Com. v. Bidwell, J.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

:

v. :

:

:

JAMES MICHAEL BIDWELL :

:

Appellant : No. 174 EDA 2025

Appeal from the PCRA Order Entered December 9, 2024 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0002259-2016

BEFORE: LAZARUS, P.J., BOWES, J., and FORD ELLIOTT, P.J.E.* MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 27, 2026 Appellant, James Michael Bidwell, appeals from the order of the Court of Common Pleas of Monroe County that dismissed his first petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546 (“PCRA”), after an evidentiary hearing. He raises five claims alleging that the PCRA court erred in its review of his underlying challenges to his trial counsel’s effectiveness, a related cumulative prejudice claim concerning his trial counsel ineffective assistance claims, and three claims challenging the effectiveness of PCRA counsel. Upon review, we affirm.

On direct review, we adopted the following summary of the facts, which were prepared by the trial court:

Kristen Wagner [(decedent or victim)] was found hanging from [an electrical heating cord, inside] a refrigerated trailer in [a]

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* Retired Senior Judge assigned to the Superior Court.

scrap yard [owned and operated by Appellant] on June 2, 2011, at approximately 7:30 p.m. [Appellant’s] then-employee, Todd Bachman [(Bachman)], called 911 from [Appellant’s] scrap yard at 7:39 p.m. and [decedent] was officially declared dead at 9:08 p.m. The body showed signs of lividity on the back, which could only have occurred if the body was lying on its back for a period of time after death. Furthermore, the body had transfer dust on the back and shoulders, as if it had been laid down on a dusty surface prior to being hung. [The Commonwealth presented expert testimony from Michael Lucas (Lucas), who opined that t]he ligature used to suspend the body from the top of the trailer was insufficient to have sustained a self-inflicted hanging, as the body would likely have fallen out of the loop prior to death. Large, fresh boot impressions that did not belong to the victim were found around the body, specifically on a box just under where the ligature was hanging from the top of the trailer—a box the victim would have had to have used to secure the ligature for a self-

inflicted hanging because of her stature.

[Appellant] and the victim were seen together several hours prior to her death at the Cinder Inn, where the victim was in good spirits. The two appeared to be taking a lunch break from work at [Appellant’s] Crowe Road scrap yard. After the victim’s body was discovered, [Appellant] was contacted by [] Bachman and [Appellant] told him that [Appellant] was near Philadelphia.

Phone records show [Appellant] was actually near Gouldsboro, Pennsylvania, which is within an hour from the crime scene, at the time he received the call from Bachman. Indeed, [Appellant] was seen at O’Donnell’s Food and Spirits on the evening of June 2, 2011, and told a staff member that[,] if anyone asked, he was not there that evening.

There was also evidence indicating that [Appellant] reported the victim’s death to her father over the phone prior to anyone calling 911, [] indicating he had independent knowledge of her death.

[Appellant] and the victim had a tumultuous relationship, including an incident where [Appellant] was seen grabbing the victim by the neck and threatening to kill her.

In the weeks prior to her death, [Appellant] was suspicious that the victim had been responsible for [Appellant’s] arrest on drug charges in late 2010. Indeed, the victim had served as a confidential informant to the police regarding [Appellant’s] drug activity and expressed fear that [Appellant] would kill her if he

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discovered her involvement. Shortly after her cooperation with police, the victim was found dead on [Appellant’s] property.

Forensic pathologist Dr. Wayne Ross testified [at Appellant’s February 2020 trial] that the victim’s internal injuries and lack of external injuries led to the conclusion within a reasonable degree of scientific certainty that she was killed by compression to her neck in the form of a choke hold, as opposed to death by hanging.

Commonwealth v. Bidwell, 2021 WL 4391235, *1-2 (Pa. Super., filed Sept. 24, 2021) (unpublished memorandum) (102 EDA 2021), quoting Trial Court Opinion, 1/4/21, at 18-20 (record citations omitted).

In addition to the trial court’s summary, we previously compiled the following summary of the procedural history and trial evidence, as follows:

[T]he original investigation in 2011 led law enforcement to conclude that the decedent committed suicide. Then, in June 2014, Richard Gerber (Richard) contacted police and stated that Appellant had admitted to killing the decedent. Based on this information, the police reopened the investigation, and[,] in November 2016, the Commonwealth charged Appellant with [criminal homicide, tampering with evidence, and hindering apprehension or prosecution. 1]

On July 12, 2017, the Commonwealth filed a pre-trial motion in limine seeking to introduce, inter alia, prior bad acts evidence that Appellant was involved in trafficking methamphetamines.

Appellant filed an answer in opposition on August 15, 2017.

Appellant also filed a motion in limine asking the trial court to exclude the proposed testimony as well as the expert report of Michael Lucas.

By opinion and order entered December 15, 2017, the trial court ruled[:] (a) evidence of Appellant’s drug trafficking was relevant and admissible as possible motive and res gestae; and (b) any evidence showing Appellant had been charged or convicted for drug-related offenses was irrelevant and inadmissible. The court also denied Appellant’s request to exclude Lucas’s expert testimony.

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1 See 18 Pa.C.S. §§ 2501(a), 4910, and 5105(a)(3), respectively.

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At trial, the Commonwealth presented numerous witnesses, including Richard, who testified about Appellant’s alleged confession. See N.T. [Trial], 2/10/20, at 167-68 (stating Appellant admitted he “strangled [decedent] in the office, and then he drug her body out to the refrigerator [trailer]. …And [Appellant] said that he strung her up there and made it look like a … suicide[.]”). The defense vigorously cross-examined Richard to show Richard’s bias to present false testimony in exchange for preferential treatment from the Commonwealth in Richard’s criminal cases, and as retribution against Appellant for false accusations Appellant ha[d] made against Richard. See id. at 171-89.

Alyssa Benek (Benek), who Appellant employed at his scrap yard, also testified for the Commonwealth. Benek stated that[,]

approximately one week after decedent’s death, she met with Appellant and they smoked methamphetamine and engaged in sexual relations. Benek testified that during the encounter, Appellant admitted he had murdered decedent.

The Commonwealth also called Carmen Mercadante (Mercadante), who testified he attended the same church as Appellant and had counseled Appellant and his wife when they were having marital difficulties. [] Mercadante made improper remarks during his testimony concerning drug charges against Appellant, in violation of the motion in limine order. Appellant’s counsel moved for a mistrial on this basis. The trial court denied a mistrial, but issued a cautionary instruction to the jury.

The Commonwealth also called Lucas, who the trial court qualified, over the objection of the defense, as an expert in “forensic knot analysis.” [] Lucas opined, to a reasonable degree of scientific certainty, that decedent could not have committed suicide using the ligature that was found around her neck.

Likewise, Appellant called several witnesses, including Robert Riede. [] Riede testified that[,] while he was incarcerated with Richard Gerber, Richard told him he planned to offer false testimony at Appellant’s trial as retribution.

Bidwell, 2021 WL 4391235, *2-3 (footnote omitted).

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With respect to the medical expert testimony presented, Dr. Wayne Ross, testifying for the Commonwealth, opined that Wagner died from neck compression, due to a carotid neck hold or choke hold, and the manner of death was homicide. See N.T. Trial, 2/12/20, 55-56. In brief, the evidence he used to support his opinion included, inter alia, the ligature present at the scene and the lividity pattern, i.e., blood pooling, visible on the body. See id. at 22-29, 44. The ligature, a thin wire, was secured to the roof of the trailer. See id. at 21-22, 47. Dr. Ross explained that the markings on Wagner’s neck did not suggest that there was a knot in the ligature that would have been secured around Wagner’s neck. See id. at 24-25. Dr. Ross explained that, if Wagner had been alive when placed in such a ligature, the movements of the body during the asphyxiation would have caused her to fall out of the ligature. See id. at 25-30. As for the lividity, Dr. Ross observed a pooling of blood in the victim’s back. See id. at 30-35, 44. This led him to surmise that Wagner was dead and in a different position prior to being placed in the ligature for a staged hanging. See id. at 22-23, 34. Dr. Ross also cited the appearance of dust on the back of Wagner’s shoulder at the trailer and boot prints, larger than Wagner’s shoe size, at the scene as being consistent with the hanging having been staged. See id. at 45-54.

Appellant presented testimony from two doctors, Cyril H. Wecht, an expert in forensic pathology, and Samuel Land, the forensic pathologist who performed the autopsy of Wagner. Both opined that the Wagner died as a result of asphyxiation due to hanging and the manner of death was suicide.

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See N.T. Trial, 2/13/20, 14, 34, 75. Dr. Wecht noted that a tight ligature would have prevented Wagner from falling out of it and that the tightness of the ligature would prevent other findings such as petechiae, i.e., small blood spots or hemorrhaging, in the eyes. See id. at 21, 30-31.

The majority of Appellant’s claims in the instant appeal focus on the effectiveness of prior counsel with respect to the trial testimony of his wife, Jennifer Bidwell (hereafter, “Jennifer”). In a pre-trial motion in limine, the Commonwealth asserted that it intended to present prior bad acts evidence, concerning drug trafficking, assaults, and marital infidelity by Appellant, through, among other witnesses, Jennifer. See Commonwealth Motion in Limine, 7/12/17, ¶¶ 6, 9, 11. In particular, the Commonwealth sought to present testimony from Jennifer asserting that Appellant “believed that [Wagner] was an informant and involved in arranging for the stop of his truck whereupon he and Chase Argot were found in possession of a quantity of methamphetamine.” See Commonwealth’s Brief in Support of Motion in Limine, 10/13/17, 14 (unpaginated). The trial court granted in part the Commonwealth’s request to admit evidence of Appellant’s alleged drug trafficking, granted the Commonwealth’s request to admit evidence of marital infidelity, and denied the motion to the extent that it sought the admission of evidence of drug use by Appellant or that he had engaged in violent behavior

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towards women.2 See Order (Commonwealth Motion in Limine), 12/15/17, 1. The trial court ruled that evidence of alleged drug trafficking by Appellant, including a statement by Jennifer referring the fact that Appellant had suspected that Wagner was an informant in connection with a prior investigation of Appellant for drug trafficking, and evidence that Wagner was in fact an informant in that investigation of Appellant, were admissible for the limited purposes of establishing motive and res gestae. See Trial Court Opinion, 12/15/17, 13-19.

