 2707.1(a).
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For murder of the third degree, the court imposed the recommended

sentence the parties had agreed on, specifically, not less than fourteen years

nor more than thirty years of incarceration in a state correctional institution,

followed by ten years of probation. The court imposed no sentence on the

remaining counts. Appellant did not file post-sentence motions or a direct

appeal.

Appellant’s guilty plea arose out of events on the evening of February

19, 2013. The PCRA court thoroughly describes the facts of that evening.

See PCRA Court Opinion, 1/11/18, at 1-4. Therefore, we need not repeat

them in detail here.

For purposes of review in this appeal, we note briefly that during a

domestic quarrel with his fiancée, Deborah Silva, Appellant discharged a .44

Magnum revolver, twice, in their apartment in Warminster, Pennsylvania,

threatening to commit suicide.1 Silva fled the apartment, and called 911.

Police and other emergency response personnel soon arrived. The

police took up positions about a hundred yards from Appellant’s apartment.

Appellant fired another seventeen shots through his bedroom window. The

bullets landed throughout the apartment complex and its borders. Appellant

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1 Appellant and Silva refer to each other both as spouses and as fiancées.

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testified that a bullet fired from the revolver could travel a half a mile or more.

See N.T. PCRA Hearing, 7/06/17, at 87.2

Because the apartments were not numbered sequentially, the

responding Warminster police received incorrect information about which

apartment Appellant was in.3 When a nearby apartment door opened and a

person emerged, one of the police, Officer Sean Harold, fired. Officer Harold

fatally wounded an eighty-nine year old widow, Marie Zienkewicz. Appellant’s

count of third degree murder arose out of the shooting of Ms. Zienkewicz. The

Commonwealth charged Appellant with homicide based on the doctrine of

transferred intent.

Pertinent to other issues on appeal, Appellant’s counsel engaged a

ballistics expert, Emanuel Kapelsohn, to perform forensic testing and to opine

about matters relating to the shooting. Kapelsohn did perform some firing

tests, made an on-site inspection, and did related activities. However, by the

time Appellant and his counsel decided to enter a guilty plea, Kapelsohn had

not yet completed his final written report. Defense counsel advised Kapelsohn

that in view of the guilty plea, it was no longer necessary to complete the

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2 In fact, one bullet shot out of the apartment complex, across Street Road, a
heavily traveled throughway, and into the home of Deanna Gorman. It went
through two bedrooms, causing property damage in both rooms. See N.T.
Preliminary Hearing, 5/16/13, at 104.

3In any event, it is not readily apparent how legible the apartment numbers
were at night at a distance of a hundred yards.

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written report. In addition, at the PCRA hearing, plea counsel noted

Kapelsohn’s reluctance to render an opinion on whether the Warminster

Township police used unreasonable force, which defense counsel regarded as

a key issue. See PCRA Court Opinion, at 12.

Separately, Zienkewicz’s estate brought and settled a civil claim against

the Warminster Township police department. There is no dispute that the

settlement document expressly denied Township liability for the events of that

night. The PCRA court first excluded the settlement agreement but later

reversed itself and admitted it, but declined Appellant’s suggestion to consider

it as exculpatory evidence. In fact, the Commonwealth asked for the

agreement to be admitted into evidence to highlight the Township’s disclaimer

of responsibility. The court also denied Appellant’s motion for various other

items in discovery. The court denied Appellant’s petition on October 26, 2017.

On November 15, 2017, Appellant timely filed a notice of appeal.

Counsel filed a twenty-three paragraph statement of errors on December 20,

2017.4 See Concise Statement of Errors Complained of on Appel, 12/20/17;

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4 For its review, the PCRA court reduced Appellant’s twenty-three assertions
into six allegations of error. See PCRA Court Opinion, at 5. On appeal,
Appellant essentially adopts the PCRA court’s condensation, except for the
omission of the claim that counsel allowed Appellant to plead while under the
influence of medications. We deem that claim, and all claims not included in
Appellant’s statement of questions involved, abandoned on appeal.

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see also Pa.R.A.P. 1925. On appeal, Appellant presents five questions for

our review, which we reproduce verbatim except for the bracketed insertions:

A. Was trial counsel ineffective in inducing Appellant to
unknowingly plead guilty as there was not a factual basis?

B. Was trial counsel ineffective in inducing Appellant to
plead guilty at a time when he was not afforded the opportunity
to review discovery?

C. Was trial counsel ineffective in failing to engage the
services of an expert to establish improper police procedures to
support Appellant’s innocence?

D. Did the [trial] court err in failing to admit a wrongful
death settlement between Warminster Township and the family of
the deceased?

