Com. v. Dennerlein, B.

• Court: Superior Court of Pennsylvania
• Decided: November 16, 2015
• Docket: 2065 WDA 2014
• Status: Unpublished

Opinion

J-S52021-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

BENJAMIN J. DENNERLEIN,

Appellant No. 2065 WDA 2014

Appeal from the PCRA Order of November 19, 2014 In the Court of Common Pleas of Beaver County Criminal Division at No(s): CP-04-CR-0001592-2009

BEFORE: SHOGAN, OLSON and WECHT, JJ.

MEMORANDUM BY OLSON, J.: FILED NOVEMBER 16, 2015

Appellant, Benjamin J. Dennerlein, appeals from the order entered on

November 18, 2014, denying him relief under the Post-Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

The PCRA court provided us with a thorough and well-written summary

of the underlying facts and procedural posture of this case. As the PCRA

court explained:

On July 17, 2009, [Appellant] was charged with [murder]. . . . The charge[] stem[med] from an incident that occurred in Freedom Borough, Beaver County, Pennsylvania, in either the late evening hours of May 12 or early morning hours of May 13, 2009. The victim, Elizabeth Grosskopf [(hereinafter “the Victim”)], was found dead in her residence at 1475 Fifth Avenue, Freedom Borough, Beaver County, Pennsylvania. An autopsy determined that [the Victim] died due to multiple stab wounds to the head and neck areas. After an investigation by the Freedom Borough Police and the Beaver County Detectives’ Bureau, [Appellant] was charged with homicide. J-S52021-15

The case was scheduled for a jury trial before the Honorable John Dohanich. . . . [T]he jury convicted [Appellant] of [first-degree] murder on August 3, 2010. On September 29, 2010, Judge Dohanich sentenced [Appellant] to life imprisonment without [the possibility] of parole.

No post-sentence motions were filed, but a timely notice of appeal was filed with the Superior Court [] on October 27, 2010. [The Superior Court affirmed Appellant’s judgment of sentence on April 2, 2012 and the Pennsylvania Supreme Court denied Appellant’s petition for allowance of appeal on October 22, 2012].

[Appellant] filed a timely pro se [PCRA] petition[] and [the PCRA court appointed counsel] to represent [Appellant] in the post-conviction proceeding[s]. [Appointed counsel] filed an amended [PCRA petition on Appellant’s behalf and the PCRA] court conducted a hearing on the petition on August 4, 6[,] and 8[,] 2014. . . .

FACTS

A. Facts and Evidence Adduced and Presented at Trial in July and August[] 2010

...

[The following evidence was presented during Appellant’s trial].

[The Victim], age 54, resided at 1475 Fifth Avenue, Freedom, Beaver County, in a residence owned by her and Robert Campbell, a former paramour, with whom she maintained a friendly relationship. [The Victim] was a frail woman in poor health, suffering from various medical conditions[,] which caused her to be unsteady and prone to falling on occasion. [The Victim] and Mr. Campbell purchased the residence in 2003, subject to a mortgage; however, the property was titled solely in [the Victim’s] name because of Mr. Campbell’s unstable financial condition. Subsequently, [the Victim] transferred the title by deed dated February 28, 2008, to herself and Mr.

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Campbell, as joint tenants with the right of survivorship. . . .

[The Victim] and Mr. Campbell [] lived together for approximately ten years until May[] 2008, when Mr. Campbell left the residence to commence a live-in relationship with his current wife, Karen Otrhalik Babich. Mr. Campbell and Ms. Babich commenced their relationship in December[] 2007, which culminated in their marriage in October[] 2008.

Mr. Campbell’s last contact with the [V]ictim occurred on May 8, 2009, when she telephoned to inform him that on May 7, 2009, she had received and deposited the sum of $31,128.14, representing her share of the proceeds from the sale of her parents’ cottage in Erie. They discussed the uses to which she could put the funds. [The Victim] maintained a personal checking/credit/debit account with the Northern Lights branch of ESB Bank[,] which she opened [on] May 19, 1997. The account was limited to withdrawals of $510.00 per 24-hour period.

Mr. Campbell was introduced to [Appellant] approximately four years prior to the [V]ictim’s death while both were inmates in the Beaver County [Jail] for reasons unrelated to the instant case. Upon release from incarceration, Mr. Campbell and [Appellant] maintained a friendly relationship, and [Appellant] resided with Mr. Campbell [and the Victim] from time to time when he was in need of a temporary residence. All three individuals were users of and smoked cocaine together on occasion. In December[] 2008, and continuing until the time of [the Victim’s] death, [Appellant] resided at the [V]ictim’s home, paying rent in the amount of $50.00 per week. [Appellant] was employed at Crow’s Run Recycling as a salesperson from 2008 through May 13, 2009.

Prior to her death, [the Victim] was employed as a cashier at the Center Township Wal-Mart. [The Victim] last worked on May 11, 2009, from 11:00 [a.m.] until 8:00 [p.m.] and was observed at work by her neighbor, Dwight McMorris, while he was shopping at [the] Wal-Mart. Mr. McMorris subsequently observed the [V]ictim between 8:40 [p.m.] and 8:50 [p.m.] on the same day as she drove by his home

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on the way to her residence after completing her work day. Mr. McMorris was the last person other than the perpetrator to see [the Victim] alive.

[The Victim] was scheduled to work on May 12, 2009, from 11:00 [a.m.] to 8:00 [p.m.]; however, she did not appear for work [or] call to indicate that she would not be present for work that day, which was unlike her because she was a reliable employee. Shortly before her death, [the Victim] reported to one of her co-workers, Nancy Pranskey, that [Appellant] had been stealing from her and using her credit/debit card to purchase items. Bank records disclosed that on May 5, 2009, [the Victim’s] bank account had been overdrawn by $741.11 as a result of eight transactions.

[Appellant] also did not appear at his place of employment on May 12, 2009, and terminated his employment due to a disagreement with his employer, Nick D’Itri, by way of a text message on May 13, 2009, at 12:52 [p.m.] [Appellant] had been a good employee until approximately one month prior to terminating his employment when he began not reporting for work. The prior week he failed to appear for work on four consecutive days. His employer suspected that drug use was responsible for [Appellant’s] decline in performance. [Appellant’s] last working day was May 11, 2009.

Between 10:00 [a.m.] and 10:30 [a.m.] on May 12, 2009, Mr. Campbell sought [Appellant] at his place of employment. Not locating him at work, Mr. Campbell proceeded to the [V]ictim’s residence and found [Appellant] present. Mr. Campbell noted that [Appellant] appeared to be under the influence of drugs. When Mr. Campbell inquired of [Appellant] as to the whereabouts of the [V]ictim, [Appellant] replied that he had taken her to work earlier that morning, because he was in need of her vehicle to run errands. Mr. Campbell, who maintained various items of personal property at the residence, searched the home to assure that his belongings were present and was followed through the house by [Appellant]. When looking into the [V]ictim’s bedroom, Mr. Campbell observed that the bed had been made, which was unusual because the [V]ictim was a poor housekeeper and never made the bed. [Appellant] was directly behind Mr. Campbell as he was in

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the doorway to the [V]ictim’s bedroom. [Appellant] and Mr. Campbell became involved in a heated argument over [Appellant] not working to pay rent to the [V]ictim and his drug use. Mr. Campbell informed [Appellant] that he would return to the residence between 8:30 [p.m.] and 9:00 [p.m.], when the [V]ictim returned from work, to speak with [Appellant] and the [V]ictim.

Later in the same day at 3:25 [p.m.] [Appellant], using the [V]ictim’s credit/debit card, made a balance inquiry at ESB Bank located at 921 Third Avenue in New Brighton. [Appellant], utilizing the [V]ictim’s credit/debit card, purchased various items at the Chippewa Township K-Mart between 6:51 [p.m.] and 7:09 [p.m.] and proceeded to the home of Gregory “Wimpy” Price and Wendy McCoy to deliver items to Mr. Price, including video games, movies[,] and an electric can opener, to reimburse Mr. Price for tires that he purchased. . . .

[B]etween 8:30 [p.m.] and 9:00 [p.m.] on May 12, 2009, Mr. Campbell and his wife returned to the [V]ictim’s residence and found no one present. The [V]ictim’s vehicle was not in the area. Throughout the evening and into the early morning hours of May 13, 2009, Mr. Campbell attempted on 30 occasions to reach [Appellant] and on 17 occasions to contact the [V]ictim by telephone and through text messages[,] indicating his desire to speak to them. He received no responses, except that [Appellant] sent a text message advising that the Baden police would be interested in Mr. Campbell’s use of marijuana. During the evening, Mr. Campbell and his wife left and returned to the [V]ictim’s residence on two additional occasions and did not find anyone or the [V]ictim’s automobile at the home. They left for the final time at approximately 12:00 [a.m.], returned to their residence[,] and retired for the night.

On May 13, 2009, at approximately 12:26 [a.m.], [Appellant] checked into Room 12 of the Beaver Falls Motel in Beaver Falls, following which he contacted Laura Rankin[ and] ask[ed] her to join him in smoking crack cocaine. Ms. Rankin telephoned Jennifer Burns, requesting that she provide transportation to the motel. Jennifer Burns and Bryan Silberger retrieved Ms. Rankin and her infant child and drove to the motel to meet [Appellant]. Ronald “Toot”

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Goodman, the father of a child with Ms. Burns, and Patrick Brown, a supplier of crack cocaine for [Appellant], also appeared at the motel. Mr. Brown provided the cocaine to [Appellant]. [Appellant], when asked the reason for being in possessing of the [V]ictim’s vehicle, informed Ms. Rankin that the [V]ictim was away on vacation visiting her niece in Maryland or Virginia. [Appellant] told Mr. Silberger that the [V]ictim was away in Maryland to visit her brother for a week. [Appellant], in an effort to assure Mr. Brown, his cocaine supplier, that he had sufficient funds when requesting Mr. Brown to provide an advance of drugs, had previously forwarded a text message to him on May 9, 2009, showing a balance in the [V]ictim’s bank account of $29,712.14. [Appellant] and the other individuals smoked crack cocaine throughout the early morning hours of May 13, 20[09], until approximately 5:00 [a.m.] During that time, [Appellant] and Ms. Rankin left the motel and proceeded to two convenience stores to purchase items and attempted to obtain funds using the [V]ictim’s credit/debit card. At one point in time, [Appellant] advised Ms. Rankin that he was using the [V]ictim’s credit/debit card, showed her the balance in the account and stated to her, “stick with me and good things will happen[.”]

Mr. Campbell, accompanied by two friends, Martin Costanza and Justin Hertnecky, proceeded to the [V]ictim’s residence on May 13, 2009, between 8:30 [a.m.] and 9:00 [a.m.] No one was present and the [V]ictim’s car was not at the residence. The three of them gathered [Appellant’s] belongings, placed them in garbage bags[,] and stored the bags in the garage of the residence. Mr. Campbell opened the [V]ictim’s bedroom door and found the bed in the same condition as the day before, as if it had not been disturbed. They then left the residence and returned to Mr. Campbell’s house for the balance of the morning. Mr. Campbell’s intention was to evict [Appellant].

After leaving the motel and driving his friends home, [Appellant] claimed to have returned to the [V]ictim’s residence to locate her, found that she was not present, that her bed did not appear to have been slept in, and then proceeded to the Beaver Valley Mall. At 1:15 [p.m.] on May 13, 2009, [Appellant] presented a check made payable on the [V]ictim’s account to himself in the amount of

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$1,000.00 at the ESB Bank in Beaver Falls. The memo portion of the check indicated the words, “roof/porch[.”] [Appellant] explained that he had performed work for the [V]ictim and the check represented payment. Ms. Celeste, the [V]ictim’s [next-door] neighbor, indicated that no recent work had been done on the house. The bank representative requested identification from [Appellant], since he did not have an account with the bank, and he provided his driver’s license. The check was drawn on the Northern Lights ESB Bank located in Baden. The Beaver Falls ESB Bank manager telephoned the Northern Lights branch and obtained a facsimile of the signature card of the [V]ictim. The Beaver Falls branch manager also placed two telephone calls to the [V]ictim’s residence and the telephone was not answered on either occasion. After being unable to verify [Appellant’s] correct address and telephone number or the [V]ictim’s signature, the bank refused to cash the check and returned the check to [Appellant].

Trooper Robert Negherborn, a forensic document examiner with the Pennsylvania State Police Crime Laboratory, recovered from the face of the subsequent check in the [V]ictim’s checkbook the impression of the writing depicting the text of the previous check payable to [Appellant], including the authorizing signature. [Trooper Negherborn] was further provided with handwriting samples of the [V]ictim and [Appellant]. Although not issuing a conclusive opinion, Trooper Negherborn testified that in comparing the writing on the check with the samples of the handwriting of the [V]ictim and [Appellant], there was a strong probability that the signature on the check was not that of the [V]ictim. He further opined that there were no significant similarities to indicate that the [V]ictim or [Appellant] wrote the entries on the check, or that [Appellant] wrote the signature on the check.

At approximately 2:00 [p.m.] on May 13, 2009, [Appellant] purchased tennis shoes at the Shoe Department Store at the Beaver Valley Mall using the [V]ictim’s credit/debit card. A short time later[,] he attempted to return the tennis shoes for a cash refund without the credit/debit card and was refused. [Appellant] was accompanied by Ms. Rankin and met Mr. Price while at the Beaver Valley Mall and purchased other items with the [V]ictim’s credit/debit card.

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He also attempted to buy tennis shoes for Mr. Price using the [V]ictim’s credit/debit card and was refused.

At approximately 1:00 [p.m.], Kelly Carter, who had previously made payment of $500.00 for the purchase of an automobile from [Appellant], telephoned [Appellant] informing him that he was at the residence desiring to retrieve the vehicle from the garage. [Appellant] advised Mr. Carter that he would not arrive for a period of time, and Mr. Carter waited. When [Appellant] failed to appear, Mr. Carter made a second telephone call, at which time [Appellant] instructed Mr. Carter to enter the home to obtain the remote control for the garage door. At the direction of [Appellant], Mr. Carter entered the house by way of a window and was unable to locate the remote control while continuing to speak to [Appellant] on the telephone. Mr. Carter then telephoned Mr. Campbell, who subsequently arrived and informed Mr. Carter that he was in possession of the remote control and would not permit the removal of the vehicle until [Appellant] appeared. Mr. Carter placed a third call to [Appellant], who indicated he would return later. Both Mr. Campbell and Mr. Carter observed what appeared to be blood on the [V]ictim’s dog and entered the house to investigate. Mr. Campbell entered the [V]ictim’s bedroom and discovered a pool of blood on the bed where the blanket had been pulled away. He called Mr. Carter into the bedroom to observe the blood. Mr. Carter then telephoned [Appellant], informed him of their findings[,] and inquired whether he knew the whereabouts of the [V]ictim, to which [Appellant] replied that he thought she was at work. Mr. Carter told [Appellant] he should return to the residence immediately. [Appellant] indicated that he was at the Beaver Valley Mall and would return home at a later time. He also stated that he had not been at the residence for several days. Mr. Campbell, after contacting the [V]ictim’s employer and the hospital in an unsuccessful attempt to locate her, placed a call to [911] at 2:54 [p.m.] Freedom Borough Chief of Police John Hill and Officer William Dreyer of the Freedom Borough Police Department responded to the call at approximately 3:00 [p.m.] Andrew Gall of the Beaver County Detective Bureau received a call for assistance from the Freedom police officers at 3:10 [p.m.] and responded to the residence with

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County Detectives Timothy Staub, Kim Clements, Timmie Patrick[,] and Robert Chamberlain.