At trial, the Commonwealth presented testimony from Jennifer concerning: (1) Appellant’s marital history (see N.T. Trial, 2/11/20, 193-98); (2) her lack of knowledge of his “trafficking in meth” during their marriage (id. at 207-08); (3) emails between Appellant and Jennifer, addressing “problems” and “fights” between them, including one sent to her on the morning of May 31, 2011, talking about “[y]esterday” being “one of the hardest days of [his] life,” which Jennifer asserted was about “just another one of [their] fights” (id. at 209-27); (4) a June 1, 2011 email in which Jennifer asked Appellant about him “step[ping] outside [their] marriage” (see id. at 216-17); (5) Appellant’s suspicion that Wagner was an informant against him (see id. at 233-34); and (6) a dinnertime telephone call on June

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2 The Commonwealth unsuccessfully appealed the partial denial of its motion

in limine with respect to presenting evidence of drug use and prior violence toward women. See Commonwealth v. Bidwell, 195 A.3d 610 (Pa. Super. 2018), petition for allowance of appeal denied, 208 A.3d 459 (Pa. 2019) (table) (778 MAL 2018).

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2, 2011 (hours before the 9-1-1 call reporting Wagner’s death), from Appellant, in which Appellant was upset and informed Jennifer about Wagner being “dead” and “hanging” (see id. at 239-49). Defense counsel’s cross- examination of Jennifer focused on the possibility that she had been confused about the time of the June 2, 2011 phone call from Appellant and that perhaps it had occurred later that evening. See id. at 258-63.

From February 5-18, 2020, Appellant was tried by a jury who found him guilty of first-degree murder.3 See N.T. Trial, 2/18/20, 215; Order (Jury Trial/Verdict), 2/18/20, 1. Sentencing was deferred for the preparation of a pre-sentence investigation report. See N.T. Trial, 2/18/20, 216. On July 27, 2020, the trial court sentenced Appellant to life imprisonment without the possibility of parole. See Order (Sentencing), 7/27/20, 1. Appellant filed a timely post-sentence motion alleging after-discovered evidence that Gerber had perjured himself and fabricated Appellant’s confession to him, the Commonwealth had given Gerber preferential treatment in his own criminal case, and that the Commonwealth never disclosed that evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). See Post-Sentence Motion, 7/29/20; see also Appellant’s Brief in Support of Post-Sentence Motion, 9/24/20. The trial court held an evidentiary hearing on that motion on August 11, 2020, and denied the motion on December 22, 2020. See Order (Evidentiary Hearing), 7/31/20, 1; Order (Extension of Time to Rule on Post-

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3 18 Pa.C.S. § 2502(a).

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Sentence Motion), 8/13/20, 1; Order (Denial of Post-Sentence Motion), 12/22/20, 1. Appellant timely appealed. See Notice of Appeal, 12/22/20, 1.

On direct review, Appellant challenged the denial of the after-discovered evidence claim, the admission of Lucas’s expert testimony that the “ligature material and manner of use was not consistent with a suicide,” the denial of a mistrial on the basis of a prosecutorial misconduct objection about the elicitation of testimony from Mercadante about Appellant having been previously convicted of drug charges, and the limitation on the scope of cross- examination of Mercadante. See Bidwell, 2021 WL 4391235, *3-13. On September 24, 2021, we affirmed the judgment of sentence. See Commonwealth v. Bidwell, 264 A.3d 395 (Pa. Super. 2021) (table) (102 EDA 2021). On March 30, 2022, our Supreme Court denied a petition for allowance of appeal filed by Appellant. See Commonwealth v. Bidwell, 275 A.3d 962 (Pa. 2022) (table) (578 MAL 2021).

On February 28, 2023, Appellant timely filed a counseled PCRA petition. 4 Therein, he raised six claims challenging the effectiveness of his trial counsel. He alleged that counsel was ineffective for failing to: (1) “move in limine to bar or object at trial to spousal privileged communications testimony by [Jennifer Bidwell] as the communications were made while the two were still married and there was no waiver of the privilege by” Appellant; (2) “move in

limine to bar or object at trial to police and [emergency medical technician]

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4 New counsel entered their appearance on Appellant’s behalf on November 15, 2022. See Praecipe for Appearance, 11/16/22, 1.

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testimony and documentation that the death appeared to be ‘suspicious’ as neither witness was qualified as an expert”; (3) “move in limine to bar or object at trial to the fact that … Wagner had identified [Appellant] as being involved in the sale of illegal drugs” in the absence of a limiting instruction; (4) “move in limine to bar or object at trial to the testimony of witness Alyssa Benek that she used drugs with [Appellant] including within a week after the death of [Wagner] and that Benek and [Appellant] slept together that night”; (5) “object to the questioning of defense expert Dr. Wecht with a series of research articles in violation of the ‘learned treatise[’] rule”; and (6) object to a series of arguments made by the prosecutor during closing argument. 5 See PCRA Petition, 2/28/23, ¶ 10(a)-(f); see also Memorandum of Law, 2/28/23. In the memorandum of law attached to his counseled petition, Appellant also raised a claim of cumulative prejudice premised on the six trial counsel ineffectiveness claims raised in his petition. See Memorandum of Law, 2/28/23, 10-11 (unpaginated).

On October 5, 2023, Appellant filed a counseled supplemental PCRA petition raising an additional seven claims challenging trial counsel’s

effectiveness.6 After the Commonwealth filed answers to the petition and the

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5 In this appeal, Appellant abandoned the second and sixth trial counsel ineffective assistance issues raised in this petition. Accordingly, we decline to address the PCRA court’s review of these claims herein.

6 Therein, Appellant alleged that trial counsel was ineffective for failing to: (1)

adequately prepare for trial by, inter alia, retaining a private investigator “to (Footnote Continued Next Page)

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supplemental petition and a brief in opposition to the supplemental petition, Appellant filed a motion to withdraw the supplemental petition. See Petition to Withdraw Supplemental Petition, 2/12/24. The court then granted the withdrawal request and ordered an evidentiary hearing. See Order (granting petition to withdraw supplemental petition and scheduling hearing), 2/15/24, 1. The PCRA court presided over that hearing on July 11, 2024.

As to the absence of an objection to Jennifer Bidwell’s testimony, trial counsel explained at the evidentiary hearing that there was no strategic reason for not objecting other than the testimony was unrelated to the intended defense that Wagner had died by suicide:

I don’t know that I had a strategic basis for it. My recollection quite frankly was that the defense in the case was simply that she hadn’t been murdered, that she committed suicide and that all of the issues of motive … were red herrings in connection with what was not a murder. But in terms of strategy, I didn’t have any strategic reason for not objecting.

N.T. PCRA Hearing, 7/11/24, 12.

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investigate Commonwealth witness Richard Gerber and as well as other Commonwealth witnesses”; (2) “obtain Richard Gerber’s police reports, records, and [information concerning] investigations conducted by [the] Pocono Township Police and the Pennsylvania State Police”; (3) “retain a forensic expert to retrieve any and all text messages exchanged between [Appellant] and [Wagner] from [Wagner’s] phone”; (4) retain a forensic expert “to retrieve any and all text messages exchanged between [Appellant] and [Wagner] from [Appellant’s] phone”; (5) retain a forensic expert “to retrieve any and all text messages and data from the iPad owned by Christian Waste that was turned over to the Commonwealth by Jenn[ifer] Bidwell”; (6) moving “to suppress or challenge any evidence obtained from [Appellant’s] phone and iPad, which was turned over to the Commonwealth by Jenn[ifer] Bidwell”; and (7) “obtain any and all Monroe County Jail records regarding Richard Gerber.” Supplemental PCRA Petition, 10/5/23, ¶ 4.

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When directed to Benek’s testimony about her drug use with Appellant, trial counsel explained that he used that testimony to discredit Benek’s testimony about Appellant’s confession to her about killing Wagner:

I thought that the entire line of cross-examination where she was concerned was that she was actively under the influence of drugs taking drugs with [Appellant] at the time she said she heard and made these -- provided this testimony concerning these admissions and that she was a completely incompetent and unbelievable witness. But that’s my recollection. I would have to look at the transcripts, but I think that’s kind of how I attacked her.

N.T. PCRA Hearing, 7/11/24, 19.

In response to PCRA counsel’s questioning about the possibility for a strategic reason for not objecting to the Commonwealth’s cross-examination of Dr. Wecht, concerning whether he reviewed studies referenced by Dr. Ross, trial counsel agreed he had no strategic reason for not objecting but stated that he thought the Commonwealth’s questions “were the proper subject of cross-examination.” N.T. PCRA Hearing, 7/11/24, 21-22. At the same time, he admitted that he did not know if he had looked at the same materials and stated that he did not remember them. See id. at 22-23.

After hearing the testimony from trial counsel, the PCRA court granted PCRA counsel’s request for leave to file a post-hearing brief. See N.T. PCRA Hearing, 7/11/24, 29; Order (ordering the submission of a transcript for the PCRA hearing and setting a deadline for post-hearing briefs), 7/11/24, 1. Appellant filed a memorandum of law on October 18, 2024, and the Commonwealth filed a response on October 22, 2024. On December 9, 2024,

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the PCRA court issued an order dismissing Appellant’s petition and an opinion explaining its rationale for denying Appellant’s ineffectiveness claims. See Order (dismissing PCRA petition), 12/9/24, 1; PCRA Court Opinion, 12/9/24.

On January 7, 2025, present counsel entered their appearance as Appellant’s counsel and filed a timely notice of appeal on Appellant’s behalf. See Praecipe for Entry of Appearance, 1/7/25, 1; Notice of Appeal, 1/7/25, 1. Appellant subsequently filed a timely court-ordered concise statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). See Order (Rule 1925), 1/9/25, 1; Rule 1925(b) Statement, 1/30/25, 1-5. In his Rule 1925(b) statement, Appellant challenged the denial of the six claims of trial counsel ineffective assistance that were included in his petition and his related cumulative prejudice claim, and raised – for the first time – three challenges to the effectiveness of his PCRA counsel. See Rule 1925(b) Statement, 1/30/25, ¶¶ 1-11.

In between the dismissal of Appellant’s PCRA petition and the filing of his notice of appeal, the PCRA judge retired from the bench. See PCRA Court’s Statement Pursuant to Pa.R.A.P. 1925(a), 2/10/25, 1. The new judge subsequently sitting as the PCRA court relied on the prior jurist’s December 9, 2024 opinion with respect to the denial of the trial counsel ineffectiveness claims. See id. at 1. The new judge also addressed the underlying merits of the newly-raised PCRA counsel ineffectiveness claims, for the sake of judicial economy, and found that that they could be denied based on information of

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record without the need for a remand for additional proceedings. See id. at 2-5.

