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J-S05042-13

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. TOMMY WHITE, Appellant No. 108 MDA 2012 IN THE SUPERIOR COURT OF PENNSYLVANIA

Appeal from the Order of December 19, 2011, in the Court of Common Pleas of Berks County, Criminal Division at No. CP-06-CR-0001491-2005 BEFORE: SHOGAN, OTT and COLVILLE*, JJ. MEMORANDUM BY COLVILLE, J.: Filed: April 3, 2013

This case is an appeal from the order denying Appellant's petition under the Post Conviction Relief Act ("PCRA"). Appellant contends the PCRA court erred in not finding his trial counsel ineffective in one or more ways. We affirm the order.

In 2007, a jury convicted Appellant of first-degree murder and related offenses in connection with the stabbing death of the decedent. Appellant was sentenced to an aggregate term of life imprisonment. He later filed a PCRA petition and, after a hearing in 2009, thereby secured reinstatement of his direct appeal rights. He then filed a direct appeal to this Court. We

affirmed the judgment of sentence. Commonwealth v. White, 6 A.3d 568
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Retired Senior Judge assigned to the Superior Court.

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(Pa. Super. 2010) (unpublished memorandum). The Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. White, 12 A.3d 371 (Pa. 2010).

In 2011, Appellant filed a PCRA petition.

The court appointed PCRA

counsel. After a hearing, the PCRA court denied relief. Appellant lodged this appeal.

The following legal principles are relevant to each of Appellant's arguments. To establish ineffectiveness of counsel, a PCRA petitioner must show the underlying claim has arguable merit, counsel's actions lacked any reasonable basis, and counsel's actions prejudiced the petitioner.

Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009). Prejudice means that, absent counsel's conduct, there is a reasonable probability the outcome of the proceedings would have been different. Id.

Our standard for reviewing PCRA orders is to determine whether the court's rulings are supported by the record and free of legal error. Id. at 679. It is an appellant's burden to persuade us that the PCRA court erred and that relief is due. Commonwealth v. Wrecks, 931 A.2d 717, 722 (Pa. Super. 2007).

In his first claim, Appellant argues the PCRA court erred in not finding trial counsel ineffective for failing to investigate Appellant's mental health problems, for failing to communicate with Appellant about those problems

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and for failing to present proof of those problems at trial.

Ultimately,

Appellant's complaint is that counsel was ineffective in not introducing defense evidence that would have led to one of three verdicts different from the jury's determination that he was guilty of first-degree murder: (1) a verdict of not guilty by reason of insanity; (2) a verdict of guilty of thirddegree murder due to diminished capacity; or (3) a verdict of guilty but mentally ill. Appellant contends the PCRA court was wrong to find Appellant was not prejudiced by counsel's aforesaid alleged failure(s).

A successful insanity defense leads to an acquittal where the defendant proves that, during the offense, the defendant was under such a defect of reason, from a disease of the mind, as not to know the nature and quality of the defendant's act or, if the actor did know the quality thereof, the defendant did not know the act was wrong. 18 Pa.C.S.A.

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Pennsylvania Law