E. Did the [trial] court err in failing to find exceptional
circumstances, pursuant to 42 Pa. C.S. § 9545(d)(2) and
Pa. R.Cr.P. 902(E)(1), entitling Appellant to discovery requests?

Appellant’s Brief, at 4.5

Appellant chiefly claims PCRA relief under 42 Pa.C.S.A. § 9543(a)(ii),

(ineffective assistance of counsel), and (iii), (guilty plea unlawfully induced).6

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5 We note that even though the principal brief exceeds thirty pages, counsel
has failed to include a certification that the brief complies with the word count
limits required by our rules of appellate procedure. See Pa.R.A.P. 2135(a)(1).
6 Section 9543 provides for relief, in relevant part, on the following conditions:

(2) That the conviction or sentence resulted from one or
more of the following:

* * *

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Our standard and scope of review for the denial of PCRA relief are

well-settled:

Our standard in reviewing a PCRA court order is abuse of
discretion. We determine only whether the court’s order is
supported by the record and free of legal error. This Court grants
great deference to the findings of the PCRA court, and we will not
disturb those findings merely because the record could support a
contrary holding. We will not disturb the PCRA court’s findings
unless the record fails to support those findings.

A criminal defendant has the right to effective counsel during a
plea process as well as during trial. . . .

We conduct our review of such a claim in accordance with the
three-pronged ineffectiveness test under section 9543(a)(2)(ii) of
the PCRA. The voluntariness of the plea depends on whether
counsel’s advice was within the range of competence demanded
of attorneys in criminal cases.

In order for Appellant to prevail on a claim of ineffective assistance
of counsel, he must show, by a preponderance of the evidence,
ineffective assistance of counsel which, in the circumstances of
the particular case, so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken
place. Appellant must demonstrate: (1) the underlying claim is of
arguable merit; (2) that counsel had no reasonable strategic basis
for his or her action or inaction; and (3) but for the errors and
omissions of counsel, there is a reasonable probability that the

____________________________________________

(ii) Ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place.

(iii) A plea of guilty unlawfully induced where the
circumstances make it likely that the inducement caused the
petitioner to plead guilty and the petitioner is innocent.

42 Pa.C.S.A. § 9543(a)(2)(ii), (iii).

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outcome of the proceedings would have been different. The
petitioner bears the burden of proving all three prongs of the test.

Moreover, trial counsel is presumed to be effective.

Additionally, [w]ith regard to prejudice . . . we noted that
[t]o succeed in showing prejudice, the defendant must show that
it is reasonably probable that, but for counsel’s errors, he would
not have pleaded guilty and would have gone to trial. The
reasonable probability test is not a stringent one. . . .

[a] reasonable probability is a probability sufficient to undermine
confidence in the outcome.

Commonwealth v. Patterson, 143 A.3d 394, 397–98 (Pa. Super. 2016)

(citations, emphasis, internal quotation marks, and some formatting omitted).

See also Strickland v. Washington, 466 U.S. 668 (1984), and

Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987) (establishing and

refining test for proving ineffectiveness under PCRA).

“The scope of review is limited to the findings of the PCRA court and the

evidence of record, viewed in the light most favorable to the prevailing

party at the PCRA court level.” Commonwealth v. Koehler, 36 A.3d 121,

131 (Pa. 2012) (citation omitted) (emphasis added).

“The PCRA court’s credibility determinations, when supported by the

record, are binding on this Court. However, this Court applies a de novo

standard of review to the PCRA court’s legal conclusions.” Commonwealth

v. Medina, 92 A.3d 1210, 1214–15 (Pa. Super. 2014) (citation omitted).

Here, in his first three claims, we note preliminarily that Appellant

recites the three-prong Strickland/Pierce test recognized in Patterson and

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numberless other PCRA cases. See Appellant’s Brief, at 11-27. However, he

fails to fully apply this test to the facts of this case in each argument.

In his first claim, Appellant asserts the guilty plea lacked a factual basis.

See Appellant’s Brief, at 10. Instead of proving that plea counsel was

ineffective under the three prongs of the Strickland/Pierce test, Appellant

baldly asserts that the factual basis for the plea failed to establish malice and

causation. See Appellant’s Brief, at 11-27. We disagree.

To the contrary, the Commonwealth set out a meticulous factual basis

for the plea, which the trial court properly accepted. See N.T., Guilty Plea

and Sentencing, 1/17/14/ at 25-34.