Appellant presents the following questions for our review:

I. Did the PCRA [c]ourt err in finding trial counsel effective and that [Appellant] received a fair trial where trial counsel failed to request that a limiting instruction be provided to the jury at the time that the prosecution presented testimony concerning [Appellant’s] alleged involvement in drug trafficking?

II. Did the PCRA [c]ourt err in concluding that the use at trial of publications during the cross-examination of the defense expert did not implicate the “learned treatise rule” and that [Appellant’s] claim that trial counsel was ineffective for not objecting to the use of these articles is without merit?

III. Where [Appellant’s] wife testified that [he] expressed a belief to her that [Wagner] was an informant and trial counsel failed to object to that testimony based on the spousal privilege, did the PCRA [c]ourt err in concluding that the spousal privilege did not apply and that trial counsel was effective?

IV. Did the PCRA [c]ourt err in concluding that trial counsel was effective and that [Appellant] received a fair trial where trial counsel failed to object to the admission of testimony concerning [Appellant’s] communications with his spouse in which he purportedly advised his wife that [Wagner]

committed suicide?

V. Did the PCRA [c]ourt err in finding trial counsel effective and that [Appellant] received a fair trial where trial counsel did not object to testimony concerning Bidwell’s alleged drug use, which testimony was presented in violation of the trial court’s pretrial rulings?

VI. Did the PCRA [c]ourt err in concluding [Appellant] suffered no prejudice or cumulative prejudice from any of the acts or omissions of trial counsel giving rise to Bidwell’s claims of ineffective assistance of counsel?

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VII. Whether PCRA [c]ounsel was ineffective for failing to raise trial counsel’s ineffectiveness for failing to object to testimony regarding [Appellant] supplying drugs to, among others, Benek where testimony concerning [Appellant’s]

drug activity went beyond the trial court’s pre-trial ruling?

VIII. Whether PCRA [c]ounsel was ineffective for failing to raise trial counsel’s ineffectiveness for failing to object during pretrial proceedings to the admission of statements from Jennifer Bidwell that [Appellant] expressed his suspicion to her that [Wagner] was an informant where those statements were subject to the spousal privilege?

IX. To the extent that a determination is made that Jennifer Bidwell’s trial testimony reflects that a conversation with [Appellant] about his suspicion that [Wagner] was an informant was not a confidential marital communication, whether PCRA [c]ounsel was ineffective for failing to establish that this communication only occurred between Jennifer Bidwell and [Appellant] and was a marital communication?

Appellant’s Brief, 5-6 (Roman numeral prompts added; emphasis in original).

In reviewing an order denying a PCRA petition, our standard of review is well-settled:

[O]ur standard of review from the denial of a PCRA petition is limited to examining whether the PCRA court’s determination is supported by the evidence of record and whether it is free of legal error. The PCRA court’s credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court’s legal conclusions.

Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019) (citations and quotation marks omitted).

All of Appellant’s claims presented in this appeal challenge the effectiveness of his prior counsel. To prevail on an ineffective assistance of

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counsel claim, the petitioner must establish: “(1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). The failure to satisfy any prong of the test for ineffectiveness will cause the claim to fail. See Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 2011). To establish prejudice, “the petitioner must show that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel’s ineffectiveness.” Id. at 1127-28. “Pennsylvania law presumes counsel has rendered effective assistance.” Commonwealth v. Mullen, 267 A.3d 507, 512 (Pa. Super. 2021).

Appellant’s first five claims challenge the effectiveness of his trial counsel. His sixth claim alleges the existence of cumulative prejudice resulting from trial counsel’s alleged ineffectiveness addressed in the preceding five claims. Appellant’s three remaining claims challenge the effectiveness of his PCRA counsel, and were presented for the first time in Appellant’s Rule 1925(b) statement, after he obtained new counsel. Those claims may be reviewed pursuant to Commonwealth v. Bradley, 261 A.3d 381, 401 (Pa. 2021) (“a PCRA petitioner may, after a PCRA court denies relief, and after obtaining new counsel or acting pro se, raise claims of PCRA counsel’s ineffectiveness at the first opportunity to do so, even if on appeal.”) (footnote omitted). Provided that “the record before [us is] sufficient to allow for disposition of [the] newly-raised ineffectiveness claim[s],” we may address

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Appellant’s PCRA counsel ineffectiveness claims without the need for a remand. Id. at 402. We will address Appellant’s claims in the order in which he presents them.

In his first issue, Appellant asserts that the PCRA court erred by denying relief on his claim that trial counsel was ineffective for not requesting a limiting instruction for testimony concerning his alleged involvement in drug trafficking. See Appellant’s Brief, 23-31. He acknowledges that this testimony was permitted, following the litigation of the Commonwealth’s pre- trial motion, pursuant to the motive and res gestae exceptions to Pennsylvania Rule of Evidence 404(b)’s prohibition on the presentation of prior bad acts evidence. See id. at 24. He argues that, in the absence of a limiting instruction, the jury would have improperly considered this testimony as evidence suggesting that he was “dangerous” and “had a propensity to engage in criminal activity.” Id. at 28, 30. He asserts that he was entitled to a limiting instruction contemporaneous to the presentation of the testimony at issue, notes that trial counsel’s testimony at the PCRA hearing did not reveal any reason why a limiting instruction was not requested, and alleges that the absence of an instruction prejudiced him. See id. at 29-31.

The PCRA court denied the instant claim for lack of prejudice because, even in the absence of a request for a contemporaneous limiting instruction, the court included a proper limiting instruction in its concluding instructions to the jury. See PCRA Court Opinion, 12/9/24, 26. The record reflects that the trial court instructed the jury as follows:

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You may also have heard evidence, if believed by you, tending to show that the defendant engaged in illegal conduct for which he is not on trial, and that is the testimony regarding Mr. Bidwell’s sale of methamphetamine. That evidence is before you for a very limited purpose and that’s for the purpose of showing motive for alleged conduct in this case and to give a context and history to the circumstances surrounding the death of Kristen Wagner. This evidence must not be considered by you in any way other than for the purpose that I just stated. You must not regard this evidence as showing that the defendant is a person of bad character or criminal tendencies from which you might be inclined to infer guilt.

N.T. Trial, 2/18/20, 191.

Appellant rejects the PCRA court’s notion that this concluding instruction eliminated any potential prejudice from trial counsel’s failure to request an instruction contemporaneous with the admission of the testimony. He argues, “[b]y that time, it was too late.” Appellant’s Brief, 30. He refers to “[s]ettled law” establishing an entitlement to a contemporaneous instruction, see id. at 30-31, citing Commonwealth v. Coleman, 230 A.3d 1042, 1048 (Pa. 2020), but does not refer us to any controlling precedent for his argument that the belated instruction “was not sufficient” to prevent prejudice. See id. at 30; see also Appellant’s Reply Brief, 4-8. Upon our review, we conclude that Appellant’s argument is belied by our precedent, and that precedent also mandates a finding that there was no merit to the underlying ineffectiveness claim.

In Commonwealth v. Webb, 236 A.3d 1170 (Pa. Super. 2020), we rejected an argument identical to the one Appellant is making. In that case, the defendant, Webb, was facing a homicide charge in connection with a fatal

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shooting. See id. at 1172-73. During the course of the trial, which did not involve any related drug-dealing charges, defense counsel and the Commonwealth elicited testimony concerning defendant Webb’s activities as a “low-level drug dealer” at the time of the shooting. Id. at 1176. Like Appellant, Webb claimed on collateral appeal that his trial counsel was ineffective for “failing to request a cautionary instruction regarding the prior crimes evidence at the earliest possible moment rather than waiting for the court to include such instruction in the jury charge.” Id. at 1179. We noted, inter alia, that the claim failed because “the law is clear that such an instruction may be given as part of the general charge.” Id. We relied on the following passage from our Supreme Court for that conclusion:

This Court has held that a limiting instruction may be given either as the evidence is admitted or as part of the general charge.

[See] Commonwealth v. Covil, 378 A.2d 841, 845 ([Pa.] 1977).

Rule 1119(d) of the Rules of Criminal Procedure, adopted after Covil, likewise states that a trial judge may give instructions to the jury before the taking of evidence or at any time during the trial as the judge deems necessary and appropriate for the jury’s guidance in hearing the case. [See] Pa.R.Crim.P. 1119(d). The Comment to the Rule reaffirms that the determination of when to charge the jury is discretionary with the trial court: It is intended that the trial judge determine on a case by case basis whether instructions before the taking of evidence or at any time during trial are appropriate or necessary to assist the jury in hearing the case. Furthermore, although the Court in Covil expressed a preference that trial court give a limiting instruction at the time the evidence is introduced, where possible, Covil itself approved a determination in that case to postpone issuing the charge. [See Covil,] 378 A.2d at 846.

Webb, 236 A.3d 1179, quoting Commonwealth v. Spotz, 759 A.2d 1280, 1286-87 (Pa. 2000) (parallel citations omitted).

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Here, Appellant does not address, much less distinguish, our application of Spotz in Webb on essentially an identical argument. Consistent with Webb, “we perceive no arguable merit to Appellant’s ineffectiveness claim assailing counsel’s decision to allow the court to wait until the general jury charge before explaining the specific, appropriate purpose of the other crimes evidence.” Webb, 236 A.3d at 1180. Likewise, Webb compels us to accept the PCRA court’s lack of prejudice finding because, as we noted in that case, “[j]uries are presumed to follow instructions.” Id., citing Commonwealth v. Speight, 854 A.2d 450, 458 (Pa. 2004). As such, we conclude that the PCRA court properly denied the instant ineffectiveness claim. Moreover, we conclude that the claim fails, pursuant to Webb, under both the arguable merit and prejudice prongs.

In his second issue, Appellant asserts that the PCRA court erred by denying relief on his claim that trial counsel was ineffective for failing to object to the Commonwealth’s cross-examination of Dr. Cyril Wecht about whether the doctor was familiar with studies referenced by the Commonwealth’s expert, Dr. Wayne Ross, and when the Commonwealth proceeded to read excerpts from those studies to ask Dr. Wecht questions about them. See Appellant’s Brief, 32-43. He argues that, in the absence of a recognized hearsay exception in Pennsylvania for learned treatises, the contents of the studies, read into the record through the cross-examination of Dr. Wecht, constituted inadmissible hearsay. See id. at 34-37. He further argues that the studies at issue could not be the subject of impeachment in the absence

21

of a foundation showing that these studies were accepted as “authoritative or as reliable authority” by members of a professional community. Id. at 36-37. He thus concludes that trial counsel should have objected to the Commonwealth’s use of these studies in the cross-examination of Dr. Wecht. See id. at 36-37.