A search of the residence disclosed the [V]ictim’s body wrapped in blankets in a stairwell on the second floor leading to the attic, which was located between the bedrooms of the [V]ictim and [Appellant] and could be accessed from both bedrooms. The police found no evidence of forced entry into the home. When informed of [the Victim’s] death, Mr. Campbell became extremely distraught. As a result of receiving information from Ms. Rankin’s mother that Ms. Rankin was with [Appellant] in her vehicle at the Beaver Valley Mall, a BOLO (be on look out) alert was broadcast for [Appellant], the [V]ictim’s vehicle[,] and the vehicle being operated by Ms. Rankin and owned by [Ms. Rankin’s] mother. Ms. Rankin received telephone calls from a friend and her mother advising that the names of [Appellant] and Ms. Rankin were heard on the [police] scanner indicating that the police were attempting to locate [Appellant].

Detective Patrick proceeded to [Appellant’s] place of employment and in speaking to Mr. D’Itri[,] found that [Appellant] last worked on May 12, 2009, and terminated his employment on May 13, 2009. Mr. D’Itri provided [Appellant’s] cellular telephone number to Detective Patrick, who attempted several calls and text messages to [Appellant] with no response.

At 6:07 [p.m.], Officer Maxim Strano of the Center Township Police Department, in response to the alert, located [Appellant] and Ms. Rankin in the automobile being operated by Ms. Rankin as it was backing out of a parking space at the Beaver Valley Mall. [Appellant] stated to Ms. Rankin “to go or he was going to run[.”] Officer Strano drew his weapon, ordered both individuals to the ground, approached [Appellant,] and placed [Appellant] in handcuffs. [Appellant] stated that he thought about running and should have run when he saw the officer. [Appellant] also indicated that Officer Strano had the wrong man. The [V]ictim’s credit/debit card was found in [Appellant’s] wallet. The [V]ictim’s vehicle was also located a short distance away.

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[Appellant] and Ms. Rankin were transported to the Center Township Police Department. At 6:39 [p.m.], [Appellant] waived his [Miranda] rights and agreed to speak with Detectives Patrick and Clements. [Appellant] was informed of [the Victim’s] death and showed no emotion. He indicated that in the evening hours of May 11, 2009, he and his girlfriend, Colleen Cantella, were at the [V]ictim’s residence viewing the Pittsburgh Penguins/Washington Capitals hockey game. [Appellant] further advised that the [V]ictim came home from work during the hockey game. According to [Appellant], Ms. Cantella departed after the hockey game to return to her residence. This information was contrary to the statement made by Ms. Cantella that she was not at the [V]ictim’s residence on May 11th and that [she and Appellant] had exchanged text messages between 9:23 [p.m.] and 10:07 [p.m.] near the end of the hockey game, when she was at her own residence. . . .

[Appellant] stated that on May 12, 2009, he drove the [V]ictim to work at Wal-Mart at approximately 10:00 [a.m.], attended to several errands[,] and returned to the residence, when he made contact with Mr. Campbell and a verbal argument ensued. After the disagreement with Mr. Campbell, he advised that he left the residence, ran a few more errands[,] and went on a crack cocaine binge. He stated that he returned to Wal-Mart between 8:00 [p.m.] and 8:30 [p.m.] to pick up [the Victim], and when she did not come out to the vehicle, he went into the store and was told that she was not at work all day. He also advised the detectives that he tried to call [the Victim] and received no reply. The [V]ictim did not report to work on May 12, 2009, and video footage of the entrance and the customer service area of Wal-Mart disclosed that [Appellant] did not appear at the relevant time. . . .

[Appellant] obtained crack cocaine from Mr. Price and checked into the Beaver Falls Motel to smoke crack cocaine with Ms. Rankin and her friends. They all remained at the motel into the early morning hours of May 13, 2009. [Appellant] advised that he checked out of the Beaver Falls Motel at approximately 11:00 [a.m.] and returned to the residence to look for the [V]ictim. He found that her bed was made and did not appear to have been slept in. [Appellant] then proceeded to the Beaver Valley Mall where

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he met Mr. Price and offered to purchase tennis shoes for him as payment for cocaine previously supplied by Mr. Price. [Appellant] attempted purchases at two separate retail locations using the [V]ictim’s credit/debit card and was rejected. [Appellant] advised that he had the information regarding the [V]ictim’s credit/debit card, including the [V]ictim’s personal identification number (PIN) to access the account. [Appellant] related that he obtained the credit/debit card from the [V]ictim’s purse located in the kitchen of the residence. The detectives were unable to locate the [V]ictim’s purse in the kitchen of the home and subsequently found it in the [V]ictim’s vehicle. Upon receiving this information, [Appellant] informed the detectives that he had taken the credit/debit card out of the [V]ictim’s purse and placed the purse in the automobile. [Appellant] claimed to have permission from the [V]ictim to use the credit/debit card. . . .

Near the conclusion of the interview, which lasted approximately one hour, [Appellant] stated to the detectives that if they were going to arrest him for murder to do so. He further stated that “all I have to do is convince one person” that he did not commit the offense. The [V]ictim’s purse, Wal-Mart identification card, driver’s license, checkbook[,] and cellular telephones were all located in the [V]ictim’s vehicle, which was in the possession of [Appellant].

Prosecutors acquired the [V]ictim’s bank records for the period from May 1, 2009, through May 31, 2009, the telephone records of [Appellant] from May 8, 2009, through May 14, 2009, and located various receipts for purchases and automatic teller machine (ATM) withdrawals from the [V]ictim’s account in the vehicles of the [V]ictim and Ms. Rankin and in the trash bin at the Beaver Falls Motel. . . .

In addition, Detective Chamberlain obtained documentation from Verizon Wireless depicting the sites of cellular telephone towers in Beaver County from which he was able to confirm the approximate location of [Appellant] when he was using his cellular telephone. This information, together with the known observations of [Appellant] from witnesses and the video displays of [Appellant] at bank ATM and retail locations, placed [Appellant] in the area of the [V]ictim’s

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residence during the hours when she would have been killed and at the various locations at which he made ATM withdrawals and purchases using the [V]ictim’s credit/debit card.

An examination of [Appellant’s] blue jeans and tennis shoes under a blue light revealed possible blood stains. Samples of the blood of the [V]ictim and [Appellant], together with [Appellant’s] blue jeans, were delivered to the Pennsylvania State Police Crime Laboratory for analysis. Jennifer Badger, a forensic scientist in the serology section, determined that two stains on the outside seam of the lower leg of [Appellant’s] blue jeans consisted of blood. She further detected the presence of blood on the eyelet of the toe of [Appellant’s] left athletic shoe, but the sample was insufficient for a confirmatory testing for blood. In addition, examination of the handle of a steak knife found in the kitchen sink of the [V]ictim’s residence submitted to the crime laboratory disclosed evidence of blood. Ms. Badger prepared samples of dried blood of the [V]ictim and [Appellant] and swabs of the blood on [Appellant’s] jeans, tennis shoes[,] and the steak knife for submission to the DNA section of the crime laboratory. Michael Biondi, a forensic scientist supervisor in the DNA section, conducted DNA testing on the swabs of [Appellant’s] blue jeans and determined that the blood on the jeans matched the [V]ictim’s blood. The DNA profiles of the [V]ictim and [Appellant] could not be excluded as potential contributors of the blood stain from [Appellant’s] shoe. The DNA profile of the [V]ictim was excluded as a contributor as to the knife in the kitchen sink, while the DNA profile of [Appellant] could not be excluded as a contributor for the blood on the knife, because there also appeared DNA types from two unidentified individuals.

Dr. James Smith, a forensic pathologist, determined that due to observing the greenish discoloration of the body, signifying the first sign of decomposition, the [V]ictim’s death occurred within an 18-hour to 36-hour period between 3:00 [a.m.] and 9:00 [p.m.] on May 12, 2009. Dr. Smith opined that the cause of death was the stab wounds to the neck which incised the right carotid artery and the right jugular vein. He noted a total of 46 knife wounds, 34 of which were located in the left neck region. Dr. Smith

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further described defensive wounds on the [V]ictim’s hands and fingers indicating that the [V]ictim attempted to ward off her attacker. He testified that the concentration of the wounds in the neck area was an indication the [V]ictim was held down and was struck with such force as to penetrate from the left through the right side of the neck. Dr. Smith estimated that the blade of the knife was approximately one-half inch in width and three inches in length. The manner of death was homicide.

James Sarver met [Appellant] on May 15, 2009, while both were inmates in the Beaver County Jail. Mr. Sarver also was familiar with Mr. Campbell from whom he had purchased marijuana in the past. Mr. Sarver related that [Appellant] admitted to him that he had killed [the Victim] and intended to place blame on Mr. Campbell for the crime. In a second conversation with Mr. Sarver, [Appellant] queried as to why Mr. Campbell came to the [V]ictim’s residence and removed the sheets on the bed revealing the pool of blood. [Appellant] informed Mr. Sarver of the limit of $500.00 on the [V]ictim’s credit/debit card and confirmed that he went partying and shopping after the killing. Mr. Sarver testified that he had previously been a visitor at the [V]ictim’s residence, [but was] limited [] to the main floor of the house.

Zack Valentine was [Appellant’s] cellmate at the Beaver County Jail for approximately two weeks. On May 18, 2009, Mr. Valentine provided a statement to police in which he indicated that he had become acquainted with [Appellant] prior to their incarceration while working at Crow’s Run Recycling. Mr. Valentine stated that [Appellant] acknowledged that he had killed the victim, wrapped her in a blue blanket and placed her body in the stairway to the attic between the two bedrooms in the [V]ictim’s residence. [Appellant] also outlined [to Mr. Valentine] the layout of the house and provided a diagram detailing the location of the bedrooms and the doorways from each bedroom to the attic. [Appellant] further described [to Mr. Valentine] the placement of a tan blanket covering the blood on the bed and complained that Mr. Campbell had pulled the blanket away exposing the blood. Mr. Valentine, who had never been to the residence, drew a diagram of the residence for the police based upon [Appellant’s] description. Mr.

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Valentine had been unaware of the homicide until his conversation with [Appellant].

[Appellant] presented evidence in an effort to place culpability for the crime on Mr. Campbell by attempting to demonstrate that he had been physically abusive toward the [V]ictim and that he had a financial motive for killing her.

Mr. Campbell testified that the [V]ictim called him shortly after he had moved out of the house and into Ms. Babich’s residence, indicating that she desired to title the home in both of their names. Ms. Babich, who was a mortgage processor and notary public, fabricated the transfer by having the deed prepared, notarizing [the Victim’s] signature, recording the deed and paying the recording fee and transfer taxes, for which she was subsequently reimbursed.

Patricia Celeste, the [next-door] neighbor and friend of the [V]ictim, observed a black eye on the [V]ictim on one occasion and her leg to be injured at a subsequent meeting, both injuries which the [V]ictim attributed to [Appellant]. When Ms. Celeste confronted [Appellant] regarding the incidents, he apologized for his actions. He further explained that the black eye occurred when he became angry with the [V]ictim for refusing to eat dinner he had prepared and he had struck the [V]ictim with the food plate. ...

Stacie Delp, Kristine Ramer[,] and Nancy Pranskey, all co- workers of the [V]ictim, noted black eyes on the [V]ictim, with Ms. Delp also observing the injured leg. Only Ms. Pranskey testified that the [V]ictim told her that the injuries were inflicted by Mr. Campbell.

On the evening of May 9, 2009, while Mr. Campbell, his wife[,] and his friend, Martin Costanza, were patrons at Harvey Run Inn, a local tavern, Crystal Barnes, an employee, overheard Mr. Campbell, following a telephone conversation, say loudly to his wife, “cha-ching, cha- ching[.”] Ms. Barnes admitted to being unaware of the meaning of Mr. Campbell’s remarks. Approximately two to three months following the [V]ictim’s death, Mr. Campbell was advised by correspondence from Wal-Mart, the

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[V]ictim’s employer, that he was the beneficiary of the [V]ictim’s retirement account in the amount of $1,893.34 and life insurance benefits in the amount of $22,000.00. The [V]ictim had designated Mr. Campbell the beneficiary as her common-law husband on June 27, 2005, approximately four years prior to her death. Mr. Campbell denied any knowledge that he was the [V]ictim’s beneficiary prior to receiving notice from her employer. He, in fact, received the proceeds from both the retirement account and the life insurance as a result of [the Victim’s] death.

Mr. Campbell also was the surviving joint tenant of the residence, and thus became sole owner following the [V]ictim’s death. Testimony indicated that the balance of the mortgage was approximately $30,000.00 with the value of the home estimated at $10,000.00 due to its deteriorated condition.

In rebuttal, the Commonwealth introduced the medical records of the [V]ictim from Heritage Valley-Beaver Hospital for the period from 2004 through 2008, which revealed that she was treated on several occasions as a result of injuries sustained by falling. . . . [During trial, the] thrust of [Appellant’s] defense was that Mr. Campbell had the motive and opportunity to kill the [V]ictim, since he would benefit financially by her death, and that he had physically abused the [V]ictim in the past.

B. Facts and Evidence Adduced at the PCRA Hearing Held on August 4, 6[,] and 8 2014

1. [Appellant’s Trial Counsel,] Thomas Kurt Fuchel

As noted earlier, the [PCRA] court conducted a hearing on [Appellant’s PCRA] petition on August 4, 6[,] and 8, 2014. The [PCRA] court heard testimony during parts of each of those three days. . . . [Appellant] first called Thomas Kurt Fuchel, Sr., Esquire [(hereinafter “Attorney Fuchel”)], who was lead defense counsel at the time of trial. He was assisted by a new public defender at that time named Rebecca Fields, who was not called to testify by either party at the PCRA hearing. [Attorney Fuchel] first testified that it was protocol or procedure, at the time of [Appellant’s] trial,

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for an Assistant Public Defender to begin representation in a case at the preliminary hearing stage and continue with the case through trial. [Attorney Fuchel] did that in this case.