In reviewing the factual basis, we are mindful of the following applicable

legal principles:

Pursuant to the Pennsylvania Crimes Code, “[a] person is guilty of
criminal homicide if he intentionally, knowingly, recklessly or
negligently causes the death of another human being.” 18
Pa.C.S.A. § 2501(a). “Criminal homicide [is] classified as murder,
voluntary manslaughter, or involuntary manslaughter.” Id.
§ 2501(b). Murder is defined, in relevant part, as follows.

§ 2502. Murder

(a) Murder of the first degree.—A criminal homicide
constitutes murder of the first degree when it is committed
by an intentional killing.

(b) Murder of the second degree.—A criminal homicide
constitutes murder of the second degree when it is committed
while defendant was engaged as a principal or an accomplice
in the perpetration of a felony.

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(c) Murder of the third degree.—All other kinds of
murder shall be murder of the third degree. Murder of the
third degree is a felony of the first degree.

Id. § 2502. Accordingly, “[t]hird[-]degree murder occurs when a
person commits a killing which is neither intentional nor
committed during the perpetration of a felony, but contains the
requisite malice.” Commonwealth v. Truong, 36 A.3d 592, 597
(Pa. Super. 2012) (en banc) (citation omitted), appeal denied, 618
Pa. 688, 57 A.3d 70 (2012).

Malice is defined as: wickedness of disposition, hardness of heart,
cruelty, recklessness of consequences, and a mind regardless of
social duty, although a particular person may not be intended to
be injured[.] Malice may be found where the defendant
consciously disregarded an unjustified and extremely high risk
that his actions might cause serious bodily injury. Malice may
be inferred by considering the totality of the
circumstances.

Commonwealth v. Dunphy, 20 A.3d 1215, 1219 (Pa. Super.
2011); accord Truong, supra at 597–598.

Commonwealth v. Thompson, 106 A.3d 742, 756–57 (Pa. Super. 2014)

(emphasis added).

Here, we would conclude that the trial court correctly decided that the

Commonwealth properly established a factual basis for third degree murder.

Appellant consciously disregarded an unjustified and extremely high risk that

his actions in shooting nineteen times might cause serious bodily injury. The

PCRA court properly determined this claim lacked arguable merit.

Appellant also argues that the factual basis failed to establish causation.

We disagree. The applicable legal principles are well-settled.

(a) General rule.—Conduct is the cause of a result
when:

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(1) it is an antecedent but for which the result in
question would not have occurred; and

(2) the relationship between the conduct and result
satisfies any additional causal requirements imposed by this
title or by the law defining the offense.

18 Pa.C.S.A. § 303(a). To establish criminal causation, the
Commonwealth must prove that the defendant’s conduct was so
directly and substantially linked to the actual result as to give rise
to the imposition of criminal liability.

Commonwealth v. Nunn, 947 A.2d 756, 760 (Pa. Super. 2008) (case

citations omitted) (judgment of sentence affirmed where robbery suspect

drew weapon on police, foreseeably inviting police to open fire, which killed

bystander).

Causation may be established by the doctrine of transferred intent. See

18 Pa.C.S.A. § 303. “The transferred intent theory provides that if the intent

to commit a crime exists, this intent can be transferred for the purpose of

finding the intent element of another crime.” Commonwealth v.

Thompson, 739 A.2d 1023, 1029–30 (Pa. 1999) (citation omitted); see also

Commonwealth v. Gaynor, 648 A.2d 295, 298-299 (Pa. 1994) (reinstating

judgment of sentence where appellant and intended victim were firing

weapons at each other with intent to kill, but intended victim killed and

wounded children bystanders instead). Accord, Commonwealth v.

Rementer, 598 A.2d 1300, 1307-08 (Pa. Super. 1991) (affirming conviction

of third degree murder for appellant who relentlessly beat girlfriend; she was

killed by passing car when she tried to escape).

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Appellant’s claim in this appeal that the factual basis failed to establish

causation, and that return fire from the police was not foreseeable, is

unsupported by controlling caselaw, or statutory law, and would not merit

relief. He therefore failed to establish this claim had arguable merit.

Appellant’s second ineffectiveness claim is equally unavailing. Appellant

claims he was denied the opportunity to review discovery materials, so that

his guilty plea could not be knowing, voluntary and intelligent. See Appellant’s

Brief, 27-32. The PCRA court accepted the testimony of plea counsel that he

and his associate “went over basically every single piece of evidence that we

had.” PCRA Court Opinion, at 11 (quoting N.T. PCRA Hearing, 7/06/17, at

132). This included photographs, the affidavit of probable cause, police

reports, motions and memoranda. See id. Notably, the PCRA court found

Appellant to be “an overall incredible witness.” Id. at 10. As Appellant’s

argument would require us to ignore the PCRA court’s credibility

determinations, it does not merit relief.