As to hearsay, which is an out-of-court statement offered “in evidence to prove the truth of the matter asserted in the statement,” Pa.R.E. 801(c), our Supreme Court held in Aldridge v. Edmunds, 750 A.2d 292, 297 (Pa. 2000), that, “if published material is authoritative and relied upon by experts in the field, although it is hearsay, an expert may rely upon it in forming his opinion.” Id. However, such materials may not be offered “for their direct substantive effect” as opposed to providing an explanation as to “the basis for the expert’s own opinion[.]” Id. (citation omitted). Further, we have noted:

On cross-examination, an expert witness may be questioned on the contents of any publication on which he or she relied in forming an opinion, or one in the field that he or she considers generally reliable; the evidence is admissible to challenge the witness’s credibility, but the writing cannot be admitted for the truth of the matter asserted. Excerpts from a publication which are read into the evidence for the purpose of proving the truth of the statements contained therein constitute hearsay and, therefore, are inadmissible. This fact is not changed merely because the document is read into evidence by the witness instead of being received as an exhibit for inspection by the jury. It is the purpose for which the information is offered, not the manner in which [it] is introduced, which makes it objectionable.

Hassel v. Franzi, 207 A.3d 939, 947 (Pa. Super. 2019) (citations omitted).

22

In Alridge, our Supreme Court directed that trial courts should exercise caution and issue limiting instructions when allowing the use of learned treatises to ensure that the publications themselves did not become the focus of the examination and supersede the expert’s own testimony. See Aldridge, 750 A.2d at 297-98. “A trial court’s failure to limit the use of treatises effectively may constitute grounds for reversal only if the issue was properly preserved at all stages of the proceedings and prejudice can be established.” Crespo v. Hughes, 167 A.3d 168, 185-87 (Pa. Super. 2017) (citation omitted).

In denying this trial counsel ineffectiveness claim, the PCRA court found that it lacked arguable merit because the studies addressed in the cross- examination of Dr. Wecht were used only to impeach the witness rather than for any substantive truth included therein, and a proper foundation was laid for the use of the studies in that manner:

Here, the specific scientific studies were identified in the Commonwealth’s expert, Dr. Ross’, report, which Dr. Wecht admitted to reviewing prior to the trial. Despite this, Dr. Wecht did not take the opportunity to review any of the cited studies for the expert opinion he had been retained to refute.

…

As for [Appellant’s] argument that the information was without any foundation, we must disagree. Dr. Ross testified that[,] due to the positioning of the loop of wire around the [v]ictim’s neck, she could not have hung herself. Dr. Ross offered in his expert opinion, in part based upon the cited studies by Dr. [Anny]

Sauvageau, that because of the involuntary movements of a body that is in the process[] of hanging, [the v]ictim would have slipped from the large looped wire prior to death. Dr. Wecht[] did not

23

offer any consideration of these “agonal responses” in his direct examination, despite Dr. Ross’ contradictory opinion and testimony. It was fair for the Commonwealth to question whether the defense expert had taken this into consideration in forming his own opinion.

In summary, Dr. Wecht was confronted with studies that had been previously identified to him, but he had failed to review, was questioned if he agreed with portions pertaining to the involuntary movements of the human body, which he did based upon his own knowledge and experience, and was asked if he had considered the applicability of that knowledge in his determination of the [v]ictim’s cause of death. We agree with [trial counsel] that the sequence that [led] to the introduction of passages from Dr.

Sauvageau’s work was not that which is implicated by the Learned Treatise Rule and that [Appellant’s] underlying claim of ineffective assistance of counsel is without merit.

PCRA Court Opinion, 12/9/24, 42-43 (record citations and footnote omitted).

Appellant assails the PCRA court’s analysis on multiple grounds. He alleges that there was no proper foundation for use of the studies in the cross- examination of Dr. Wecht because neither Dr. Ross nor Dr. Wecht testified that the studies were authoritative or reliable. See Appellant’s Brief, 37. Moreover, he notes, “simply because Dr. Wecht did not disagree with some of the statements presented by the prosecutor from the studies does not mean that the studies were authoritative or reliable.” Id. at 39. In the absence of testimony affirming the recognition of these studies as “learned treatises,” Appellant asserts that they were improperly admitted hearsay. He further argues that trial counsel had no reasonable strategy in not objecting to the references to the studies and that he was ultimately prejudiced. See id. at 39-43.

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Upon our review of the record, we find that Appellant is correct with respect to the arguable merit prong of the ineffectiveness standard. The cross-examination of Dr. Wecht that quoted from the Sauvageau studies could only occur with a proper foundation for the studies’ authoritativeness or reliability along with a limiting instruction to notify the jury of the limited use of the studies for impeachment purposes only. 7 Here, there was no foundation laid. We do not perceive any questioning of Dr. Ross concerning his reliance on the Sauvageau studies and Dr. Wecht could not supply a foundation where he had never reviewed them prior to trial. See N.T. Trial, 2/13/20, 53. Additionally, there was no effort to notify the jury of the limited permitted use for the studies in the cross-examination: trial counsel never requested a limiting instruction and the trial court did not sua sponte include a related instruction in its general charge. In these circumstances, trial counsel failed to interpose a meritorious objection to the prosecutor’s quoting from the Sauvageau studies in the cross-examination. See Burton-Lister v. Siegel, Sivitz & Lebed Assocs., 798 A.2d 231, 239 (Pa. Super. 2002) (trial court abused its discretion when it permitted appellee to “read into the record” parts of learned treatise while cross-examining appellant doctor).

____________________________________________

7 The cross-examination that highlighted that Dr. Wecht had not reviewed or

considered the studies relied upon by the Commonwealth’s expert, disclosing the possible inadequacy of his opinion, was permissible. It is only the reading of portions of the studies into the record without a proper foundation that was objectionable at trial.

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However, we do not find that Appellant satisfied the prejudice prong for this ineffectiveness claim. To do so, he would have needed to show that, “but for counsel’s deficient stewardship, there is a reasonable likelihood the outcome of the proceedings would have been different,” Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013) (citation omitted), i.e., that the outcome of his trial would have been different if counsel had objected and prevented the jury from hearing about the studies addressed in the cross- examination of Dr. Wecht. Appellant did not make that showing here because the portions of the studies referenced by the prosecutor merely involved the types of movements a body would undergo during asphyxiation and the loss of consciousness that would occur during a hanging, issues that were not in dispute between the parties’ experts. Dr. Wecht repeatedly noted that he did not disagree with the contents of the studies that the prosecutor read for him. See N.T. Trial, 2/13/20, 53 (“I would not disagree”); id. at 58 (“if that’s what she observed, I have no problem with that”); id. at 58-59 (“if those are her findings, [it] may make sense there would be respiratory distress, I have no problem with that.”).

The issue that was in dispute between the experts was whether the movements of the victim’s body while asphyxiating would have spontaneously dislodged her from the ligature. That determination relates to whether the ligature was tightly affixed around the victim’s neck at the time of her death. Since the referenced portions of the studies did not discuss ligature tightness or whether a person could spontaneously dislodge themselves from a ligature,

26

the specific references in cross-examination to the Sauvageau studies would not have materially impacted the jury’s verdict. Indeed, Appellant only asserts that the prejudice from the Sauvageau studies was “patent” because “the prosecutor used [them] to support his theory of the case, i.e., that the forensic pathology was not consistent with a suicide hanging,” but wholly fails to explain with any particularity which contents were actually harmful to his defense. We discern that the passages read, to which Dr. Wecht did not state any disagreement, were inconsequential to the jury’s ultimate question concerning the manner of the victim’s death. Accordingly, we find that defendant failed to demonstrate that he was prejudiced by trial counsel’s failure to object during the cross-examination of Dr. Wecht.

In his third issue, Appellant asserts that the PCRA court erred by denying relief on his claim that trial counsel was ineffective for not objecting on the grounds of spousal privilege to Jennifer’s testimony about Appellant’s supposed belief that Wagner was a police informant against him. See Appellant’s Brief, 43-50. He alleges that, without this testimony, there would not have been any proof he had a motive to kill Wagner. See id. at 45. He reasons that this testimony from Jennifer was based on a “conversation [that] was privileged, as [it] occurred while [Appellant] and Jennifer Bidwell were married.” Id. at 46, citing 42 Pa.C.S. § 5914 (spousal communication privilege). He alleges, “[g]iven the circumstantial nature of the case, and the contradictory testimony, [he] was prejudiced by [t]rial [c]ounsel’s failure to object to the privileged communications.” Appellant’s Brief, 48.

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The Commonwealth’s spousal communication privilege is codified by statute as follows: “Except as otherwise provided in this subchapter, in a criminal proceeding neither husband nor wife shall be competent or permitted to testify to confidential communications made by one to the other, unless this privilege is waived upon the trial.” 42 Pa.C.S. § 5914. We explained the applicability of this statute as follows:

This privilege prevents a husband or wife from testifying against their spouse as to any communications which were made during the marital relationship. The privilege remains in effect through death or divorce. The confidential communication cannot be divulged without the consent of the other spouse. The public policy sought to be enhanced by this privilege is the preservation of marital harmony and the resultant benefits to society from that harmony. Communications between spouses are presumed to be confidential, and the party opposing application of the rule disqualifying such testimony bears the burden of overcoming this presumption. In order for a confidential communication between spouses to be protected, knowledge must be gained through the marital relationship and in the confidence which that relationship inspires. In order to be protected under [section] 5914, it is essential that the communication be made in confidence and with the intention it not be divulged.

Commonwealth v. McBurrows, 779 A.2d 509, 514 (Pa. Super. 2001) (en banc) (internal quotation marks and citations omitted). Thus, “[w]hile communications between spouses are presumed to be confidential under section 5914, it has long been recognized that whether a particular communication is privileged depends upon its nature and character and the circumstances under which it was said.” Commonwealth v. Hunter, 60 A.3d 156, 159-60 (Pa. Super. 2013) (citation and footnote omitted).