[Attorney Fuchel] testified that he handled the preliminary hearing. He testified that it was his practice to speak with the client prior to the preliminary hearing in the lock-up facility. He did not recall whether he met with [Appellant] before the preliminary hearing in this case, but indicated that was his standard practice. [Attorney Fuchel] could not provide any specific information as to when he met with [Appellant]. He did admit that it was significant to meet with the client early in the case to discuss strategy and to discuss what the [client] did or did not do or know in connection with the charges.

[Attorney Fuchel] indicated that the Commonwealth provided extensive discovery. According to [Attorney Fuchel], [Appellant] complained about not receiving discovery, and [Attorney Fuchel] claims that this prompted him to make sure [Appellant] received the discovery. [Attorney Fuchel] stated that he believed it was his decision regarding what portions of the discovery or other information to use in this case. [Attorney Fuchel] claimed that he had discussions with [Appellant], both before and during trial, regarding what information to use. He conceded that use of prior criminal convictions under [Pennsylvania Rule of Evidence] 609 is a significant tool to impeach witnesses for the opposing side.

[Within Appellant’s PCRA petition, Appellant first claimed that trial counsel was ineffective for failing] to use prior convictions and other information for purposes of impeaching key Commonwealth witnesses. [Appellant’s counsel] at the PCRA hearing initially questioned [Attorney Fuchel] about a Commonwealth witness by the name of Laura Rankin. [Ms.] Rankin had, and testified to, information regarding [Appellant] using the [V]ictim’s credit/debit [card] to make bank withdrawals. [Attorney Fuchel] testified that it was his theory that Robert Campbell, who was a former boyfriend of the [V]ictim, committed the murder. [Attorney Fuchel] continued by stating that he believed that [Ms.] Rankin was actually a helpful witness to the defense because she also had information that

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[Appellant] used the [V]ictim’s credit/debit card not only at and shortly after the time of the murder, but also prior to that time. [Ms.] Rankin also testified that [Appellant] had the PIN for the credit card further confirming, according to [Attorney Fuchel], that her testimony would actually indicate that [Appellant] did not just use the credit card after the murder, but also before the murder showing his consented-to access to the card. [Attorney Fuchel] thought this was beneficial testimony. . . .

[Appellant’s] counsel at the PCRA hearing pointed out and entered exhibits to confirm that [Ms.] Rankin had convictions for retail theft, trademark counterfeiting[,] and theft by unlawful taking, all of which were . . . crimen falsi. The Commonwealth confirmed, on cross-examination, that [Attorney Fuchel] did not want to impeach [Ms.] Rankin because she was actually favorable to [Appellant’s] position in this case. However, [Appellant’s] counsel noted for the [PCRA] court that . . . [Attorney Fuchel] cross-examined [Ms.] Rankin about using crack cocaine in the presence of her child, which was a form of impeachment, but yet chose not to impeach her credibility with [the prior convictions for] crimen falsi.

[During Appellant’s trial, t]he second Commonwealth witness who had prior criminal convictions was Zachery Valentine. [Mr.] Valentine was [Appellant’s] cell mate at the Beaver County Jail, and [Mr.] Valentine testified at trial regarding [Appellant’s] admissions about his ([Appellant’s]) involvement in the killing.

[Attorney Fuchel] testified that he discussed [Mr.] Valentine with [Appellant], and according to [Attorney Fuchel], [Appellant] confirmed that some of the statements that [Mr.] Valentine made in a report of interview were true. [Attorney Fuchel] claims that he continuously cautioned [Appellant] not to have conversations with [Mr.] Valentine. [Appellant] never admitted his guilt to [Attorney Fuchel], but, according to [Attorney Fuchel], [Appellant] did confirm some of the things that [Mr.] Valentine said.

Interestingly and bewildering to the [PCRA] court was [Attorney Fuchel’s] concern about perjury if [Appellant] testified at trial because [Appellant] allegedly said he was

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going to lie at trial regarding the statements that [Mr.] Valentine made. This had very little, if anything, to do with regard to why [Attorney Fuchel] did not cross-examine [Mr.] Valentine. When pressed by [Appellant’s] counsel at the PCRA hearing, [Attorney Fuchel] confirmed that he [should have] impeach[ed] this type of witness. [Mr.] Valentine had a conviction for theft by deception, and another conviction in Fayette County. [Attorney Fuchel] confirmed that he did not question [Mr.] Valentine about these matters, and [Attorney Fuchel] indicated that it was inadvertent not to use them, that they must have slipped through the cracks[,] and that his decision not to use them was bad in hindsight.

A third Commonwealth witness who testified against [Appellant at trial] was James Sarver. [Mr.] Sarver was another jailhouse informant, who indicated that [Appellant] admitted to the killing. [Mr.] Sarver also had a conviction for terroristic threats. Although not a crimen falsi crime, [Mr.] Sarver was on probation, and [Attorney Fuchel] could have questioned [Mr.] Sarver on whether he expected any favorable treatment on a probation violation, which was never done. [Attorney Fuchel] did question [Mr.] Sarver about a simple assault charge that was dismissed. . . . [Attorney Fuchel] conceded that, in hindsight, he should have used the terroristic threats probationary situation for cross-examination purposes at trial. [Attorney Fuchel] could not explain his failure to use this information.

A fourth Commonwealth witness who testified [during Appellant’s trial] was Kelly Carter. [Mr.] Carter came to the residence after the crime and was present when Robert Campbell, the person who [Attorney Fuchel] intended to pin blame on, saw blood on a dog at the residence and pointed this out to [Mr.] Carter. [Mr.] Carter had a [prior] conviction for receiving stolen property, which [Attorney Fuchel] did not use to cross-examine [him]. [Attorney Fuchel] indicated that he would normally impeach this type of witness, but did not do so in this case because he believed that [Mr.] Carter’s testimony was favorable to the defense in that it tended to implicate [Mr. Campbell].

The fifth Commonwealth witness [to testify at trial] was Brian Silberger. At trial, [Mr.] Silberger testified that

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[Appellant] purchased several thousand dollars of crack cocaine from him (Silberger) at or around the time of the murder. [Mr.] Silberger further testified that when he (Silberger) questioned [Appellant] concerning the whereabouts of the [V]ictim, [Appellant] told him [] that the [V]ictim was in Maryland visiting her brother. [Mr.] Silberger had a conviction for burglary and a second conviction for theft by unlawful taking. Both of these crimes were of a crimen falsi nature and [Attorney Fuchel] could not recall why he did not use them for cross-examination purposes.

The sixth Commonwealth witness [to testify] was Patrick Brown. [Mr.] Brown was the second witness to testify regarding [Appellant’s] drug purchases or attempts to purchase drugs at or around the time of the homicide. [Mr.] Brown conceded that he was informed by the Commonwealth that he would not be charged for providing drugs to [Appellant]. [During trial, Attorney Fuchel] questioned [Mr.] Brown regarding the fact that he would not be charged, going to [Mr.] Brown’s bias or motive to testify, but neglected to question him about two pending cases and the potential for favorable treatment or leniency in those cases based on this testimony. [Attorney Fuchel] confirmed that it would make sense to question the witness on these issues, but added that he was not sure he knew about these charges. [Attorney Fuchel] conceded that the use of such impeachment material could increase the chance of [an] acquittal.

The second issue raised by [Appellant] in his PCRA petition [concerned] testimony that revealed [Appellant’s] incarceration at the time of trial. [Attorney Fuchel] confirmed that a defense lawyer usually attempts to preclude reference to the client being in jail. [Attorney Fuchel] noted, however, that it was extremely difficult in this case because of others who testified regarding admissions made by [Appellant] and who were in jail with him. [Attorney Fuchel] stated that he did discuss this issue with [Appellant] and confirmed that the reference to being in jail was an important issue.

[Attorney Fuchel] was pressed by [Appellant’s PCRA] counsel, and indicated that he [believed] he discussed this

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issue in detail with [Appellant], but was not sure. It was at this point that [Attorney Fuchel] added that he had problems communicating with [Appellant] during trial and that most of the problems for this lack of communication [were Appellant’s fault]. According to [Attorney Fuchel], he gave discovery to [Appellant] twice. He said he mailed the discovery the first time, and [Appellant] said he did not receive it. This, according to [Attorney Fuchel], prompted him to go to the jail personally and deliver the discovery in the presence of the Assistant Warden. [Attorney Fuchel] said there were two occasions at the jail when he had problems with [Appellant].

[Attorney Fuchel] testified that, at one of these two instances, [Appellant] became very physical and threw the public defender’s paralegal, Dionna Steele, to the ground and went after [Attorney Fuchel]. [Attorney Fuchel] stated that [Appellant] became verbally abusive on a second occasion. He indicated that [Appellant] caused these disruptions.

As to the issue of [Appellant] being in jail, [Attorney Fuchel] added that it was trial strategy for this information to come into evidence because [Attorney Fuchel] thought it would be helpful for the jury to know that the individuals who were testifying were also in jail.

The Commonwealth brought out the fact that they objected when [Attorney Fuchel] went down this road, and [Attorney Fuchel] asked for a sidebar with the court at trial and confirmed that he wanted this information before the jury. The Commonwealth stipulated that the information came before the jury at the request of [Appellant] with no objection or curative instruction requested.

[Attorney Fuchel] was also questioned regarding the third issue raised by [Appellant in the PCRA petition], namely whether Zachery Valentine was acting as an agent of the government when he was debriefed by the Commonwealth and then placed back in the same cell with [Appellant]. [Appellant’s PCRA] counsel assert[ed] that this [gave] rise to the basis for a motion to suppress the statements [Appellant] made to [Mr.] Valentine on the basis that [Mr.] Valentine may have been acting as an agent for the

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Commonwealth in securing admissions without [Miranda] warnings. [Attorney Fuchel] said he did not know that [Mr.] Valentine was questioned and placed back in the same cell and never considered this issue or argument.

2. [Appellant]

[Appellant] also testified at the PCRA hearing. . . . [Appellant] testified that [Attorney Fuchel], with the assistance of another Assistant Public Defender, Beth Manifesto, handled his preliminary hearing on August 1, 2009. [Appellant] testified that he never met with [Attorney Fuchel] prior to the preliminary hearing and that [Attorney Fuchel] never came to the jail to see him and never spoke with him in the lock-up prior to the preliminary hearing. The first time that [Appellant] actually met with, and saw [Attorney Fuchel] was in the courtroom when the preliminary hearing occurred.

The next step in the process was the arraignment in October [] 2009. [Appellant] was incarcerated between the time of the preliminary hearing and the arraignment, and testified that he had no contact with [Attorney Fuchel] between the time of the preliminary hearing and the arraignment.

[Appellant] stated that a private investigator for the public defender’s office did come to the jail in early 2010 to gather information and that [Attorney Fuchel] came to the jail later in January [] 2010 and several times between January [] 2010 and the time of trial in July [] 2010.

[Appellant] confirmed that paralegal Dionna Steele came to the jail several times to meet with him, and on one occasion [Attorney Fuchel] was also present. As to the incident in which [Attorney Fuchel] claimed that [Appellant] became verbally abusive and physical, [Appellant] testified that [Attorney Fuchel] actually got in his face and that he ([Appellant]) did not get physical with [Attorney Fuchel]. [Appellant] stated that the incident got very loud and that a jail guard came into the room because of the noise.

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According to [Appellant], Dionna Steele advised the guard that [Appellant] did nothing wrong.

[Appellant] went on to state that, after his conviction in this case, he had to file his own appeal because [Attorney Fuchel] neglected to timely file the appeal. No post- sentence motion was filed. [Attorney Fuchel] requested several extensions to file a brief for the appeal, and the appeal was eventually remanded to the trial court by the Superior Court because of this. [Appellant’s PCRA counsel was] appointed and handled [Appellant’s direct] appeal.

[Appellant] testified that[,] throughout the trial[] and [the] early appeal proceedings, [Appellant’s] mother was providing letters to [Attorney Fuchel], [to] which [Attorney Fuchel] failed to respond[]. [Appellant] filed his own PCRA petition in September [] 2013 and [PCRA counsel] filed [an amended PCRA petition] in April[] 2014.

[Appellant] did address specific comments and allegations raised by [Attorney Fuchel]. As to the testimony of Zachery Valentine, [Appellant] advised that [Attorney Fuchel] told him that [Mr.] Valentine was going to testify that [Appellant] confessed to [Mr.] Valentine and that this testimony may hurt at trial. [Appellant] testified that he never said he would perjure himself. According to [Appellant], he [] requested that [Attorney Fuchel] cross- examine [Mr.] Valentine with impeachment material, and [Attorney Fuchel] responded that he did not want to complicate the case. [Appellant] was adamant about the fact that he pressed [Attorney Fuchel] to impeach [Mr.] Valentine.

As to Laura Rankin, [Appellant] claim[ed] that he actually brought some of the crimen falsi convictions to [Attorney Fuchel’s] attention. [Appellant] testified that [Attorney Fuchel] never advised [Appellant] that he [would not] use the information against [Ms.] Rankin because she was favorable. Instead, [Appellant] testified that [Attorney Fuchel] did not even know about [Ms.] Rankin’s prior convictions until [Appellant] brought them to his attention.

With regard to all of the Commonwealth witnesses who had prior convictions, [Appellant] testified that he was not

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aware that a corrupt and polluted source charge was in order and that [Attorney Fuchel] never requested one. It was only after present [] counsel brought this to [Appellant’s] attention that he was aware of this.

As to the issue of [Appellant’s] incarceration being brought up at trial, [Appellant] stated that [Attorney Fuchel] told him . . . that Robert Campbell had already testified to it and therefore it would come in. According to [Appellant], [Attorney Fuchel] never discussed this issue with him in advance or whether it was part of the trial strategy. [Appellant] claimed that he knew it was not right for this information to come in because the sheriff went to great lengths to keep the jury from seeing [Appellant] being escorted to the courtroom by deputy sheriffs in handcuffs and shackles during breaks in the trial.

[Appellant] testified that when it was time for the defense case to begin, [Attorney Fuchel] called multiple witnesses in a brief period and then turned to [Appellant] and said “you’re next, but I suggest you not testify.” [Appellant] contends that this [was] the only time [Attorney Fuchel] discussed with him whether or not to testify.

With regard to the third issue, namely, Zachery Valentine potentially being an agent of the government, [Appellant] testified [that Attorney Fuchel] never discussed this issue with him. It came to light that [Mr.] Valentine had testified for the Commonwealth in other cases and that neither [Appellant] nor [Attorney Fuchel] knew this.