In his third ineffectiveness claim, Appellant asserts that plea counsel

failed “to fully engage” the ballistics expert, Emanuel Kapelsohn, “as his

testimony would have changed the outcome of the case.” (Appellant’s Brief,

at 32; see also id .at 32-37). We disagree.

This claim is waived. As noted by the PCRA court, Appellant failed to

present this issue in his amended PCRA petition. See PCRA Court opinion, at

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12, n.7; see also Amended Motion for Post Conviction Collateral Relief,

8/15/16, at 1-12.

Our Supreme Court has explained:

Regardless of the reasons for Appellant’s belated raising of this
issue, it is indisputably waived. We have stressed that a claim not
raised in a PCRA petition cannot be raised for the first time on
appeal. We have reasoned that “[p]ermitting a PCRA petitioner
to append new claims to the appeal already on review would
wrongly subvert the time limitation and serial petition restrictions
of the PCRA.” Commonwealth v. Bond, 572 Pa. 588, 819 A.2d
33, 52 (2002).

Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004).

Moreover, the self-serving claim that a ballistic expert’s testimony would

have swayed a hypothetical jury on the issue of whether Appellant had the

requisite “malicious state of mind,” is unsupported by pertinent authority and

merely speculative. Appellant’s Brief, at 33. Appellant cannot establish

arguable merit or prejudice. Appellant’s third claim is waived and Appellant

fails to develop an argument that it would merit relief.

In his fourth claim, Appellant assigns error to the PCRA court’s failure to

admit a wrongful death settlement between Warminster Township and the

family of Ms. Zienkewicz. See Appellant’s Brief, at 37-40. We disagree.

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First, the record confirms that the PCRA court did admit the settlement

agreement into evidence. See PCRA Court Opinion, at 14; see also N.T. PCRA

Hearing, at 125. Appellant’s claim is frivolous.7

Appellant’s companion argument, that the settlement agreement is

exculpatory as to him, is clearly erroneous. Appellant was not a party to the

agreement. The self–serving assessments of the interested parties and their

counsel have no force of law, and are not dispositive of any issue as to

Appellant. The settlement agreement, as already noted, denies any legal

responsibility as to the Township. The PCRA court properly determined that

the settlement was not exculpatory as to Appellant. Appellant’s fourth claim

fails.

In his fifth and final issue, Appellant claims error in the PCRA court’s

denial of his multiple discovery requests. He contends the court erred in

finding he failed to prove exceptional circumstances in seeking this discovery.

See Appellant’s Brief, at 40-44. We disagree.

Appellant’s fifteen discovery requests spanned gunshot residue reports,

Officer Harold’s police file, and Appellant’s own psychological reports, in the

avowed hope of proving there was a “break in the causal chain.” Appellant’s

Brief, at 43.

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7 Accordingly, Appellant’s claim that the settlement agreement would be
admissible as newly discovered evidence is moot. We need not review it, and
we decline to do so.

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“No discovery shall be permitted at any stage of [PCRA]
proceedings, except upon leave of court after a showing of
exceptional circumstances.” Pa.R.Crim.P. 902(E)(1). Neither the
PCRA nor the Pennsylvania Rules of Criminal Procedure define the
term “exceptional circumstances.” Commonwealth v. Frey, 41
A.3d 605, 611 (Pa. Super. 2012). This Court, however, has held
that “the trial court, in its discretion” determines whether a case
is exceptional and warrants discovery. Id. Thus, “[w]e will not
disturb a court’s determination regarding the existence of
exceptional circumstances unless the court abused its discretion.”
Id.

Commonwealth v. Watley, 153 A.3d 1034, 1048 (Pa. Super. 2016), appeal

denied, 169 A.3d 574 (Pa. 2017) (brackets in original).

Here, the PCRA court decided that Appellant’s discovery requests failed

to meet his burden of demonstrating exceptional circumstances. In fact, the

court concluded, many of Appellant’s requests were grounded only in mere

speculation that he might discover some exculpatory evidence. Appellant had,

or previously had, many of the documents, notably his own medical records.

Several of the requests involved documents not in possession of the

Commonwealth.

Bald assertions aside, Appellant fails to demonstrate how the documents

were exculpatory, or why the discovery requests were exceptional. The PCRA

court concluded that many of Appellant’s requests were no more than “a

fishing expedition.” PCRA Court Opinion, at 16. We discern no abuse of

discretion by the PCRA court, and we decline to disturb its ruling. Appellant’s

fifth claim merits no relief.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/15/19

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