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Appellant’s instant claim is based on the following testimony from Jennifer Bidwell:

Q. Now during the time period that followed, it’s fair to say that Mr. Bidwell felt that there was somebody – [maybe] more than one -- person but somebody was informing on him; is that fair to say?

A. Yes, that was in the paperwork[,] that there w[ere] several confidential informants.

Q. That was part of the search warrant paperwork for the stop?

A. Yes.

***

Q. In the search warrant paperwork[,] you said there were multiple informants?

A. Yes.

Q. And how many? Do you remember?

A. No, it didn’t say.

Q. More than one?

A. Yes.

Q. And among those, did you and your husband suspect that Kristen [Wagner] may have been an informant?

A. Yeah.

Q. That was pretty common as a thought anyway; right?

A. Yeah, that came up.

Q. Did it come up once or more than once?

29

A. It came up many times that there was a possibility of, like, three or four different people --

Q. Sure.

A. -- that were the informants.

Q. And we heard --

A. It was talked about with groups of people like who would that be.

Appellant’s Brief, 44-45, quoting N.T. Trial, 2/11/20, 232-34.

The PCRA court acknowledged that it was uncontested that Jennifer Bidwell remained married to Appellant, but separated from him, at the time the subject communications were made. See PCRA Court Opinion, 12/9/24, 9-10. Despite that, the court found that there was no arguable merit to the ineffectiveness claim because the statements were made in front of third parties without a reasonable expectation of privacy and thus were not privileged. See id. at 11-12. The PCRA court based that conclusion on Jennifer’s testimony remarking that the identities of the confidential informants were “talked about with groups of people.” See id. at 12. The court noted, “The presence of a third-party to a discussion destroys any spousal privilege that may exist.” Id. Because the court determined that the communications at the focus of this ineffectiveness claim were made in front of third parties, the court found that counsel was not ineffective for raising a meritless claim that the testimony at issue was privileged. See id.

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Appellant argues that the PCRA court incorrectly interpreted Jennifer’s testimony to conclude that his communications with Jennifer were not confidential. See Appellant’s Brief, 49-50. In particular, he asserts:

First, Jennifer Bidwell testified that [Appellant] suspected that [Wagner] may have been an informant. This testimony supported the Commonwealth’s theory that [Appellant’s] motive to kill [Wagner] was based on this suspicion.

Thereafter, the questioning then shifted from a conversation between she and her husband to talk among other individuals.

Specifically, the prosecutor stated to Jennifer that [Wagner] being an informant “was pretty common as a thought anyway…,” which statement was confirmed by Jennifer Bidwell. Jennifer Bidwell went on to note that it came up among others. Nothing in the testimony indicates, however, that others were present when Bidwell purportedly expressed his suspicion to his wife. What the [r]ecord does reflect is that [Appellant] shared that suspicion with Jennifer Bidwell. And, even though Jennifer Bidwell testified that they heard that others talked about who the informants could be, the [r]ecord is devoid of testimony that [Appellant] expressed his suspicion to anyone other than his wife that [Wagner] was an informant. Jennifer Bidwell’s testimony squarely falls within the spousal privilege. The PCRA [c]ourt’s factual findings are not supported by the [r]ecord, and its legal conclusion that the spousal privilege does not apply was erroneous.

Appellant’s Brief, 49-50 (record citations omitted; emphasis in original).

We do not agree with Appellant’s interpretation of Jennifer Bidwell’s testimony. The question, “[D]id you and your husband suspect that Kristen [Wagner] may have been an informant?,” interspersed within the cited section of Jennifer’s testimony, directed the witness’s discussion to suspicions that both she and Appellant held concerning Wagner’s status as an informant. When Jennifer Bidwell subsequently remarked, “It was talked about with groups of people like who would that be,” the reasonable interpretation was

31

that, through the use of passive voice tense, that Jennifer was referring to identical discussions of their suspicions that they both had with “groups of people.” Accordingly, we agree that the instant ineffectiveness claim lacked arguable merit.

Notably, the PCRA court, which previously sat as the trial court, and originally heard the testimony from Jennifer Bidwell, was in the best position to assess the meaning of Jennifer’s testimony. We will not accept Appellant’s invitation to reinterpret the witness’s testimony based on the cold record before us. Cf. Commonwealth v. Sanchez, 262 A.3d 1283, 1288 (Pa. Super. 2021) (“Where issues of credibility and weight of the evidence are concerned, it is not the function of the appellate court to substitute its own judgment based on a cold record for that of the trial court.”) (citation omitted).

In the fourth issue presented, Appellant asserts that the PCRA court erred by rejecting a separate trial counsel ineffective assistance of counsel claim premised on the Section 5914 spousal communication privilege. See Appellant’s Brief, 51-57. He alleges that trial counsel should have objected to Jennifer’s testimony concerning a phone conversation between them in which he advised her that Wagner had committed suicide. See id. at 51. Appellant’s claim directs us to the following section of Jennifer’s testimony:

Q. As I remember, you said you first found out about Kristen[ Wagner’s] death from Mr. Bidwell.

A. Yes.

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Q. That you were home in Hopatcong, New Jersey, at the time when you got a telephone call?

A. Yes.

Q. I imagine your mom was home and your stepfather [too?]

A. Yes.

Q. And the kids?

A. Probably.

Q. Okay. The call came in and Mr. Bidwell sounded very, very upset[?]

A. Yes.

Q. Like crying kind of upset[?]

A. Yes.

Q. Was it difficult initially to understand what he was saying?

A. Yes.

Q. So[,] you went and you took the call in the bathroom[?]

A. Yes.

Q. One bathroom in the house or more than one?

A. More than one.

Q. Okay. Which bathroom was it? Is it on a different floor?

A. The main bathroom.

Q. The main bathroom. So you could hear better?

A. I excused myself from the dinner table. Everybody was sitting there; so I went to the bathroom.

Q. And you were able to hear words like [“]she’s dead[”]?

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A. Yes.

Q. [“]She’s hanging.[”]

A. I remember “she’s dead.”

Q. She’s dead. She’s hanging. And you said[, “W]ho?[“]

A. Right.

Q. Eventually he says, “Kristen”; is that fair to say?

A. Yes.

Q. Now, at that point, now you hear the name Kristen. You and he start arguing?

A. Yes.

Q. Arguing because you were upset that he was with a female, and Kristen in particular?

A. Yes.

Q. So[,] you tell him that in the same phone call?

A. Yes.

Q. And as I remember in your testimony, Mr. Bidwell -- if it’s inaccurate, you tell me -- Mr. Bidwell gets defensive towards you and accuses you of having no sympathy; is that accurate?

A. Yes.

Q. And that would have been the first information you ever received about Kristen being dead?

A. Yes.

Id. at 51-52, quoting N.T. Trial, 2/11/20, 239-41 (passage above reproduced from the notes of testimony whereas Appellant makes multiple slight

34

transcription errors in the version quoted in his brief). Appellant characterized this testimony as harmful to his defense because telephone records reflected that he called his wife at 5:20 p.m. and 8:21 p.m. on June 2, 2011. If the jury found that this particular call was made at 5:20 p.m., the jurors could have inferred that he had knowledge of Wagner’s death before the subsequent 7:30 p.m. discovery of the victim’s body. See Appellant’s Brief, 54-56. Because such timing of this conversation could have suggested to the jury his involvement in, or at least earlier awareness of, Wagner’s death, Appellant asserts that trial counsel was ineffective for not objecting to the testimony on the basis of the spousal communication privilege. See id.

In reviewing this ineffectiveness claim, the PCRA court concluded that the phone conversation between Appellant and Jennifer would have been subject to the section 5914 privilege because it was made in a private phone conversation during which Appellant’s wife went to another room, apart from other persons then present, to maintain privacy for the call. See PCRA Court Opinion, 12/9/24, 14-15. The PCRA court thus found arguable merit for the trial counsel ineffectiveness claim. See id. The court, however, denied relief on the claim under the remaining prongs of the ineffectiveness standard. See id. at 15-17.

While trial counsel admitted at the PCRA hearing that he did not have “any strategic reason for not objecting” to the admission of the testimony about the phone conversation, N.T. PCRA Hearing, 7/11/24, 12, the PCRA court nevertheless gleaned that it would have been reasonable for counsel to

35

not object to the conversation because it reinforced that Wagner died as a result of a hanging. See PCRA Court Opinion, 12/9/24, 16. The court explained its conclusion to that effect, as follows:

Upon review of the entire transcript, we agree that the theory of [Appellant’s] defense was that the [v]ictim committed suicide.

This was supported by both a defense expert, Dr. Cyril Wecht, and the original autopsy performed by Dr. Land. Both doctors were called to testify by the defense. Additionally, trial counsel extensively cross[-]examined the various witnesses against [Appellant] to question their credibility, in particular those who were known to be drug users. [Trial counsel] also questioned Mr.

Gerber about his motives in coming forward with [Appellant’s]

confession, bringing up Mr. Gerber’s own extensive criminal history and ongoing business disputes with [Appellant]. [Trial counsel] also focused extensively on the [v]ictim’s mental state[,]

alleging that she had previously attempted suicide, was facing serious criminal charges, and had been molested by her father.

Considering the theory of [Appellant’s] case, we believe that [trial]

counsel’s failure to object to Jennifer Bidwell’s testimony was reasonable as it did not contradict the holes they hoped to make in the Commonwealth’s evidence. If anything, the testimony may have helped solidify the idea that the [v]ictim died by suicide by hanging as that is what [Appellant] emotionally told his wife shortly after it happened.

Id.

The PCRA court also denied relief for lack of prejudice because the call was not immediately apparent to be inculpatory in light of the apparent “confusion” in the record as to the precise time the phone call was made. PCRA Court Opinion, 12/9/24, 17. The court explained:

It was determined during testimony that [Appellant] and his wife spoke for about ten minutes on the day of the [v]ictim’s death.

This information was also brought forth by other witnesses who had examined [Appellant’s] phone records. There was some confusion as to when the call in which [Appellant] told his wife about the [v]ictim’s death occurred. Jennifer Bidwell’s sworn

36

testimony from prior proceedings was inconsistent about whether the call occurred before the [v]ictim’s body was found or the day after. During his examination of Jennifer Bidwell, [trial counsel]

questioned her about her memory, the stress that she was under at the time, and whether she could easily remember a conversation that had occurred five years prior to her previous sworn testimony. Trial counsel pointed out that [Appellant] had called his wife at 8:21 p.m. after [the v]ictim’s body was found.