[Appellant] testified that he wrote a letter to the trial judge [] regarding [his] failure to receive discovery. [Appellant] claims that [Attorney Fuchel] came to the jail angry after receiving notice that [Appellant] wrote a letter to the judge. [Appellant] claims that [Attorney Fuchel] came into the cell, crumbled the letter, told [Appellant] never to write a letter to the judge again, told [Appellant] that he ([Attorney Fuchel]) was going to trial with what information he had, and told [Appellant] that he ([Appellant]) was going to burn. After this discourse, [Attorney Fuchel] left the cell. . . .

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3. [Detective] Robert Chamberlain

[Appellant] also called Beaver County Detective Robert Chamberlain as a witness at the PCRA hearing. [Detective] Chamberlain was a co-affiant on the criminal charges filed against [Appellant]. The Detectives’ Bureau is part of the Beaver County District Attorney’s Office. Detective Chamberlain was questioned about the involvement of Zachery Valentine in this case and his use as a witness by the Commonwealth. [Detective] Chamberlain testified that he did not know Zachery Valentine prior to [Appellant’s] case. [Detective] Chamberlain testified that he met with [Mr.] Valentine twice during [Appellant’s] case.

According to [Detective] Chamberlain, [Mr.] Valentine first came to the attention of the Commonwealth when [Mr.] Valentine’s wife called the District Attorney’s Office and advised that a representative of the District Attorney should speak to [Mr.] Valentine regarding [Appellant’s] case. This caused the District Attorney’s Office to request transport of [Mr.] Valentine from the Beaver County Jail to the Beaver County Courthouse for questioning on May 18, 2009, prior to the trial in this case. [Detective] Chamberlain advised that he secured all of [Mr.] Valentine’s knowledge and information in the interview of May 18, 2009 and had no intention of speaking with [Mr. Valentine] again short of requesting his testimony at the trial. [Detective] Chamberlain did indicate that there eventually arose the need for a second meeting for the purpose of having [Mr.] Valentine draw a diagram of the crime scene. [Detective] Chamberlain indicated that he did not know that [Mr.] Valentine had served as a witness for the Commonwealth in prior cases at the time he interviewed [Mr.] Valentine in 2009. [Detective] Chamberlain learned this later through discussion with another Beaver County Detective, Kim Clements. According to [Detective] Chamberlain, [Mr.] Valentine expressed fear of being in the same cell with [Appellant], and [Detective] Chamberlain testified that he never told [Mr.] Valentine to keep his eyes and ears open about the case or to solicit any further information from [Appellant] after the initial interview on May 18, 2009.

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On cross-examination, [Detective] Chamberlain testified that he was able to corroborate [Mr.] Valentine’s information given during the interview. In fact, [Detective] Chamberlain stated that he left the interview room on several occasions during the interview to check [Mr.] Valentine’s statement and was able to confirm what he was saying based upon review of phone records and photos of the crime scene. [Detective] Chamberlain was the final witness called by [Appellant].

4. [Detective] Kim Clements

The [Commonwealth] commenced its case on Friday, August 8, 2014. [The Commonwealth] first called Detective Kim Clements. [Detective] Clements testified regarding Zachery Valentine. She [testified] that she knew [Mr.] Valentine as a result of his prior testimony for the Commonwealth in another homicide case. She did participate in [Mr.] Valentine[’s] interview on May 18, 2009. [Detective] Clements testified that she played no part in arranging for [Mr.] Valentine to be interviewed or in his involvement in this case. She confirmed that it was [Mr.] Valentine’s wife who brought him to the attention of the prosecution. [Detective] Clements also confirmed that neither she nor anyone else from the prosecution gave [Mr.] Valentine any instructions to pursue further information from [Appellant] or to act as an agent for the Commonwealth.

On cross-examination, [Detective] Clements [testified] that . . . she never instructed [Mr. Valentine] . . . to come back with [] additional information after the first interview. . . . [Detective] Clements confirmed that there was a second interview of [Mr.] Valentine and also stated that she was involved in his preparation for testimony at trial.

5. [Chief] Eugene St. Clair

The next Commonwealth witness was Chief Eugene St. Clair of the Freedom Police Department. [Chief] St. Clair is now the chief, but was a sergeant at the time of [Mr.] Valentine’s interview. [Chief] St. Clair was the co-affiant on the criminal charges with Detective Chamberlain. [Chief] St. Clair indicated that he could not recall all of the details

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of the interview without referring to his report and was permitted to do so. [Chief] St. Clair did recall that [Mr.] Valentine gave specific information regarding [Appellant’s] statement that coincided with evidence found at the crime scene. [Chief] St. Clair also confirmed that he gave no instructions to [Mr.] Valentine to solicit any additional information from [Appellant]. The one thing that [Chief] St. Clair testified to that was inconsistent with [Detectives] Chamberlain and Clements was that [Chief] St. Clair’s report rais[ed] the inference that there were a number of interviews with [Mr.] Valentine. There are no other specifics on dates of the interviews. Also, there was additional information in [Chief] St. Clair’s report that was not in [Detective] Chamberlain[’s] report, but no major inconsistencies. [Chief] St. Clair did not know [Mr.] Valentine prior to the interview in question. [Chief] St. Clair indicated that he only interviewed [Mr.] Valentine in the presence of Beaver County detectives, but did recall that he was involved in interviews on more than one occasion.

6. Dionna Steele

The final witness called by the Commonwealth was Dionna Steele, a paralegal in the Beaver County Public Defender’s Office. . . . Reference to Attorney Fuchel’s testimony above reflects that [Attorney Fuchel] testified to an incident at the Beaver County Jail in which [he] claimed that [Appellant] became hostile in an attorney interview room with Dionna Steele present. [Attorney Fuchel] testified that [Appellant] pushed Ms. Steele to the ground and came after [Attorney Fuchel]. Ms. Steele gave quite a different version of that event. She recalled that she took an envelope to the jail from Attorney Fuchel to deliver to [Appellant]. She indicated that she had met with [Appellant] on a number of occasions at the jail and never had a problem with him. On the particular occasion when she took the envelope to the jail for Attorney Fuchel, she was in the attorney meeting room with [Appellant] when [Attorney Fuchel] entered the room. She testified that [Attorney Fuchel] began yelling at [Appellant] and [Appellant] began to yell back. She became frightened and stepped back. She actually pushed the emergency button in the room because of the situation. She stated that [Attorney Fuchel] began to back up and actually backed into her. [Appellant] thought she might fall

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and grabbed her arm to prevent her from falling. Other than this, [Ms.] Steele testified that [Appellant] never touched her. A jail guard came into the room, and [Ms.] Steele told the guard that [Appellant] did not do anything wrong.

On both direct and cross-examination, [Ms.] Steele testified that it was Attorney Fuchel who got into [Appellant’s] face. She specifically testified that the situation was escalated by Attorney Fuchel pounding on the table. She was startled by Attorney Fuchel’s actions and specifically recalled that he walked toward [Appellant] and got into his [] face. She said that [Attorney Fuchel] was within inches of [Appellant’s] face. She stated that [Attorney Fuchel] was very angry and was clearly the aggressor in this situation. According to [Ms.] Steele’s testimony, the relationship between the two was hostile from that point forward.

[Appellant’s] counsel pressed [Ms.] Steele on cross- examination and was successful in getting [Ms.] Steele to say that [Appellant] never gave her a problem throughout the time that she met with him prior to trial. In fact, she stated that [Appellant] was always respectful. She stated that [Appellant] was very frustrated in her discussions with him about discovery and the fact that he ([Appellant]) was not receiving anything from [Attorney Fuchel]. [Ms.] Steele stated that she told the jail guard that [Appellant] did nothing wrong in the attorney meeting room because she believed that and did not want to see [Appellant] receive sanctions at the jail. . . .

PCRA Court Opinion, 11/19/14, at 1-34 (some internal capitalization and

citations omitted).

The PCRA court denied Appellant post-conviction collateral relief in an

order entered on November 19, 2014. Appellant field a timely notice of

appeal and now raises the following claims to this Court:

1. Did the unjustified failure to impeach central prosecution witnesses in this case with relevant aspects of their criminal records, pending charges[,] and current probationary status

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establish all three of the prongs of the test for ineffective assistance of counsel under Pennsylvania law?

2. Was trial counsel ineffective for eliciting a statement from a Commonwealth witness about the prior incarceration of [Appellant], which, once that fact was brought out, allowed the jury to carry with it the unforgettable picture of [Appellant] sitting in jail, convicted of crimes and of such a character that he was more likely to commit the crime for which they were now tasked with judging [Appellant]?

3. Was trial counsel ineffective for failing to present a motion to suppress a confession surreptitiously obtained by a jailhouse informant because the manner in which the confession was obtained violated [Appellant’s] Sixth Amendment rights where the informant was acting pursuant to an implied understanding with the district attorney and where the informant was returned to the same cell with [Appellant] even after the informant told detectives that he was afraid to return to the same cell?

Appellant’s Brief at 4 (some internal capitalization omitted).

We have reviewed the briefs of the parties, the relevant law, the

certified record, and the well-written and through opinion from the able

PCRA court judge, the Honorable James J. Ross. We conclude that the

claims raised in Appellant’s brief fail and that Judge Ross’ opinion, filed on

November 19, 2014, meticulously and accurately explains why Appellant’s

claims fail. Therefore, we adopt the PCRA court’s opinion as our own. In

any future filings with this or any other court addressing this ruling, the filing

party shall attach a copy of the PCRA court’s opinion.

Order affirmed. Jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/16/2015

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IN THE COURT OF COMMON PLEAS OF BEA VER COUNTY PENNSYLVANIA CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANlA

v. No. 1592 of2009

BENJAMIN J. DENNERLEIN

ROSS, J. November \<3, , 2014 M.EMQRANDUM OPlN.ID.N INTRODUCTION On June 17, 2009, the defendant, Benjamin J. Dennerlein, was charged with a general

charge of homicide by the Freedom Borough Police Department in conjunction with the

· assistance of the Beaver County District Attorney Detectives Bureau. The charges stein

h.:11 an incident that occurred In Freedom Borough, Beaver County, Pennsylvania, in either

the late evening hours of May 1?. or early morning hours of May 13, ~009. Tie vie 11r.,

Elizabeth Grosskopf, was fo1.uh.i dead in her residence at 1475 Fifth Avenue Freedom

Borough, Beaver County, Pennsylvania. An autopsy determined that Grosskopf died due to

, nulttple stab wounds to the head and neck areas. After· an investigation by the Fceedon

Borough Police and the Beaver County Detectives' Bureau, the defendant was charged with

homlclde.

The case was scheduled for a jury trial before the Honorable John Dohanlch, now

Senior Judge of this Court, with jury selection taking place on Monday, July 26, 2010. After ,. the Jury was selected, the case proceeded to trial, and the jury convicted defendant of first Circulated 10/29/2015 10:26 AM

degree murder on August 3, 2010. On September 29, 2010, Judge Dohanich sentenced the

defendant to life imprisonment without parole.

No post-sentence motions were filed, but a timely notice of appeal was filed with the

Superior Court, by the defendant himself, on October 27, 2010. The appeal was denied, and

the conviction was affirmed, by Opinion and Order of the Superior Court dated April 2,

2012. A timely petition for allowance of appeal was presented to the Pennsylvania Supreme

Court, which was denied by Order of the Supreme Court dated October 22, 2012.

· The defendant filed a timely pro se petition for po_{>t~convjction relief, and Attorney ---------------·--· . Mitchell Shahen was appointed by the Court to represent the defendant in the post-

• conviction proceedings. Attorney Shahen filed an Amended Petition for Post-Conviction

Collateral Relief with this Court on April 7, 2014, which was timely based upon granted

motions for extension of time. The Commonwealth tiled a response and memorandum in

opposition to the petition, and defense counsel filed a brief In support.

The Court conducted a hearing on the petition on August 4, 6 and 8 of 2014,

receiving the testimony of various witnesses on those dates. The Court also received

exhibits and has reviewed the court file as well as the transcripts of the trial. For the

reasons stated below, defendant's petitions are denied.

FACTS A. Facts and Evidence Adduced and Presented at Trial In July and Au~st, 2010 After the defendant filed his notice of appeal, fudge Dohanlch issued an Order

requiring the defendant to file and serve a concise statement of errors complained of on

appeal pursuant to Pa.R.App.P. §192S(b), which the defendant did. Judge Dohanlch

2 Circulated 10/29/2015 10:26 AM

authored an opinion regarding the errors complained of on appeal on April 7, 2011. In that

opinton, Judge Dohanich recited the facts established at the jury trial. The Court has ' i :reviewed the transcripts of the trial and believes that Judge Dohanich has accurately i .captured and summarized the facts established, and the Court reiterates those facts In the

[following pages.

The victim, Elizabeth Grosskopf, age 54, resided at 1475 Fifth Avenue, Freedom, 1 Beaver County, in a residence owned by her and Robert Campbell, a former paramour, with

'whom she maintained a friendly relationship. Ms. Grosskopf was a frail woman In poor

. health, suffering from various medical conditions which caused her to be unsteady and

· prone to falling on occasion. Ms. Grosskopf and Mr. Campbell purchased the residence In

: 2003, subject to a mortgage; however, the property was titled solely in Ms. Grosskopf s

name because of Mr. Campbell's unstable financial condition. Subsequently, Ms. Grosskopf

• transferred the title by deed dated February 28, 2008, to herself and Mr. Campbell, as joint

; tenants with the right of survivorship. The victim and Mr. Campbell previously lived

together for approximately ten years until May, 2008, when Mr. Campbell left the residence

to commence a live-In relationship with his current wife, Karen Otrhalik Babich. Mr.

Campbell and Ms. Babich commenced their relat1onship in December, 2007, which

culminated in their marriage in October, 2008.

Mr. Campbell's last contact with the victim occurred on May 8, 2009, when she

telephoned to inform him that on May 7, 2009, she had received and deposited the sum of

$31,128.14, representing her share of the proceeds from the sa1e of her parents' cottage In

Erie. They discussed the uses to which she could put the funds. Ms. Grosskopf maintained

a personal checking/credit/debit account with the Northern Lights branch of ESB Bank

3 Circulated 10/29/2015 10:26 AM

which she opened May 19, 1997. The account was limited to withdrawals of $510.00 per

• 24-hour period.

Mr. Campbell was introduced to the defendant approximately four years prior to the

victim's death while both were inmates in the Beaver County Jail for reasons unrelated to ·

· : the instant case. Upon release from incarceration, Mr. Campbell and the defendant

maintained a friendly relationship, and the defendant resided with Mr. Campbell and Ms.

· Grosskopf from time to time when he was in need of a temporary residence. All three

individuals were users of and smoked cocaine together on occasion. In December, 2008,

• and continuing until the time of her death, the defendant resided at the victim's home, I ·l . paying rent in the amount of $50.00 per week. The defendant was employed at Crow's Run I

Recycling as a salesperson from 2008 through May 13, 2009. I Prior to her death, the victim was employed as a cashier at the Center Township .i Wal-Mart Ms. Grosskopf last worked on May 11, 2009, from 11 :00 A.M. until 8:00 P.M. and

· was observed at work by her neighbor, Dwight McMorris, while he was shopping at Wal·

Mart Mr. McMorris subsequently observed the victim between 8:40 P.M. and 8:50 P.M. on

the same day as she drove by his home on the way to her residence after completing her

work day. Mr. McMorris was the last person other than the perpetrator to see Ms.

Grosskopf alive.

The victim was scheduled to work on May 12, 2009, from 11:00 A.M. to 8:00 P.M.;

however, she did not appear for work nor call to indicate that she would not be present for

work that day, which was unlike her because she was a reliable employee. Shortly before

her death, Ms. Grosskopf reported to one of her co-workers, Nancy Pranskey, that the

defendant had been stealing from her and using her credit/debit card to purchase items.

4 Circulated 10/29/2015 10:26 AM

. Bank records disclosed that on May 5, 2009, the victim's bank account had been overdrawn

;by $741.11 as a result of eight transactions.

The defendant also did not appear at his place of employment on May 12, 2009, and

.termmated his employment due to a disagreement with his employer, Nick D'Itri, by way of

: a text message on May 13, 2009, at 12:52 P.M. The defendant had been a good employee

i until approximately one month prior to terminating his employment when he began not

! reporting for work. The prior week he failed to appear for work on four consecutive days .

. His employer suspected that drug use was responsible for the defendant's decline in

, performance. The defendant's last working day was May 11, 2009.

Between 10:00 A.M. and 10:30 A.M. on May 12, 2009, Mr. Campbell sought the

· defendant at his place of employment Not locating him at work, Mr. Campbell proceeded

. to the victim's residence and found the defendant present Mr. Campbell noted that the

, defendant appeared to be under the Influence of drugs. When Mr. Campbell inquired of the

. defendant as to the whereabouts of the victim, the defendant replied that he had taken her

to work earlier that morning, because he was In need of her vehicle to run errands. Mr.

Campbell, who maintained various items of personal property at the residence, searched

the home to assure that his belongings were present and was followed through the house

. by the defendant When looking into the victim's bedroom, Mr. Campbell observed that the

bed had been made, which was unusual because the victim was a poor housekeeper and

never made the bed. The defendant was directly behind Mr. Campbell as he was in the

doorway to the victim's bedroom. The defendant and Mr. Campbell became involved in a

heated argument over the defendant not working to pay rent to the victim and his drug use.

Mr. Campbell informed the defendant that he would return to the residence between 8:30

~-- Circulated 10/29/2015 10:26 AM

· P.M. and 9:00 P.M., when the victim returned from work, to speak with the defendant and

I the victim. Later in the same day at 3:25 P.M., the defendant, using the victim's credit/debit

; card, made a balance inquiry at ESB Bank located at 921 Third Avenue in New Brighton.

; The defendant, utilizing the victim's credit/debit card, purchased various items at the

! Chippewa Township K-Mart between 6:51 P.M. and 7:09 P.M. and proceeded to the home of

i Gregory 'Wimpy" Price and Wendy McCoy to deliver items to Mr. Price, including video

: games, movies and an electric can opener, to reimburse Mr. Price for tires that he

purchased from the defendant and which were not appropriate for his vehicle.

At between 8:30 P.M. and 9:00 P.M. on May 12, 2009, Mr. Campbell and his wife ;

! returned to the victim's residence and found no one present The victim's vehicle was not

In the area. Throughout the evening and into the early morning hours of May 13, 2009, Mr.

• Campbell attempted on 30 occasions to reach the defendant and on 17 occasions to contact

: the victim by telephone and through text messages indicating his desire to speak to them.

: He received no responses, except that the defendant sent a text message advising that the

Baden police would be interested In Mr. Campbell's use of marijuana. During the evening.

_ Mr.- Campbell and his wife left and returned to the victim's residence on two additional

occasions and did not find anyone or the victim's automobile at the home. They left for the

final time at approximately 12:00 A.M, returned to their residence and retired for the night

On May 13, 2009, at approximately 12:26 A.M., the defendant checked into Room 12

of the Beaver Falls Motel in Beaver Falls, following which he contacted Laura Rankin asking

her to join him in smoking crack cocaine. Ms. Rankin telephoned Jennifer Bums, requesting

that she provide transportation to the motel. Jennifer Bums and Bryan Sil berger retrieved

6 Circulated 10/29/2015 10:26 AM

· Ms. Rankin and her infant child and drove to the mote) to meet the defendant Ronald

"Toot" Goodman, the father of a child with Ms. Burns, and Patrick Brown, a supplier of

crack cocaine for the defendant, also appeared at the motel. Mr. Brown provided the

: cocaine to the defendant The defendant, when asked the reason for being in possession of

; the victim's vehicle, informed Ms. Rankin that the victim was away on vacation visiting her

niece in Maryland or Virginia. The defendant told Mr. Sil berger that the victim was away in

Maryland to visit her brother for a week The defendant, in an effort to assure Mr. Brown,

: his cocaine supplier, that he had sufficient funds when requesting Mr. Brown to provide an

: advance of drugs, had previously forwarded a text message to him on May 9, 2009, showing

· a balance in the victim's bank account of $29,712.14. The defendant and the other

· individuals smoked crack cocaine throughout the early morning hours of May 13, 2010,

until approximately 5:00 A.M. During that time, the defendant and Ms. Rankin left the

motel and proceeded to two convenience stores to purchase Items and attempted to obtain

funds using the victim's credit/debit card. At one point in time, the defendant advised Ms.

Rankin that he was using the victim's credit/debit card, showed her the balance in the

account and stated to her, "stick with me and good things will happen".

Mr. Campbell, accompanied by two friends, Martin Costanza and Justin Hertnecky,

proceeded to the victim's residence on May 13, 2009, between 8:30 A.M. and 9:00 A.M. No

one was present and the victim's car was not at the residence. The three of them gathered

the defendant's belongings, placed them in garbage bags and stored the bags in the garage

of the residence. Mr. Campbell opened the victim's bedroom door and found the bed in the

same condition as the day before, as if it had not been disturbed. They then left the

7 Circulated 10/29/2015 10:26 AM

residence and returned to Mr. Campbell's house for the balance of the morning. Mr.

.Carnpbell's intention was to evict the defendant

After leaving the motel and driving his friends home, the defendant claimed to have

returned to the victim's residence to locate her, found that she was not present, that her

; bed did not appear to have been slept in, and then proceeded to the Beaver Valley Mall. At

; 1:15 P.M. on May 13, 2009, the defendant presented a check made payable on the victim's

: account to himself in the amount of $1,000.00 at the ESB Bank in Beaver Falls. The memo

portion of the check indicated the words "roof /porch". The defendant explained that he

' had performed work for the victim and the check represented payment Ms. Celeste, the

. victim's next door neighbor, Indicated that no recent work had been done on the· house.

: The bank representative requested identification from the defendant, since he did not have

: an account with the bank, and he provided his driver's license. The check was drawn on

the Northern Lights ESB Bank located in Baden. The Beaver Falls ESB Bank manager

telephoned the Northern Lights branch and obtained a facsimile of the signature card of the

victim. The Beaver Falls branch manager also placed two telephone calls to the victim's

residence and the telephone was not answered on either occasion. Mer being unable to

verify the defendant's correct address and telephone number or the victim's signature, the

bank refused to cash the check and returned the check to the defendant . (

· Trooper Robert Negherborn, a forensic document examiner with the Pennsylvania

State Police Crime Laboratory, recovered from the face of the subsequent check in the

victim's checkbook the Impression of the writing depicting the text of the previous check

payable to the defendant, Including the authorizing signature. He was further provided

with handwriting samples of the victim and the defendant Although not Issuing a

8 Circulated 10/29/2015 10:26 AM

conclusive opinion, Trooper Negherborn testified that in comparing the writing on the I

./ I check with the samples of the handwriting of the victim and the defendant, there was a

: strong probability that the signature on the check was not that of the victim. He further

• opined that there were no significant similarities to indicate that the victim or the

.• defendant wrote the entries on the check, or that the defendant wrote the signature on the

check.

At approximately 2:00 P.M. on May 13, 2009, the defendant purchased tennis shoes

at the Shoe Department Store at the Beaver Valley Mall using the victim's credit/debit card.

A short time later he attempted to return the tennis shoes for a cash refund without the

, credit/debit card and was refused. The defendant was accompanied by Ms. Rankin and

.· met Mr. Price while at the Beaver Valley Mall and purchased other items withthe victim's

. credit/debit card. He also attempted to buy tennis shoes for Mr. Price using the victim's

credit/debit card and was refused.

At approximately 1:00 P.M., Kelly Carter, who had previously made payment of

$500.00 for the purchase of an automobile from the defendant, telephoned the defendant

informing him that he was at the residence desiring to retrieve the vehicle from the garage.

The defendant advised Mr. Carter that he would not arrive for a period of time, and Mr.

Carter waited. When the defendant failed to appear, Mr. Carter made a second telephone

call, at which time the defendant instructed Mr. Carter to enter the home to obtain the

remote control for the garage door. At the direction of the defendant, Mr. Carter entered

the house by way of a window and was unable to locate the remote control while

continuing to speak to the defendant on the telephone. Mr. Carter then telephoned Mr.

Campbell, who subsequently arrived and Informed Mr. Carter that he was In possession of

'II. - Circulated 10/29/2015 10:26 AM

· the remote control and would not permit the removal of the vehicle until the defendant

; appeared. Mr, Carter placed a third call to the defendant, who indicated he would return

: later. Both Mr. Campbell and Mr. Carter observed what appeared to be blood on the

victim's dog and entered the house to investigate, Mr. Campbell entered the victim's

• bedroom and discovered a pool of blood on the bed where the blanket had been pulled

away. He called Mr. Carter into the bedroom to observe the blood. Mr. Carter then

telephoned the defendant, informed him of their findings and inquired whether he knew

the whereabouts of the victim, to which the defendant replied that he thought she was at

work Mr. Carter told the defendant he should return to the residence immediately. The

defendant Indicated that he was at the Beaver Valley Mall and would return home at a later

time. He also stated that he had not been at the residence for several days. Mr. Campbell,

after contacting the victim's employer and the hospital in an unsuccessful attempt to locate

her, placed a call to 9· 1-1 at 2:54 P.M. Freedom Borough Chief of Police John Hill and

Officer William Dreyer of the Freedom Borough Police Department responded to the call at

approximately 3:00 P.M. Andrew Gall of the Beaver County Detective Bureau received a

call for assistance from the Freedom police officers at 3:10 P.M. and responded to the

residence with County Detectives Timothy Staub, Kim Clements, Timmie Patrick and

Robert Chamberlain.

A search of the residence disclosed the victim's body wrapped in blankets in a

stairway on the second floor leading to the attic, which was located between the bedrooms

of the victim and the defendant and could be accessed from both bedrooms. The police

found no evidence of forced entry into the home. When informed of Ms. Grosskopfs death,

Mr. Campbell became extremely distraught As a result of receiving information from Ms.

lO Circulated 10/29/2015 10:26 AM

Rankin's moth er that Ms. Rankin was with the defendant in her vehicle at the Beaver Valley

Mall, a BOLO (be on look out) alert was broadcast for the defendant, the victim's vehicle

and the vehicle being operated by Ms. Rankin and owned by her mother. Ms. Rankin

received telephone calls from a friend and her mother advising that the names of the

defendant and Ms. Rankin were heard on the scanner indicating that the police were

attempting to locate the defendant

Detective Patrick proceeded to the defendant's place of employment and in speaking

to Mr. D'ltri found that the defendant last worked on May 12, 2009, and terminated his

employment on May 13, 2009. Mr. D'Itri provided the defendant's cellular telephone

number to Detective Patrick, who attempted several calls and text messages to the

defendant with no response.

At 6:07 P.M., Officer Maxim Strano of the Center Township Police Department, in

response to the alert, located the defendant and Ms. Rankin in the automobile being

operated by Ms. Rankin as it was backing out of a parking space at the Beaver Valley Mall.

The defendant stated to Ms. Rankin "to go or he was going to run". Officer Strano drew his

weapon, ordered both individuals to the ground, approached the defendant and placed him

in handcuffs. The defendant stated that he thought about running and should have run

when he saw the officer. The defendant also indicated that Officer Strano had the wrong

man. The victim's credit/debit card was found in the defendant's wallet The victim's

vehicle was also located a short distance away.

The defendant and Ms. Rankin were transported to the Center Township Police

Department At 6:39 P.M., the defendant waived his Miranda rights and agreed to speak

with Detectives Patrick and Clements. The defendant was informed of Ms. Grosskopf's

11 Circulated 10/29/2015 10:26 AM

; death and showed no emotion. He indicated that in the evening hours of May 11, 2009, he

; and his girlfriend, Colleen Cantella, were at the victim's residence viewing the Pittsburgh

, PenguinsjWashington Capitals hockey game. The defendant further advised that the victim

came home from work during the hockey game. According to the defendant, Ms. Cantella i I : departed after the hockey game to return to her residence. This information was contrary I to the statement made by Ms. Cantella that she was not at the victim's residence on May i i ; 11th and that the two of them had exchanged text messages between 9:23 P.M. and 10:07 i I . P.M. near the end ofthe hockey game, when she was at her own residence. The defendant

• stated that on May 12, 2009, he drove the victim to work at Wal-Mart at approxJmately

10:00 A.M., attended to several errands and returned to the residence, when he made

contact with Mr. Campbell and a verbal argument ensued. Mer the disagreement with Mr.

Campbell, he advised that he left the residence, ran a few more errands and went on a crack

cocaine binge. He stated that he returned to Wal-Mart between 8:00 P.M. and 8:30 P.M. to

pick up Ms. Grosskopf, and when she did not come out to the vehicle, he went into the store

and was told that she was not at work all day. He also advised the detectives that he tried

to call Ms. Grosskopf and received no reply. The victim did not report for work on May 12,

2009, and video footage of the entrance and the customer service area of Wal-Mart

disclosed that the defendant did not appear at the relevant time. He obtained crack

cocaine from Mr. Price and checked into the Beaver Falls Motel to smoke crack cocaine with

Ms. Rankin and her friends. They all remained at the motel into the early morning hours of

May 13, 2009. He advised that he checked out of the Beaver Falls Motel at approximately

11:00 A.M. and returned to the residence to look for the victim. He found that her bed was

made and did not appear to have been slept in. The defendant then proceeded to the

12 Circulated 10/29/2015 10:26 AM

Beaver Valley Mall where he met Mr. Price and offered to purchase tennis shoes for him as

: payment for cocaine previously supplied by Mr. Price. The defendant attempted purchases

at two separate ret.ail locations using the victim's credit/debit card and was rejected. The

defendant advised that he had the information regarding the victim's credit/debit card, -1 I ! I I including the victim's personal identification number (P.I.N.) to access the account The

defendant related that he obtained the credit/debit card from the victim's purse located in

the kitchen of the residence. The detectives were unable to locate the victim's purse ln the

. kitchen of the home and subsequently found it in the victim's vehicle. Upon receiving this

information, the defendant informed the detectives that he had taken the credit/debit card

· , out of the victim's purse and placed the purse in the automobile. The defendant claimed to

have pennission from the victim to use the credit/debit card. Near the conclusion of the

interview, which lasted approximately one hour, the defendant stated to the detectives that

if they were going to arrest him for murder to do so. He further stated that "all I have to do

Is convince one person" that he did not commit the offense. The victim's purse.Wal-Mart

Identification card, driver's license, checkbook and cellular telephones were all located In

the victim's vehicle, which was in the possession of the defendant.