This comports with Jennifer Bidwell’s testimony that the conversation in question was very brief because she was upset that he had continued to see the [v]ictim after promising her otherwise. Based upon this, we find that trial counsel was able to mitigate any potential prejudice to [Appellant].

Id. (record citations omitted).

Upon our review of the record, we agree with the PCRA court’s analysis of this claim. Appellant’s claim is predicated upon an incorrect conclusion that the jury only could have interpreted that the phone call occurred prior to the discovery of Wagner’s body. He asserts, “The cross-examination of Jennifer did not foreclose, in any way, the argument that Bidwell told his wife, prior to [Wagner’s] body being discovered, that [Wagner] was dead. This damning fact was not extinguished through cross-examination, and was exploited by the Commonwealth.” Appellant’s Brief, 57. This analysis by Appellant fails to properly review the reasonable basis prong of the ineffectiveness standard.

Trial counsel was not required to foreclose the possibility that the phone call occurred prior the discovery of Wagner’s body to advance a reasonable strategy of permitting the jury to hear the substance of his call with his wife. Counsel could have reasonably permitted the jury to hear about the call’s content if that testimony could have been used to sow doubt and confusion in the jurors’ minds about the timing of the events and the cause of Wagner’s

37

death in a strategy aimed at fostering a reasonable doubt in Appellant’s involvement in the death. After our review, we conclude that trial counsel’s cross-examination of Jennifer appeared to do just that. Trial counsel made Jennifer agree that she had been confused about the timing of the conversation. See N.T. Trial, 2/11/20, 260 (Jennifer: “I was very confused. I thought [9-1-1] made a mistake. It made no sense.”). Moreover, he also elicited from Jennifer that she was unable to recall the time of the phone call. See id. (Jennifer: “I have no idea what time it was.”).

Jennifer’s cross-examination testimony opened the possibility that Appellant’s phone call with her corresponded with phone records for two different calls on June 2, 2011, including a nine-minutes-and-thirty-two- seconds-long call at 5:20 p.m. and an almost-four-minutes-long call at 8:21 p.m., before and after the 9-1-1 call concerning the discovery of Wagner’s body, which occurred at 7:39 p.m. See N.T. Trial, 2/11/20, 246, 248-49, 262. Although the Commonwealth directed Jennifer to prior grand jury testimony to suggest that the call happened at 5:20 p.m., see id. at 247-48, trial counsel, during the cross-examination, cast doubt on the credibility of that earlier testimony by confirming that the prosecutor elicited the grand jury testimony about the timing of the call without referencing the phone records evidencing an 8:21 p.m. call:

Q. He never told you, though, that the phone records reveal that [Appellant] actually called you, or tried to call you, at 8:20 [p.m.]?

Did [the prosecutor] show you that in front of the grand jury?

A. No.

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…

Q. Did he show you the next call where you actually speak at 8:21 [p.m.]? It’s almost 4 minutes. He didn’t show you that, did he?

A. No.

Id. at 262. Trial counsel then posed a question to suggest that the Commonwealth did not try to clear up the exact time of the call once it had elicited the grand jury testimony suggesting the call was made prior to the discovery of the victim’s body:

Q. That’s after the 911 call. When you went back for the second meeting, did [the trial prosecutor] tell you in the second meeting, hey, listen, you seemed a little confused asking whether it was the next day because it was before the 911 call -- did he say, hey, listen, we actually do have some calls here where [Appellant] is trying to call you after the 911 call? Did he do that in that meeting?

A. No.

Id.

While trial counsel could not recall a strategic reason for not objecting on spousal privilege grounds to Jennifer’s testimony about the call from Appellant, see N.T. PCRA Hearing, 7/11/24, 12, the trial transcript reflects that counsel effectively exploited the direct examination about the timing of the call in a way that advanced Appellant’s defense by challenging the motive and tactics of the prosecution’s case-in-chief. Had Jennifer maintained that the phone call corresponded with the phone record for the 5:20 p.m. call, we would agree with Appellant that a lack of an objection would have been prejudicial. With the existing record, however, we conclude that trial counsel

39

made a calculated gamble to exploit Jennifer’s uncertainty as to the exact timing of her call with Appellant, which both raised reasonable doubt regarding part of the Commonwealth’s case-in-chief and suggested inadequate investigation by the Commonwealth. Accordingly, we concur with the PCRA court’s rejection of the instant claim based on the reasonable basis and prejudice prongs of the ineffectiveness standard.

In his fifth issue, Appellant asserts that the PCRA court erred in denying relief on his claim that trial counsel was ineffective for not objecting to Alyssa Benek’s testimony about his drug use with her because that testimony was subject to and precluded by the trial court’s pre-trial partial denial of the Commonwealth’s motion in limine. See Appellant’s Brief, 58-64. He points out that, in the absence of objections from trial counsel, Benek testified that Appellant provided a “line” of methamphetamine for them to consume on the day they met up, within a week of Wagner’s death, which Benek suggested was a regular practice with Appellant. See id. at 58-60. Appellant argues that the admission of this testimony ignored the trial court’s pre-trial motion ruling, trial counsel failed to state a reasonable basis for not objecting, and the testimony prejudiced him because it “underscored his involvement in the drug trade and his propensity to engage in criminal conduct.” Id. at 61-64.

In its evaluation of this claim, the PCRA court acknowledged its pre-trial ruling that evidence of Appellant’s personal drug use was not relevant to proving any of the alleged motives for killing Wagner. See PCRA Court Opinion, 12/9/24, 28, 35. The PCRA court implicitly found arguable merit to

40

the ineffectiveness claim and turned its attention to the remaining two prongs of the ineffectiveness standard. See id. at 35. The court focused its analysis for those prongs on the following testimony from trial counsel at the PCRA hearing, indicating that counsel was open to using the evidence that Benek used drugs with Appellant to undermine the credibility of her account of Appellant confessing to her that he killed Wagner:

[Trial counsel:] Yes. I – I thought that the entire line of cross-

examination where she was concerned was that she was actively under the influence of drugs taking drugs with [Appellant] at the time she said she heard and made these – provided this testimony concerning these admissions and that she was a completely incompetent and unbelievable witness.

Id., quoting N.T. PCRA Hearing, 7/11/24, 19.

The PCRA court explained that, since Appellant’s admission was inevitably admissible, by not objecting to the drug use testimony at issue, trial counsel ensured that the jury would have the necessary context for understanding the circumstances in which Benek alleged that Appellant made the confession to her. See PCRA Court Opinion, 12/9/24, 36. The court thus inferred that trial counsel had a reasonable strategy for permitting the admission of the drug use testimony where it could be used both to challenge Benek’s credibility and sow doubt about the capacity of Benek or Appellant to fully comprehend at the time what was said and heard:

[] Benek’s testimony that [Appellant] confessed to murdering [Wagner] is not itself appropriate for objection. It was highly relevant to the Commonwealth’s case and there was no question of voluntariness under the circumstances. While [Appellant] now argues that the circumstances of that confession, specifically his

41

infidelity and drug use so soon after [Wagner’s] death, are both irrelevant and prejudicial. We cannot agree. [Appellant’s]

statement to [] Benek did not occur in a bubble, it was imperative that the jury had a full understanding of the events leading up to [Appellant] spontaneously stating he had murdered [Wagner].

The events [preceding] the confession were necessary for this context and why [Appellant] may have, in a moment of vulnerability, said what he did.

Since the testimony of [] Benek was admissible, [trial counsel]

instead used the strategy of making [] Benek seem as unreliable as possible to the jury. [Trial counsel] cross-examined [] Benek thoroughly. Although [Appellant] argues the details of her testimony put [Appellant] in a poor light, the testimony was also detrimental to [] Benek’s own credibility. The jury heard that []

Benek was also using drugs that night and had engaged in a sexual relationship with a man she knew to be married. While [Appellant] had previously known about [Wagner’s] death, []

Benek only found out about it on that date and still used drugs and went home with [Appellant]. The jury could have reasonably considered that neither person was acting with good character at that time.

Id.

Appellant argues that trial counsel’s testimony at the PCRA hearing and the PCRA court’s analysis in its opinion did not offer or address a strategic reason for why trial counsel did not object to Benek’s testimony about his drug use. See Appellant’s Brief, 62. Instead, Appellant interprets the PCRA court’s denial of his claim as a reversal of its pre-trial ruling on the admissibility of the testimony about his drug use. See id. He additionally asserts that the drug use in question was unconnected with the testimony about his confession to Benek because the confession allegedly occurred on the morning after the drug use. See id. at 63. Accordingly, he reasons that the PCRA court’s

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analysis was inevitably flawed because the drug use should have been inadmissible for a lack of relevance. See id. at 63-64.

We disagree with Appellant and find that he has not overcome the presumption of effectiveness with respect to this claim. First, the trial court’s pre-trial ruling did not specifically address evidence about drug use elicited from Benek. When the Commonwealth stated its intent to present evidence of drug use in its pre-trial motion, the Commonwealth’s request was focused on evidence that would be elicited from Wagner, Jennifer, and Appellant’s former wife, Denise Bidwell:

6. The needed bad act evidence on the part of the defendant would include evidence of drug trafficking, drug use and its effect on defendant’s tumultuous and violent relationship with females, including, but not limited to the victim, Kristen Wagner, the defendant’s current spouse, Jennifer Bidwell, and the defendant’s former spouse, Denise Bidwell.

***

14. The evidence of the defendant’s drug use and the effects of the drugs and alcohol upon him are necessary to show defendant’s state of mind, intent, lifestyle with the victim, and to reconstruct the murder and its aftermath.

Commonwealth’s Motion in Limine, 7/12/17, ¶¶ 6, 14. The pre-trial court’s ruling was silent as to Appellant’s supposed drug use with Benek. Appellant’s response to the Commonwealth’s pre-trial request to present drug use testimony similarly was silent as to Benek and only addressed the potential that evidence of his drug use would portray him as a “drug fueled sex addict” or suggest that he killed Wagner “because he is a drug addicted sex addict.”

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Appellant’s Memorandum of Law for Answer to Commonwealth’s Motion, 8/15/17, 3, 5 (unpaginated).