Prosecutors acquired the victim's bank records for the period from May 1, 2009,

through May 31, 2009, the telephone records of the defendant from May 8, 2009, through

May 14, 2009, and located various receipts for purchases and automatic teller machine

(ATM) withdrawals from the victim's account In the vehicles of the victim and Ms. Rankin

and in the trash bin at the Beaver Falls Motel. A summary of these records in chronological

order was outlined by Detective Chamberlain as follows:

May9,2009:

13 Circulated 10/29/2015 10:26 AM

1. 11:43 P.M. - Text message from defendant to Patrick Brown of a photograph of a $100.00 withdrawal from the victim's account, and indicating a balance of $29,712.14

! May 10, 2009:

1. 2:16:03 A.M. - $100.00 ATM withdrawal from ESB Bank, New Brighton 2. 2:16:22 AM. - $200.00 ATM withdrawal from ESB Bank, New Brighton 3. 2:17 AM. -Telephone call from defendant to Gregory Price 4. 7:31:13 AM. - $100.00 ATM rejected withdrawal, ESB Bank, New Brighton 5. 7:31:39 A.M. - ATM balance inquiry, ESB Bank, New Brighton, showing balance of $29,312.14 6. 7:31:57 AM. - $20.00 ATM rejected withdrawal, ESB Bank, New Brighton 7. 7:35:34 AM. - $102.50 ATM/Mac machine rejected withdrawal, Beaver Falls 8. 7:44:04 AM. - ATM rejected balance inquiry, ESB Bank, New Brighton 9. 7:44:16 A.M. - ATM rejected balance inquiry, ESB Bank, New Brighton 10. 7:44:29 A.M. - $100.00 ATM rejected withdrawal, ESB Bank, New Brighton 11. 7:44:39 AM. - $20.00 ATM rejected withdrawal, ESB Bank, New Brighton 12. 7:46:34 AM. - $100.00 ATM rejected withdrawal, ESB Bank, New Brighton· (defendant is displayed on video at the ATM machine) 13. 7:54:02 AM. - $102.00 ATM rejected withdrawal, BP, East Rochester

May 11, 2009:

• 1. 9:23 P.M. through 10:07 P.M. - Several text messages between defendant and Colleen Cantella, the defendant's girlfriend regarding the hockey game · 2. 9:54 P.M. - Telephone call from defendant to Gregory Price 3, 10:46 P.M. - Text message from defendant to Gregory Price stating "If I come with $200.00, can you do anything?" 4. 11:05 P.M. - Text message from defendant to Gregory Price stating "If I come with $200.00, can you do anything?" 5. 11: 19 P.M. - Text message from defendant to Patrick Brown stating "Can I come to you now?" 6, 11:33 P.M. - Text message from defendant to Patrick Brown stating "Can I come to you now?"

May 12, 2009:

1. 12:29 AM. - Telephone call from defendant to ESB Bank automated telephone number 2. 12:48AM. - Telephone call from defendant to Gregory Price 3. 12:55 A.M. - Purchase using the victim's credit/debit card at East Rochester GetGo for 99¢. 4. 12:55 A.M. • $10.00 gasoline purchase using victim's debit card at East Rochester GetGo

14 Circulated 10/29/2015 10:26 AM

5. 1:04:11 AM. - $200.00 ATM withdrawal, ESB Bank, New Brighton 6. 1:04:28 AM. - $200.00 ATM withdrawal, ESB Bank, New Brighton -7. 1:07 AM. - Telephone call from defendant to Gregory Price 8. . 3:15 AM. - Text message from Patrick Brown to defendant stating "Phone was dead, what's up" :9. 8:08 AM. - Telephone call from defendant to Gregory Price '10. 12:01:36 P.M. - $103.00 ATM withdrawal, Huntington Bank, Cranberry (defendant displayed alone in the victim's vehicle on video) 11. 12:02 P.M. - $103.00 ATM rejected withdrawal, Huntington Bank, Cranberry (defendant displayed alone in the victim's vehicle on video) ,12. 3:24 P.M. · $103.00 ATM rejected withdrawal, Huntington Bank, New Brighton (defendant displayed on video) i13. 3:25 P.M. - ATM balance inquiry, Huntington Bank, New Brighton, showing a balance of$28,689.42 (defendant displayed on video) .14. 6:33 P.M. • $75.00 ATM/Mac machine withdrawal, Beaver Falls 15. 6:51 P.M. - Purchase by defendant using victim's credit/debit card at Chippewa K· Mart in the amount of$83.59 (defendant displayed on video) 16. 7:06 P.M. - Purchase by defendant using victim's credit/debit card at Chippewa K- Mart in the amount of$79.48 (defendant displayed on video) 17. 7:09 P.M. - Purchase by defendant using victim's credit/debit card at Chippewa K- Mart in the amount of $105.77 (defendant displayed on video) 18. 7:24 P.M. - Text message from Patrick Drown to defendant stating "Phone was dead, what's up" . 19. 11:47 P.M. • $303.00 ATM rejected withdrawal, Beaver Falls (defendant displayed on video with victim's vehicle in background)

May 13, 2009:

1. 12:01 AM. - $303.00 ATM withdrawal, Beaver Falls · 2. 12:02 AM. -$203.00 ATM withdrawal, Beaver Falls 3. 12:02 A.M. - Six unanswered telephone calls from Robert Campbell to defendant 4. 12:12 AM. - Telephone call from defendant to Laura Rankin 5. 3:06:17 A.M. - $22.59 transaction at Sheetz, Beaver Falls 6. 4:11 A.M. - $101.50 Mac machine transaction, Beaver Falls 7. 4:14 A.M. • $5.69 Mac machine transaction, Beaver Falls (defendant displayed on video) 8. 5:03 AM. - Text message from defendant to Patrick Brown stating "Need 150" (meaning defendant needed $150.00 worth of crack cocaine) 9. 6: 10 AM. - $6.33 transaction at East Rochester GetGo 10. 6:18 AM. - Telephone call from defendant to Patrick Brown 11. 11:42 AM. - Text message from Patrick Drown to defendant stating "Still need it?" 12. 1:06 P.M. -Telephone call from Kelly Carter to defendant 13. 1:30 P.M. - Defendant attempts to cash victim's check at ESB Bank, Deaver Falls 14. 1:36 P.M. - Telephone call from Kelly Carter to defendant 15. 1:50 P.M. - $200.00 ATM rejected withdrawal, ESB Bank, New Brighton

15 Circulated 10/29/2015 10:26 AM

16. 1:51 P.M. - Balance inquiry, ESB Bank, New Brighton, showing balance of $27,872.06 17. 2:31 P.M. - Purchase by defendant using victim's credit/debit card at the Shoe Department, Beaver Valley Mall, in the amount of $69.99.

: In addition, Detective Chamberlain obtained documentation from Verizon Wireless

•· depicting the sites of cellular telephone towers in Beaver County from which he was able to

: confirm the approximate location of the defendant when he was using his cellular

; telephone. This Information, together with the known observations of the defendant from

. witnesses and video displays of the defendant at bank ATM and retail locations, placed the

· defendant in the area of the victim's residence during the hours when she would have been

killed and at the various locations at which he made ATM withdrawals and purchases using

. the victim's credit/debit card.

An examination of the defendant's blue jeans and tennis shoes under a blue light

revealed possible blood stains. Samples of the blood of the victim and the defendant,

•· together with the defendant's blue jeans, were delivered to the Pennsylvania State Police

Crime Laboratory for analysis. Jennifer Badger, a forensic scientist in the serology section,

• determined that two stains on the outside seam of the lower leg of the defendant's blue

jeans consisted of blood. She further detected the presence of blood on the eyelet of the toe

of the defendant's left athletic shoe, but the sample was insufficient for a confirmatory

testing for blood. In addition, examination of the handle of a steak knife found in the

kitchen sink of the victim's residence submitted to the crime laboratory disclosed evidence

of blood. Ms. Badger prepared samples of dried blood of the victim and the defendant and

swabs of the blood on the defendant's jeans, tennis shoes and the steak knife for

submission to the DNA section of the crime laboratory. Michael Biondi, a forensic scientist

supervisor in the DNA section, conducted DNA testing on the swabs of the defendant's blue

16 Circulated 10/29/2015 10:26 AM

jeans and determined that the blood on the jeans matched the victim's blood. The DNA

profiles of the victim and the defendant could not be excluded as potential contributors of

the blood stain from the defendant's shoe. The DNA profile of the victim was excluded as a

contributor as to the knife found In the kitchen sink, while the DNA profile of the defendant

could not be excluded as a contributor for the blood on the knife, because there also

appeared DNA types from two unidentified individuals.

Dr. James Smith, a forensic pathologist, determined that due to observing the

· greenish discoloration of the body, signifying the first sign of decomposition, the victim's

: death occurred within an 18-hour to 36-hour period between 3:00 A.M. and 9:00 P.M. on

: May 12, 2009. Dr. Smith opined that the cause of death was the stab wounds to the neck ·

· which Incised the right carotid artery and the right jugular vein. He noted a total of 46

. knife wounds, 34 of which were located in the left neck region. Dr. Smith further described

· defensive wounds on the victim's hands and fingers indicating that the victim attempted to

ward off her attacker. He testified that the concentration of the wounds in the neck area

was an indication the victim was held down and was struck w1th such force as to penetrate i

from the left through the right side of the neck. Dr. Smith estimated that the blade of the i- knife was approximately one-half inch in width and three inches in length. The manner of i .death was homicide.

James Sarver met the defendant on May 15, 2009, while both were inmates in the

Beaver County Jail. Mr. Sarver also was familiar with Mr. Campbell from whom he had I I purchased marijuana in the past Mr. Sarver related that the defendant admitted to him

that he had killed Ms. Grosskopf and intended to attempt to place blame on Mr. Campbell

for the crime. In a second conversation with Mr. Sarver, the defendant queried as to why

i ! 17 Circulated 10/29/2015 10:26 AM

I Mr. Campbell came to the victim's residence and removed the sheets on the bed revealing ·I the pool of blood. The defendant informed Mr. Sarver of the limit of $500.00 on the victim's

credit/debit card and confirmed that he went partying and shopping after the killing. Mr.

Sarver testified that he had previously been a visitor at the victim's residence, limited only I

1 · i to the main floor of the house.

Zack Valentine was the defendant's cellmate at the Beaver County Jail for

• approximately two weeks. On May 18, 2009, Mr. Valentine provided a statement to police

in which he indicated that he had become acquainted with the defendant prior to their

incarceration while working at Crow's Run Recycling. Mr. Valentine stated that the

defendant acknowledged that he had killed the victim, wrapped her in a blue blanket and

placed her body in the stairway to the attic between the two bedrooms in the victim's

residence. The defendant also outlined the layout of the house and provided a diagram

detailing the location of the bedrooms and the doorways from each bedroom to the attic.

The defendant further described the placement of a tan blanket covering the blood on the I ! . bed and complained that Mr. Campbell had pulled the blanket away exposing the blood. I

Mr. Valentine, who had never been to the residence, drew a diagram of the residence for

the police based upon the defendant's description. Mr. Valentine had been unaware of the I.

' homicide until his conversation with the defendant ' The defense presented evidence in an effort to place culpability for the crime on Mr.

Campbell by attempting to demonstrate that he had been physically abusive toward the

victim and that he had a financial motive for killing her.

Mr. Campbell testified that the victim called him shortly after he had moved out of

the house and into Ms. Babich's residence, indicating that she desired to title the home In

18 Circulated 10/29/2015 10:26 AM

both of their names. Ms. Babich, who was a mortgage processor and notary public,

. facilitated the transfer by having the deed prepared, notarizing Ms. Grosskopf's signature,

: recording the deed and paying the recording fee and transfer taxes, for which she was

: subsequently reimbursed.

Patricia Celeste, the next door neighbor and friend of the victim, observed a black

· eye on the victim on one occasion and her leg to be injured at a subsequent meeting, both

; injuries which the victim attributed to the defendant When Ms. Celeste confronted the

· defendant regarding the Incidents, he apologized for his actions. He further explained that

the black eye occurred when he became angry with the victim for refusing to eat dinner he

· had prepared and he had struck the victim with the food plate. The leg Injury resulted from

Mr. Campbell accidently pulling a loose kitchen cabinet from Its hinges causing it to strike

the victim.

Stacie Delp, Kristine Ramer and Nancy Pranskey, all co-workers of the victim, noted

black eyes on the victim, with Ms. Delp also observing the injured leg. Only Ms. Pranskey

testified that the victim told her that the injuries were inflicted by Mr. Campbell.

On the evening of May 9, 2009, while Mr. Campbell, his wife and his friend, Martin

Costanza, were patrons at Harvey Run Inn, a local tavern, Crystal Barnes, an employee,

overheard Mr. Campbell, following a telephone conversation, say loudly to his wife, "cha-

ching, cha-chlng". Ms. Barnes admitted to being unaware of the meaning of Mr. Campbell's

remarks.

Approximately two to three months following the victim's death, Mr. Campbell was

advised by correspondence from Wal-Mart, the victim's employer, that he was the

beneficiary of the victim's retirement account in the amount of$1,893.34 and life insurance

--··· .,. _ Circulated 10/29/2015 10:26 AM

benefits in the amount of $22,000.00. The victim had designated Mr. Campbell the

beneficiary as her common-law husband on June 27, 2005, approximately four years prior I

to her death. Mr. Campbell denied any knowledge that he was the victim's beneficiary prior

'to receiving notice from her employer. He, in fact; received the proceeds from both the

retirement account and the life Insurance as a result of Ms. Grosskopf's death.

Mr. Campbell also was the surviving joint tenant of the residence, and thus became

.sole owner following the victim's death. Testimony indicated that the balance of the

. mortgage was approximately $30,000.00 with the value of the home estimated at

. $10,000.00 due to its deteriorated condition.

In rebuttal, the Commonwealth introduced the medical records of the victim from

; Heritage Valley-Beaver Hospital for the period from 2004 through 2008, which revealed

• that she was treated on several occasions as a result of injuries sustained by falling.

As noted above, the defendant does not dispute that Ms. Grosskopf was murdered;

however, he alleges that the Commonwealth failed to sustain its burden of proving that he

• committed the crime. The thrust of the defense was that Mr. Campbell had the motive and

opportunity to kill the victim, since he would benefit financially by her death, and that he

had physically abused the victim in the past

B. Facts and Evidence Adduced at the PCRA Hearing Held on Au211st 4, 6 and a. 2014 .

1. Thomas Kurt Fuchel

As noted earlier, the Court conducted a hearing on defendant's Post Conviction

Relief Act (hereinafter PCRA) Petition on August 4, 6 and 8, 2014. The Court heard

testimony _during parts of each of those three days. Since defendant had the burden of

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proof, the defendant first called witnesses. Defendant first called Thomas Kurt Fuchel, Sr.,

Esquire, who was lead defense counsel at the trial. He was assisted by a new public

defender at that time named Rebecca Fields, who was not called to testify by either party at

the PCRA hearing. Fuchel first testified that it was protocol or procedure, at the time of the

Dennerleln trial, for an Assistant Public Defender to begin representation in a case at the

preliminary hearing stage and continue with the case through trial. Fuchel did that in this

case.

Fuchel testified that he handled the preliminary hearing. He testified that it was his

practice to speak with the client prior to the preliminary hearing in the lock-up facility. He

did not recall whether he met with the defendant before the preliminary hearing in this

case, but indicated that was his standard practice. Fuchel couldnot provide any specific

information as to when he met with the defendant He did admit that it was significant to

meet with the client early in the case to discuss strategy and to discuss what the defendant

did or did not do or know in connection with the charges.

Fuchel indicated that the Commonwealth provided extensive discovery. According

to Fuchel, defendant Dennerleln complained about not receiving discovery, and Fuchel

claims that this prompted him to make sure the defendant received the discovery. Fuchel

stated that he believed it was his decision regarding what portions of the discovery or

other information to use in this case. Fuchel claimed that he had discussions with

Dennerlein, both before and during trial, regarding what information to use. He conceded - /

that use of prior criminal convictions under Pa.R.Evld. §609 is a significant tool to impeach

witnesses for the opposing side.

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The first issue raised by defendant is the failure to use prior convictions and other

information for purposes of impeaching key Commonwealth witnesses. Counsel for

· Dennerlein at the PCRA hearing initially questioned Fuchel about a Commonwealth witness

: by the name of Laura Rankin. Rankin had, and testified to, information regarding defendant

: using the victim's credit/debit to make bank withdrawals. Fuchel testified that it was his

· theory that Robert Campbell, who was a former boyfriend of the victim, committed the

murder. Fuchel continued by stating that he believed that Rankin was actually a helpful

• witness to the defense because she also had information that the defendant used the

. victim's credit/debit card not only at and shortly after the time of the murder, but also

• prior to that time. Rankin also testified that defendant had the PIN for the credit card

further confirming. according to Fuchel, that her testimony would actually indicate that

· defendant did not just use the credit card after the murder, but also before the murder

showing his consented-to access to the card. Fuchel thought this was beneficial testimony

and pointed to Volume IV of the trial transcript, page 30, line 25, through page 341, lines 1·

· . 3. Defense counsel at the PCRA hearing pointed out and entered exhibits to confirm that

Rankin had convictions for retail theft, trademark counterfeiting and theft by unlawful

taking, all of which were crimes of crfmen falsi. The Commonwealth confirmed, on cross·

examination, that Fuchel did not want to impeach Rankin because she was actually

favorable to defendant's position In this case. However, defense counsel noted for the Court

that at Volume IV, page 341 of the trial transcript, Fuchel cross-examined Rankin about

using crack cocaine In the presence of her child, which was a form of impeachment, but yet

chose not to Impeach her credibility with crimes of crimen falsi.

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The second Commonwealth witness who had prior criminal convictions was

. Zachary Valentine. Valentine was defendant's cell mate at the Beaver County Jail, and

' Valentine testified at trial regarding defendant's admissions about his (defendant's)

involvement in the killing.

Fuchel testified that he discussed Valentine with Dennerlein, and according to

, Fuchel, defendant Dennerlein confirmed that some of the statements that Valentine made

, in a report of interview were true. Fuchel claims that he continuously cautioned Dennerlein

not to have conversations with Valentine. Dennerlein never admitted his guilt to Fuchel,

but, according to Fuchel, the defendant did confirm some of the things that Valentine said.

Interestingly and bewildering to the Court was Fuchel's concern about perjury if

defendant testified at trial because defendant allegedly said he was going to lie at trial

regarding the statements that Valentine made. This had very little, if anything, to do with

regard to why Fuchel did not cross-examine Valentine. When pressed by defense counsel at

the PCRA hearing, Fuchel confirmed that he must impeach this type of witness. Valentine

had a conviction for theft by deception, and another conviction in Fayette County. Fuchel

confirmed that he did not question Valentine about these matters, and Puchel Indicated

that it was inadvertent not to use them, that they must have slipped through the cracks and

that his decision not to use them was bad in hindsight

A third Commonwealth witness who testified against defendant was James Sarver.

Sarver was another jailhouse informant, who indicated that defendant admitted to the

killing. Sarver also had a conviction for terroristic threats. Although not a crimen falsi

crime, Sarver was on probation, and Fuchel could have questioned Sarver on whether he

expected any favorable treatment on a probation violation, which was never done. Fuchel

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did question Sarver about a simple assault charge that was dismissed, at Volume V, page

153, of the trial transcript Fuchel conceded that, in hindsight, he should have used the

terroristic threats probationary situation for cross-examination purposes at trial. Fuchel

could not explain his failure to use this Information.

A fourth Commonwealth witness who testified was Kelly Carter. Kelly Carter came

.· to the residence after the crime and was present when Robert Campbell, the person who

Fuchel Intended to pin blame on, saw blood on a dog at the residence and pointed this out

to Kelly Carter. Carter had a conviction for receiving stolen property, which Fuchel did not

use to cross-examine her. Fuchel indicated that he would normally Impeach this type of

witness, but did not do so in this case because he believed that Carter's testimony was

favorable to the defense in that it tended to implicate Campbell. i . The fifth Commonwealth witness was Brian Silberger. At trial, Silberger testified

that defendant Dcnnerlein purchased several thousand dollars of crack cocaine from him

(Silberger) at or around the time of the murder. Silherger further testified that when he

(Silberger) questioned Dennerlein concerning the whereabouts of the victim, Oennerfein

told him (Silberger) that the victim was In Maryland visiting her brother. (Trial Transcript,

Vol. IV, p. 247). Silberger had a conviction for burglary and a second conviction for theft by

unlawful taking. Both of these crimes were of a crimen falsi nature and Fuchel could not

recall why he did not use them for cross-examination purposes. I . The sixth Commonwealth witness was Patrick Brown. Brown· was the second '

witness to testify regarding defendant's drug purchases or attempts to purchase drugs at or

around the time of the homicide. (Trial Transcript, Vol. IV, p. 274). Brown conceded that he

was informed by the Commonwealth that he would not be charged for providing drugs to

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the defendant Fuchel questioned Brown regarding the fact that he would not be charged,

going to Brown's bias or motive to testify, but neglected to question him about two pending

cases and the potential for favorable treatment or leniency in those cases based on this

testimony. Fuchel confirmed that it would make sense to question the witness on these

issues, but added that he was not sure he knew about these charges. Fuchel conceded that

the use of such impeachment material could increase the chance of acquittal. -

The second issue raised by defendant in his PCRA petition was testimony that

revealed defendant's incarceration at the time of trial. Fuchel confirmed that a defense

lawyer usually attempts to preclude reference to the client being in jail. Fuchel noted,

however, that it was extremely difficult in this case because of others who testified

regarding admissions made by the defendant and who were in jail with him. Fuchel stated

that he did discuss this issue with the defendant and con finned that the reference to being

in jail was an Important issue.

Fuchel was pressed by present defense counsel, and Indicated that he thinks he

discussed this Issue in detail with the defendant, but was not sure. It was at this point that

Fuchel added that he had problems communicating with the defendant during trial and that

most of the problems for this lack of communication lie with the client (defendant).

According to Fuchel, he gave discovery to the defendant twice. He said he mailed the

discovery the first time, and defendant said he did not receive it This, according to Fuchel,

prompted him to go to the jail personally and deliver the discovery In the presence of the

Assistant Warden. Fuchel said there were two occasions at the jail when he had problems

with defendant Dennerleln.

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Fuchel testified that, at one of these two instances, the defendant became very

,physical and threw the public defender's paralegal, Dionna Steele, to the ground and went

, after Fuchel. Fuchel stated that Dennerlein became verbally abusive on a second occasion .

. He indicated that Dennerleln caused these disruptions.

As to the issue of defendant being in jail, Fuchel added that it was trial strategy for

. this information to come into evidence because Fuchel thought it would be helpful for the

jury to know that the individuals who were testifying were also in jail.

The Commonwealth brought out the fact that they objected when Fuchel went down

this road, and Fuchel asked for a sidebar with the Court at trial and confirmed that he

wanted this information before the jury. The Commonwealth stipulated that the

information came before the jury at the request of defendant with no objection or curative

Instruction requested.

Fuchel was also questioned regarding the third Issue raised by the defendant,

namely, whether Zachary Valentine was acting as an agent of the government when he was

debriefed by the Commonwealth and then placed back in the same cell with the defendant

Present defense counsel asserts that this gives rise to the basis for a motion to suppress the

statements made to Valentine on the basis that Valentine may have been acting as an agent

for the Commonwealth in securing admissions without Miranda warnings. Fuchel said he

did not know that Valentine was questioned and placed back in the same cell and never

considered this Issue or argument

The fourth issue was general failure to cross-examine witnesses. For example,

present defense counsel brought to Fuchel's attention that the Commonwealth only placed

into evidence bank records of the victim at or near the time of the homicide to establish

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that defendant was using the credit/debit card at that time and thereby establish a motive

for the killing. Present defense counsel pointed out that Fuchel neglected to use prior bank

records to indicate that defendant had used the credit/debit card well in advance of the

homicide. ·

2. Benjamin James Dennerlein

The defendant, Benjamin James Dennerleln, also testified at the PCRA hearing .

• Defendant Dennerlein was present throughout the hearing.

Dennerlein testified that Fuchel, with the assistance of another Assistant Public

• Defender, Beth Manifesto, handled his prellmlnary hearing on August 1, 2009. Dennerlein

testified that he never met with Fuchel prior to the preliminary hearing and that Fuchel

•· never came to the jail to see him and never spoke with him In the lock-up prior to the

: preliminary hearing. The first time that defendant Dennerlein actually met with, and saw,

Fuchel was in the courtroom when the preliminary hearing occurred.

The next step In the process was the arraignment In October of 2009. Defendant was

incarcerated between the time of the preliminary hearing and the arraignment, and

testified that he had no contact with Fuchel between the time of the preliminary hearing

and the arraignment

Dennerleln stated that a private investigator. for the public defender's office did

come to the jail in early 2010 to gather information and that Fuchel came to the jail later in

January of 2010 and several times between January of 2010 and the time of trial in July of

2010.

Dennerlein confirmed that paralegal Dionna Steele came to the jail several times to

meet with him, and on one occasion Fuchel was also present As to the Incident in which

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Fuchel claimed that Dennerlein became verbally abusive and physical, the defendant

. testified that Fuchel actually got in his face and that he (defendant) did not get physical

with Fuchel. Dennerleln stated that the incident got very loud and that a jail guard came

. into the room because of the noise. According to Dennerlein, Dionna Steele advised the

guard that the defendant did nothing wrong.

Dennerlein went on to state that, after his conviction in this case, he had to file his

own appeal because Fuchel neglected to timely file the appeal. No post-sentence motion

was filed. Fuchel requested several extensions to file a brief for the appeal, and the appeal

was eventually remanded to the trial court by the Superior Court because of this. Present

defense counsel was appointed and handled the appeal.

Defendant testified that throughout the trial, and early appeal proceedings,

defendant's mother was providing letters to Fuchel, which Fuchel failed to respond to.

: I Defendant filed his own PCRA petition in September of 2013 and present defense counsel

j filed a supplement In April, 2014.

The defendant did address specific comments and allegations raised by Fuchel. As to

the testimony of Zachary Valentine, defendant advised that Fuchel told him that Valentine

was going to testify that defendant confessed to Valentine and that this testimony may hurt

at trial. Defendant testified that he never said he would perjure himself. According to

defendant, he (defendant) requested that Fuchel cross-examine Valentine with

impeachment material, and Fuchel responded that he did not want to complicate the case.

Defendant was adamant about the fact that he pressed Fuchel to impeach Valentine.

As to Laura Rankin, defendant claims that he actually brought some of the crimen

Jalsi convictions to Fuchel's attention. Defendant testified that Fuchel never advised him

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(defendant) that he wouldn't use the Information against Rankin because she was

. favorable. Instead, defendant testified that Fuchel did not even know about Rankin's prior

: convictions until defendant brought them to his attention.

With regard to all of the Commonwealth witnesses who had prior convictions,

defendant testified that he was not aware that a corrupt and polluted source charge was in

order and that Fuchel never requested one. It was only after present defense counsel

, brought this to defendant's attention that he was aware of this.

As to the issue of defendant's incarceration being brought up at trial, defendant

. stated that Fuchel told him during trial that a deputy sheriff would mention that the

• defendant was in jail after a sidebar with the Court, but also stated that Robert Campbell

had already testified to It and therefore it would come In. According to defendant, Fuchel

never discussed this issue with him in advance or whether It was part of the trial strategy.

Defendant claimed that he knew it was not right for this information to come in because the

sheriff went to great lengths to keep the jury from seeing defendant being escorted to the

courtroom by deputy sheriffs in handcuffs and shackles during breaks in the trial.

,· Defendant testified that when it was time for the defense case to begin, defense

counsel called multiple witnesses in a brief period and then turned to him (defendant) and

said "you're next, but I suggest you not testify." Defendant contends that this is the only

time Fuchel discussed with him whether or not to testify.

With regard to the third issue, namely, Zachary Valentine potentially being an agent

of the government, Dennerlein testified Fuchel never discussed this issue with him. It came

to light that Valentine had testified for the Commonwealth in other cases and that neither

defendant nor Fuchel knew this.