The trial court’s ruling on the Commonwealth’s pre-trial motion in limine denied the Commonwealth’s request to present drug use evidence on the basis that the Commonwealth “proffered little to show the relevance of [Appellant’s] use of [methamphetamine] in the alleged murder of [Wagner].” Pre-trial Court Opinion, 12/15/17, 20 (emphasis in original). The ruling therefore only limited the Commonwealth’s ability to present drug use evidence as a means of suggesting how the murder occurred or that the murder was possibly caused by drug use by Appellant. See id. at 21 (“Furthermore, the Commonwealth has not alleged, nor does the evidence before us reflect, that Defendant killed [Wagner] in a rage induced by methamphetamine or lack of sleep.”). The testimony from Benek about her drug use with Appellant, however, had no relation to the Commonwealth’s pre-trial motion in limine and was relevant to the circumstances surrounding Appellant’s confession to Benek.

Importantly, when the trial court denied the portion of the Commonwealth’s motion in limine about drug use evidence, which again did not address any drug use by Appellant with Benek, the trial court added the following caveat: “[A]t this time, we find this evidence to be irrelevant and inadmissible and the Commonwealth’s Motion to admit such evidence is DENIED and we reserve further decision on this issue to the time of trial.” Pre-trial Court Opinion, 12/15/17, 21 (emphasis in original). The ruling

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prohibited the Commonwealth from presenting drug use evidence for the purpose suggested in the motion in limine, which the trial court found to be irrelevant. We interpret the latter clause in the court’s ruling as suggesting that the trial court would reserve judgment on admitting drug use evidence for other purposes at trial.

Here, Appellant’s ineffectiveness claim is premised on the idea that trial counsel should have objected to Benek’s testimony on the basis that the testimony was precluded from admission by the trial court’s ruling on the Commonwealth’s pre-trial motion in limine. Based on our conclusion that the ruling on the pre-trial motion had no relation to any proposed testimony by Benek and Benek’s testimony did not pose any suggestion that involvement of drug use had any relation to the actual events of the murder of Wagner, we are unable to agree with Appellant that trial counsel should have objected to Benek’s testimony because it had been precluded by the pre-trial ruling. As a result, we find that there is no arguable merit to Appellant’s assertion that trial counsel should have objected to Benek’s testimony on that basis. 8

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8 Our present interpretation of the scope of the pre-trial court’s ruling on the

Commonwealth’s motion in limine about evidence of drug use by Appellant is consistent with our earlier interpretation of the same ruling in the Commonwealth’s pre-trial appeal from the partial denial of that motion. There, we found the Commonwealth’s challenge to the denial of the relevant portion of its motion in limine meritless on the basis of the trial court’s indication in his Rule 1925(a) opinion for that appeal that it “simply ha[d] no evidence before [it] that show[ed Appellant] was under the influence of any substance at the time [Wagner] was murdered.” Commonwealth v. Bidwell, 195 A.3d 610, 629 (Pa. Super. 2018).

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Even assuming arguendo that Appellant was alternatively arguing that trial counsel should have raised an objection to Benek’s testimony pursuant to Pennsylvania Rule of Evidence 404(b)’s prohibition on the presentation of prior bad acts evidence, we agree with the PCRA court that trial counsel would have had a reasonable basis for not objecting to that testimony because it admitted evidence that was specifically useful to undermine the credibility of Benek’s testimony about Appellant offering a confession to her.

As a threshold matter, we note that the PCRA court’s opinion directly contradicts Appellant’s present assertion that the PCRA court “did not address whether [t]rial [c]ounsel had a reasonable trial strategy for not objecting to [Benek’s] testimony.” Appellant’s Brief, 62. Before addressing trial counsel’s testimony at the PCRA hearing, the PCRA court began its analysis of the instant ineffectiveness claim by remarking, “We turn to the next prong of the Pierce[9] test to determine if trial counsel had a reasonable basis for not objecting to [] Benek’s testimony about that evening she spent with [Appellant].” PCRA Court Opinion, 12/9/24, 35. Contrary to Appellant’s argument, the following discussion clearly reflected a finding that trial counsel had a reasonable basis for not raising an objection to Benek’s testimony.

Here, the PCRA court found that there was a reasonable basis for not objecting to Benek’s testimony because it was admissible as res gestae for Benek’s account of Appellant confessing to her and because evidence of their

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9 Commonwealth v. Pierce, 645 A.2d 189 (Pa. 1994).

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shared drug use was useful for the defense to “destroy [Benek’s] credibility in front of the jury.” PCRA Court Opinion, 12/9/24, 36. We agree with the PCRA court’s analysis on this point and adopt it as our own. This Court has recognized a res gestae exception to Rule 404(b) to permit the admission of evidence of other crimes or bad acts to tell “the complete story.” Commonwealth v. Hairston, 84 A.3d 657, 665 (Pa. 2014). Whether Benek and Appellant had been using methamphetamines in the hours or day preceding his confession was admissible as res gestae to describe the chain of events leading up to the alleged confession. It was also relevant and probative of both Benek’s capacity to interpret and recall a confession offered by Appellant in addition to being relevant and probative of Appellant’s capacity to offer the alleged confession to Benek. In these circumstances, the PCRA court was correct to conclude that Benek’s testimony was admissible. See Commonwealth v. Robinson, 864 A.2d 460, 496-97 (Pa. 2004) (holding that evidence of prior bad acts is admissible where the particular crime or act was part of a chain, sequence, or natural development of events forming the history of a case). In any event, the potential benefit from Benek’s testimony about her shared drug use with Appellant to undermine the credibility of Benek’s account and of Appellant’s ability to allegedly confess that he killed Wagner far outweighed any incidental prejudice from the evidence and clearly provided a reasonable basis for trial counsel to decline to object to the testimony.

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In his sixth issue, Appellant asserts the PCRA court erred by concluding that he was not entitled to a new trial based on cumulative errors associated with the acts or omissions by trial counsel addressed in his first five claims. See Appellant’s Brief, 65-67. He notes that, if not for these actions or omissions of trial counsel, the jury would have:

 heard no allegations admitted for their truth that [he] was a drug dealer, as the limiting instruction would have instructed the jury accordingly;

 heard no evidence that [he consumed] drugs with others;

 heard no hearsay evidence regarding research articles that supported the prosecution’s theory and may have undercut the analysis of the defense expert;

 heard no testimony that [he] believed that [Wagner] was an informant; and

 heard no testimony that [he] told his wife, prior to [Wagner’s] body being discovered, that [Wagner] hung herself, which privileged conversation placed him at the scene at or near the time of [Wagner’s] death.

Appellant’s Brief, 66-67. He alleges that that the errors of trial counsel were “profound” and, “even if this Court were to conclude that, individually, a specific error [by trial counsel] does not warrant a new trial, cumulatively they do.” Id. at 65-66. He argues that entitlement to relief based on cumulative errors also was supported by the fact that the Commonwealth’s case “was based upon circumstantial evidence, and the expert testimony was contested.” Id.

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Our Supreme Court has held that, “[w]here a claimant has failed to prove prejudice as the result of any individual errors, he cannot prevail on a cumulative effect claim unless he demonstrates how the particular cumulation requires a different analysis.” Commonwealth v. Hutchinson, 25 A.3d 277, 318-19 (Pa. 2011) (citations omitted). Our Supreme Court has also recognized that, “if multiple instances of deficient performance are found, the assessment of prejudice properly may be premised upon cumulation.” Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “[T]o the extent claims are rejected for lack of arguable merit, there is no basis for an accumulation.” Commonwealth v. Koehler, 36 A.3d 121, 161 (Pa. 2012).

Upon concluding our review of the above ineffective assistance of counsel claims, we note that we have only rejected relief on Appellant’s second issue based solely on a lack of prejudice. For the other claims, we found a lack of arguable merit for the first, third, and fifth claims, and based the denial of the fourth claim on a finding that trial counsel had a reasonable basis for his inaction. With this precise resolution of the above claims, there is no basis for a consideration of an accumulation claim. Appellant is thus not entitled to relief on this cumulative errors claim. See Commonwealth v. Hanible, 30 A.3d 426, 483 (Pa. 2011) (noting Hanible was not entitled to relief on a cumulative error claim where none of his ineffective assistance of counsel claims were disposed of “solely on the grounds of lack of prejudice”); see, e.g., Commonwealth v. McGriff, 2021 WL 3579392, *14 (Pa. Super., filed Aug. 13, 2021) (noting that McGriff’s accumulation claim failed where only a

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portion of one of McGriff’s claims failed under the prejudice prong, the remainder of that claim failed under the arguable merit prong, another claim failed under the reasonable basis prong, and the remaining claims failed under the arguable merit prong) (unpublished memorandum cited for persuasive value pursuant to Pa.R.A.P. 126(b)(2)).

In his seventh issue, Appellant raises the first of his three challenges to PCRA counsel’s effectiveness that are raised for the first time on appeal pursuant to Bradley. He alleges that PCRA counsel was ineffective for failing to assert that trial counsel was ineffective for not objecting to evidence about Appellant supplying drugs to Benek and others on the basis that such evidence exceeded the scope of the pre-trial court’s ruling on the Commonwealth’s motion in limine concerning drug trafficking evidence. See Appellant’s Brief, 68-73. The evidence he refers to is the section of testimony from Benek that he cited as the focus of his fifth issue, involving the joint use of methamphetamines at his home on the night before he confessed to her that he killed Wagner. See Appellant’s Brief, 68-70, citing R.R. 495a-499a (N.T. Trial, 2/11/20, 145-49). Benek also testified that she had previously been to Appellant’s house along with an associate named Chase Argot to pick up drugs. See N.T. Trial, 2/11/20, 146.

Appellant argues that the scope of the pre-trial ruling was limited to the investigation into his alleged drug trafficking and Wagner’s involvement in that trafficking operation and thus Benek’s testimony about him supplying her methamphetamines after Wagner’s death was not permitted by that ruling.

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See Appellant’s Brief 69-70. He also argues that the cited portion of Benek’s testimony was inadmissible as it was “not relevant, in any way, to either the prosecution’s motive theory or the ‘res gestae’ surrounding [Wagner’s] death.” Id. at 70. He concludes that the testimony about his supply of drugs to Benek, incident to their combined use of the drugs, was prejudicial and that trial counsel was ineffective for not objecting to the admission of Benek’s testimony about him supplying the drugs to her. See id. Appellant asserts that we can resolve this claim in his favor because we can observe the scope of the pre-trial court’s order permitting drug trafficking evidence which he describes as being “narrowly tailored.” Id. at 72.

For the arguable merit prong of the ineffectiveness standard, we must determine whether there was a basis for trial counsel to object to evidence of Appellant supplying drugs to Benek on the night before his confession to her because it exceeded the pre-trial court’s ruling on the Commonwealth’s motion in limine. When the Commonwealth proposed its presentation of drug trafficking evidence in its motion in limine, it did not specifically address Benek as a witness but provided that the drug trafficking evidence would be relevant for, inter alia, proving “a res gestae or chain of events surrounding the murder and its sequent investigation”:

15. The Commonwealth will introduce at trial evidence of the defendant’s activities with respect to the distribution, on his part[,] of illegal substances such as pain killers like Percocet and also methamphetamine. This evidence will come from a variety of sources[,] both witnesses and documentary

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evidence as well as cellular telephone and social media analysis.

16. The evidence of defendant’s distribution of narcotics will also take the form of police reports and police witnesses who were conducting an investigation into the defendant’s drug trafficking following a motor vehicle stop in November of 2010 wherein the defendant was found with a quantity of methamphetamine.

17. During that investigation, the victim herself was interviewed and provided evidence against the defendant and also expressed a fear for her safety should defendant become aware of her cooperation with the authorities.

18. This evidence is relevant to show a motive for the murder, the defendant’s state of mind, the dependent relationship of the victim upon the defendant, and to provide a res gestae or chain of events surrounding the murder and its subsequent investigation.

Commonwealth’s Motion in Limine, 7/12/17, ¶¶ 15-18.

The Commonwealth’s use of “will also take the form of” in paragraph 16 of its motion reflected that the drug trafficking evidence it intended to present would include evidence of the investigation in which Wagner was supposedly an informant against Appellant but did not limit its request to only that evidence of drug trafficking by Appellant. Id. at ¶ 16. Its use of the phrase “surrounding the murder” also identified that it would be seeking to present drug trafficking evidence that occurred after Wagner’s death. Id. at ¶ 18. At the hearing on the Commonwealth’s motion in limine, the prosecutor stated that the evidence addressed by its motion included, inter alia, an audio interview with Benek and that Appellant and Benek “engaged in intimate relations centered around drugs.” N.T. Pre-trial Hearing, 9/15/17, 3.

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When the pre-trial court ruled on the motion in limine, it specifically identified “portions of [] Benek’s interview with police” among the evidence of drug trafficking that the Commonwealth sought to present under the res gestae exception to Rule 404(b). See Trial Court Opinion, 12/15/17, 15. In granting the Commonwealth’s request to admit the evidence of drug trafficking under the res gestae exception, the pre-trial court did not exclude evidence from Benek. Instead, the only exception it made was to preclude evidence of criminal charges and a conviction for possession of drugs by Appellant in 2011. See id. at 19.

We do not agree with Appellant, therefore, that the evidence addressed in the present claim was outside the scope of the pre-trial court’s ruling permitting such evidence. The drug trafficking evidence admitted in the ruling primarily focused on the combined drug trafficking by Appellant and Argot and Benek’s testimony pointed to her own involvement in the same drug trafficking enterprise by noting that she had previously been to Appellant’s home with Argot to pick up drugs. The court’s caveat that drug charges or convictions arising from the drug trafficking operation in 2011 should not be admitted did not create a ubiquitous bar on the admission of drug trafficking evidence that corresponded with events occurring after the time of Wagner’s death as Appellant now suggests.10 This is especially obvious where Benek’s

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10 This conclusion is consistent with the trial court’s limiting instruction on the

admission of the drug trafficking evidence which noted that the evidence was (Footnote Continued Next Page)

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involvement in the drug trafficking operation naturally led to the interaction which resulted in his confession to her which was necessary for understanding the complete history and natural factual development of this case.

Because we interpret the scope of the pre-trial ruling to encompass this position of Benek’s testimony and determining it admissible under the res gestae exception to Rule 404(b), we conclude that there is no arguable merit to the instant claim.

In his eighth issue, Appellant alleges that PCRA counsel was ineffective for failing to assert that pre-trial counsel was ineffective for failing to object, based on the application of spousal privilege, to the admission of statements during pre-trial proceedings from Jennifer conveying that Appellant had expressed his suspicion to her that Wagner was an informant against him. See Appellant’s Brief, 73-78. He argues that, “[w]ithout Jennifer Bidwell’s statement concerning her conversation with [him] that he was suspicious that [Wagner] was an informant and [he] was upset about it, no evidence existed directly linking [him] to believing that [Wagner] cooperated with the police against him.” Id. at 75. He concludes that had Jennifer’s statement been excluded at the pre-trial hearing, the pre-trial court would not have admitted

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necessary to “give a context and history to the circumstances surrounding the death of Kristen Wagner.” N.T. Trial 2/18/20, 191 (emphasis added). The trial court’s use of “surrounding the death of Kristen Wagner,” rather than “up to the death of Kristen Wagner,” makes clear that the trial court’s pre-trial ruling did not bar drug trafficking evidence dealing with matters from after the time of Wagner’s death.

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any “evidence of [his] alleged drug trafficking” to support a non-existent motive. Id. at 77.

The PCRA court, in its Rule 1925(a) opinion, concludes that this claim is coterminous of the trial counsel ineffective assistance of counsel claim addressed above in issue three and should be rejected on the same grounds as that claim:

[T]his issue was raised by PCRA counsel and was directly addressed by the PCRA court. Jennifer Bidwell testified that her husband suspected that the decedent, Kristin Wagner, was one of several unknown confidential informants who provided police with probable cause to obtain a search warrant. She testified that her husband brought this up, and “(I)t was talked about with groups of people, like[, ‘W]ho would that be[?’]” The PCRA court found that these were not conversations between husband and wife that were intended to be confidential; they were frequent conversations among [Appellant] and his associates in an attempt to determine who had spoken to the police.

PCRA Court Opinion, 2/10/25, 3-4 (record citation omitted).

Appellant asserts that the PCRA court’s analysis is flawed because, unlike the claim addressed in issue three, the focus of the instant claim is the failure to object by pre-trial counsel during the pre-trial motion in limine proceeding, rather than a focus on the inaction of counsel at the time of trial. See Appellant’s Brief, 76-77. He reasons that, if counsel had raised a spousal privilege-based objection in the pre-trial proceedings, then the portion of the pre-trial court’s ruling on the Commonwealth’s motion in limine concerning evidence of his drug trafficking would have been decided differently:

The prejudice associated with this evidence is obvious – without it, the prosecution would not have been able to establish

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[Appellant’s] purported belief that [Wagner] was an informant and, hence, there would be no nexus between [Wagner’s] death and any alleged motive by [Appellant]. Without the same, the evidence of [Appellant’s] alleged drug trafficking had no relevance whatsoever to any issue in the case. Based in large part on Jennifer Bidwell’s conversation with [Appellant], however, the trial court found the prosecution’s theory of motive to be plausible and, hence, concluded that the evidence of drug trafficking was admissible.

Id. at 77. Appellant asserts that the record “is not sufficient” for this Court’s consideration of this claim and that a remand for development of the record is “warranted.” Id. at 78.

Appellant’s claim fails as a matter of law, without the need for additional remand, because he fails to distinguish how the evidence including Jennifer’s statements that the pre-trial court cited as support for the partial grant of the Commonwealth’s pre-trial motion concerning drug trafficking evidence were different, in any way, from the evidence we concluded to be admissible in issue three. From his argument, we can glean that any hypothetical evidence addressed by the instant claim was merely cumulative of the evidence that we already determined was admissible in issue three because it conveyed that Appellant believed that Wagner was an informant against him prior to Wagner’s death and his statement about that belief was made in the presence of other persons in addition to his wife. If pre-trial counsel had raised the objection that Appellant suggests in the instant claim, the cumulative evidence addressed in issue three would have supported the partial grant of the Commonwealth’s motion in limine. See Commonwealth v. Showers, 782 A.2d 1010, 1022 (Pa. Super. 2001) (“failure to object to cumulative evidence

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is not ineffective where there is sufficient evidence in the record for conviction and there is no basis upon which to conclude that the outcome of the trial would have been different had counsel objected to the testimony”).

In issue nine, Appellant asserts that, to the extent we conclude that the communication between him and his wife that was the focus of issue three (and issue eight) was not confidential and thus subject to the spousal communication privilege, PCRA counsel was ineffective for failing to establish that “this communication only occurred between Jennifer Bidwell and [Appellant] and was [thus] a privileged marital communication.” Appellant’s Brief, 78-80. The PCRA court responds to this claim with the following:

In order for [Appellant] to obtain the spousal privilege to object to his wife’s testimony, the communication had to be a confidential one between husband and wife. [See Commonwealth] v. May, 656 A.2d 1335, 1342 (Pa. 1995). Here, the Commonwealth did not offer any communications between husband and wife alone;

the only communications Jennifer Bidwell discussed at trial were conversations [Appellant] was having with “groups of people.”

There may have been confidential discussions between husband and wife on the same subject, but the Commonwealth made no attempt to offer them. Trial counsel could not be faulted for not objecting to matters discussed between [Appellant] and his associates while his wife was present.

PCRA Court Opinion, 2/10/25, 4-5.

Consistent with our review of Appellant’s third and eighth issues, a remand for further proceedings is not necessary because Jennifer’s testimony, while leaving open the possibility that she and Appellant had some communications about Wagner’s informant status that were covered by the spousal communication privilege, established that she and Appellant had

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communications about Wagner’s informant status that were not privileged because they were expressed in the presence of third parties, thereby waiving the privilege. It is incumbent on Appellant to proffer evidence supporting a claim of ineffective assistance. See Commonwealth v. Spotz, 896 A.2d 1191, 1250 (Pa. 2006) (“Claims of ineffective assistance of counsel are not self-proving[.]”) (citation omitted); Commonwealth v. Pierce, 786 A.2d 203, 221 (Pa. 2001) (noting that an appellant cannot prevail on claim of ineffective assistance of counsel when claim is not developed).

Here, Appellant merely posits the existence of some additional communications on the same subject that might have been privileged, without delineating which conversations were protected and which were not. To the extent that Jennifer’s testimony also alluded to privileged communications, we conclude those communications were merely cumulative of the evidence of the communications that were properly determined to be admissible as outside the scope of the spousal communication privilege. Accordingly, to the extent there is any arguable merit to this claim that PCRA counsel did not properly raise an additional claim concerning the spousal communication privilege, Appellant could not demonstrate that PCRA counsel’s inaction caused him any prejudice.

Order affirmed.

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Date: 8/27/2026