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Dennerlein testified that he wrote a letter to the Trial Judge (Dohanich) regarding

failure to receive discovery. Dennerlein claims that Fuchel came to the jail angry after

receiving notice that Dennerlein wrote a letter to the Judge. Defendant claims that Puchel

came Into the cell, crumbled the letter, told him (defendant) never to write a letter to the

Judge again, told defendant that he (Fuchel) was going to trial with what information he

had, and told defendant that he (defendant) was going to burn. After this discourse, Fuchel

left the cell according to the defendant

With regard to the bank records, defendant was aware that the Commonwealth

wanted to focus on bank records for five days after the homicide. Defendant knew that all

of the bank records would show that he had made numerous withdrawals from the victim's

account for a long period of time prior to the incident Defendant claims that he kept

encouraging Fuchel to get the bank records and video surveillance of the ATM machine, but

Fuchel never looked into this matter, stating that it was too late.

3. R2bert Chamberlain The defendant also called Beaver County Detective Robert Chamberlain as a witness

at the PCRA hearing. Chamberlain was a co-affiant on the criminal charges filed against

Dennerlein, The Detectives' Bureau is part of the Beaver County District Attorney's Office.

Detective Chamberlain was questioned about the involvement of Zachary Valentine in this

case and his use as a witness by the Commonwealth. Chamberlain testified that he did not

know Zachary Valentine prior to the Dennerleln case. Chamberlain testified that he met

with Zachary Valentine twice during this case.

According to Chamberlain, Valentine · first came to the attention of the

Commonwealth when Valentine's wife called the District Attorney's Office and advised that

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a representative of the District Attorney should speak to Valentine regarding the

Dennerlein case. This caused the District Attorney's Office to request transport of Valentine

from the Beaver County Jail to the Beaver County Courthouse for questioning on May 18,

2009, prior to the trial in this case. Chamberlain advised that he secured all of Valentine's

. knowledge and Information in the interview of May 18, 2009 and had no intention of

speaking with him again short of requesting his testimony at the trial. Chamberlain did

• indicate that there eventually arose the need for a second meeting for the purpose of

. having Valentine draw a diagram of the crime scene. Chamberlain indicated that he did not

· know that Valentine had served as a witness for the Commonwealth in prior cases at the

. time he interviewed Valentine in 2009. Chamberlain learned this later through discussion

with another Beaver County Detective, Kim Clements. According to Chamberlain, Valentine

expressed fear of being In the same cell with the defendant, and Chamberlain testified that

he never told Valentine to keep his eyes and ears open about the case or to solicit any

further information from Dennerlein after the Initial Interview on May 18, 2009.

On cross-examination, Chamberlain testified that he was able to corroborate

Valentine's information given during the interview, In fact, Chamberlain stated that he left

the Interview room on several occasions during the Interview to check Valentine's

statement and was able to confirm what he was saying based upon review of phone records

and photos of the crime scene. Chamberlain was the final witness called by the defense.

4. Kim Clements The prosecution commenced its case on Friday, August 8, 2014. They first called

Detective Kim Clements. Clements testified regarding Zachary Valentine. She stated that

she knew Valentine as a result of his prior testimony for the Commonwealth in another

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homicide case. She did participate in the Valentine interview on May 18, 2009. Clements

testified that she played no part in arranging for Valentine to be Interviewed or in his

. involvement in this case. She confirmed that it was Valentine's wife who brought him to the

attention of the prosecution. Clements also confirmed that neither she nor anyone else

from the prosecution gave Valentine any instructions to pursue further information from

: the defendant or to act as an agent for the Commonwealth.

On cross-examination, Clements admitted that she believed Valentine may come ~ . back with some additional information after the first Interview, but she never instructed

· him to do so. Clements confirmed that there was a second interview of Valentine and also

stated that she was involved in his preparation for testimony at trial.

5. Eu(lene St. Clair The next Commonwealth witness was Chief Eugene St Clair of the Freedom Police

Department. St. Clair· is now the chief, but was a sergeant at the time of the Valentine

interview. St Clair was the co-affiant on the criminal charges with Detective Chamberlain.

St Clair indicated that he could not recall all of the details of the interview without

referring to his report and was permitted to do so. St Clair did recall that Valentine gave I . I specific information regarding Dennerlein's statement that coincided with evidence found

at the crime scene. St Clair also confirmed that he gave no instructions to Valentine to

solicit any additional information from Dennerlein. The one thing that St Clair testified to

that was inconsistent with Chamberlain and Clements was that St Clair's report raises the

inference that there were a number of interviews with Valentine. There are no other

specifics on dates of interviews. Also, there was additional information In St. Clair's report

that was not in the Chamberlain report, but no major inconsistencies. St Clair did not know

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: Valentine prior to the interview in question. St Clair indicated that he only interviewed

Valentine in the presence of Beaver County detectives, but did recall that he was involved

in interviews on more than one occasion.

6. Dionna Steek The final witness called by the Commonwealth was Dionna Steele, a paralegal In the

· Beaver County Public Defender's Office. This testimony was the most troubling for the

Court with regard to the PCRA hearing. Reference to Attorney Fuchel's testimony above

reflects that he testified to an Incident at the Beaver County Jail In which Fuchel claimed

that Dennerleln became hostile in an attorney interview room with Dionna Steele present.

Fuchel testified that Dennerlein pushed ~s. Steele to the ground and came after Fuchel, Ms.

Steele gave quite a different version of that event. She recalled that she took an envelope to

the jail from Attorney Fuchel to deliver to Dennerleln. She indicated that she had met with

Dennerlein on a number of occasions at the jail and never had a problem with him. On the

particular occasion when she took the envelope to the Jail for Attorney Fuchel, she was in

. the attorney meeting room with Dennerleln When Fuchel entered the room. She testified

that Fuchel began yelling at the defendant and the defendant began to yell back She

became frightened and stepped back, She actually pushed the emergency button In the

room because of the situation. She stated that Fuchel began to back up and actually backed

into her. Dennerleln thought she may fall and grabbed her arm to prevent her from falling.

Other than this, Steele testified that Dennerlein never touched her. A jail guard came Into

the room, and Steele told the guard that the defendant did not do anything wrong.

On both direct and cross-examination, Steele testified that it was Attorney Fuchel

who got into the defendant's face. She speclfically testified that the situation was escalated

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by Attorney Fuchel pounding on the table. She was startled by Attorney Fuchel's actions

and specifically recalled that he walked toward Dennerlein and got into his (Puchel's) face.

She said that Fuchel was within inches of Dennerlein's face. She stated that Fuchel was very

angry and was clearly the aggressor in this situation. According to Steele's testimony, the

relationship between the two was hostile from that point forward.

Defense counsel pressed Steele on cross-examination and was successful in getting

Steele to say that Dennerlein never gave her a problem throughout the time that she met

with him prior to trial. In fact, she stated that defendant Dennerleln was always respectful.

She stated that Dennerlein was very frustrated in her discussions with him about discovery

and the fact that he (Dennerlein) was not receiving anything from Fuchel. Steele stated that

she told the jail guard that the defendant did nothing wrong in the attorney meeting room

because she believed that and did not want to see Dennerlein receive sanctions at the jail.

The Court questioned Steele in an attempt to compare her testimony with that of

Fuchel, and she specifically undercut Fuchel's version of the events. This came from a

prosecution witness, who actually worked in the same office as Defense Trial Counsel

[Fuchel) at the time of the incident

ANALVSJS A. Claims Made by the Defendant The defendant's PCRA petition has raised four claims here. Those claims are as

follows:

1. That defense counsel failed to cross-examine witnesses on the basis of bias and prior criminal records of crimen falsi or otherwise;

2. That there was prejudicial error to the defendant in that there was a reference to defendant's Incarceration during the

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trial of this case placed into evidence by both defense counsel and the Commonwealth;

3. That defense counsel failed to file a motion to suppress due to alleged interrogation of Zachary Valentine, who was asserted to be a government agent; and

4. That defendant was denied the right to confrontation under the Pennsylvania and United States Constitutions on the basis of defense counsel's ineffective cross-examination.

These are the contentions that testimony and evidence was received on and are the issues

that will be addressed by the Court in the following subsections. 1

B. Applicable Law Defendant contends that his trial counsel rendered ineffective assistance and that he

is therefore entitled to either a new trial or dismissal of the charges against him. (mp. 2,

,r13 of defendant's Amended Petition for Post-Conviction Collateral Relief).

"It is well-established that counsel is presumed effective, and to rebut that

. presumption, the PCRA petitioner must demonstrate· that counsel's performance was

deficient and that such deficiency prejudiced him." Commonwealth v. Koehler, 36 A.3d 121,

132 (Pa. 2012) (citing Strickland v. Washington, 466 U.S. 668, 687-91, 104 S.Ct 2052,

_____ 80 L.Ed.2d 674, (1984). The Pennsylvania Supreme Court set forth a

three-part test .to determine whether a defendant has received ineffective assistance of

counsel, with those three parts being as follows: (1) the underlying legal issue has arguable

IDefendant raised other issues in bis original Petition, but these four issues are the only real issues pursued at the hearing other than some questions regarding the direct appeal, which are discussed i!J.frJ1.

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merit; (2) counsel's actions lacked an objective reasonable basis; and (3) the defendant was

prejudiced by counsel's act or omission. Koehler, 36 A.3d at 132 (clung Commonwealth v.

· Pierce, 515 Pa. 153, ___, 527 A2d 973, 975 (1987). The Court must analyze

defendant's four claims under these parameters.

C. Defendant's Claims 3 (That defense counsel failed to file a motion to suppress due to alleged Interrogation of Zachary Valentine, who was asserted to be a government agent) and 4 (A denial of the right to confrontation under the Pennsylvania and United States Constitutions on the basis of defense counsel's Ineffective cross·cxamtnatlon) Lack Merit Defendant's third claim asserts that counsel was ineffective for failure to file a

motion to suppress due to defendant's alleged interrogation, without Miranda warnings, by

a government agent Specifically, he asserts that his Fifth, Sixth and Fourteenth Amendment

rights under the United States Constitution were violated because Zachary Valentine was

acting as an agent for the CommonweaJth at the time that he had discussions with the

defendant about, and the defendant admitted to, the killing of the victim in this case.

Defendant goes on to contend that Valentine was transported to speak with the County

Detectives at the Beaver County Courthouse in May of 2009, and was thereafter sent back

to the jail, allegedly to further question the defendant and obtain admissions from him

without any Miranda warnings.

This claim was not established by the evidence adduced at the PCRA hearing. In fact,

to the contrary, the evidence established that Valentine was only questioned on one

occasion by the detectives, and the uncontradlcted testimony further· established that

Valentine was nm given any instructions to interrogate the defendant or to obtain any

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further admissions from him by the County detectives or police officers who interviewed

_ him. Without evidence to support this claim, it must be denied for lack of arguable merit

Also, defendant's fourth claim, namely that he was denied the right of effective

cross-examination of those witnesses testifying against him because of the lack of cross-

examination by defense counsel, must be denied for lack of merit The major issue raised by

defense counsel at the hearing in August, 2014 was that trial defense counsel failed to use

prior bank statements to cross-examine witnesses and establish that defendant had used

the victim's credit/debit card not only at our around the time of the homicide, but also in

advance of the same, thereby showing that defendant had consented-to access to the card.

The evidence of record establishes, through the testimony of Laura Rankin, that the

defendant was accorded the ability to place this matter before the jury by Rankin's I.

testimony that the defendant not only had access to the card, but also the PIN as stated in

the Facts section above (Trial Tr., Vol. IV, pp. 340·41). This issue, in the estimation of the

Court, does not arise to a meritorious claim based upon the evidence in the trial transcript I and the evidence adduced at the PCRA hearing.

D. Defendant's Second Claim (Alleged Improper Reference At Trial to Incarceration of Defendant) Must be Denied Because Defense Counsel had a Reasonable Strategic Basis for His Action In Admitting the Bvldence, and the ,1ahn Also Lacks Medt Defendant claims that he was prejudiced in this case by not only the admission of

evidence by the Commonwealth that he was incarcerated prior to and during the trial, but also

the fact that defendant's own counsel elicited this testimony through cross-examination of a

Commonwealth witness. In essence, defendant claims that not only was the evidence brought

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before the jury by testimony, but also that defense counsel did not request a curative instruction

. with regard to the testimony.

The trial transcript and the testimony of Attorney Fuchel at the PCRA hearing established

. that defense counsel asked Commonwealth witness Robert Campbell where he met the

defendant, and the response was that Campbell met the defendant while both were in jail. At the

PCRA hearing, as noted in the Facts section above, Fuchel testified that it was his trial strategy

. for this information to come into evidence because he thought it would be helpful for the jury to

know that Campbell, who was the individual that defense counsel hoped to pin blame on, had

been in jail in the past and, therefore, had a questionable background himself. The

Commonwealth stipulated, at the PCRA hearing, that this information came before the jury at the

request of the defendant with no objection or curative instruction requested. To the Court's

information and understanding, there was no reference as to why the defendant was in jail before

or during the trial. The only reference was to the fact that defendant was in jail.

"Generally, where matters of strategy and tactics are concerned, counsel's assistance is

deemed constitutionally effective if he chose a particular course that had some reasonable basis

designed to effectuate his client's interest" Commonwealth v, Howard, 553 Pa. 266, _

719 A.2d 233, 237 (1998). The Howard Court also noted that a claim for ineffective assistance

of counsel cannot succeed by simply comparing, by hindsight, the trial strategy employed with

alternatives not pursued. "A finding that a chosen strategy lacked a reasonable basis is not

warranted unless it can be concluded that an alternative not chosen offered a potential for success

substantially greater than the course actually pursued." Id.

In this case, the trial testimony not only included the references noted with regard to the

Campbell testimony noted above, but also included the testimony of Zachary Valentine, who was

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defendant's cell mate when admissions regarding the homicide and defendant's involvement in

the same were made .. Valentine's testimony clearly reflected that the admissions were made

while he and the defendant were incarcerated together. (Trial Tr. Vol. V, pp.160-16). This

reference was unavoidable in order to set the stage in which the admissions occurred. Again,

there was no reference to why the defendant was in jail.

Defense counsel made it clear that his strategy was to attempt to paint a sordid picture of

.· Commonwealth witnesses, such as Campbell and Valentine, by not only permitting references to

their past as prisoners when questioned by the Commonwealth, but also by bringing it out

himself when he questioned the witnesses. This trial strategy cannot be said to be unreasonable

under the circumstances.

Furthermore, the Pennsylvania Supreme Court decision in Commonwealth v. Johnson,

838 A.2d 663 (Pa. 2003) is instructive and warrants a determination that this claim lacks merit.

In Johnson, the Pennsylvania Supreme Court specifically stated that "although generally no

reference may be made at trial in a criminal case to a defendant's arrest or incarceration for a

previous crime ... there is no rule in Pennsylvania which prohibits reference to a defendant's

incarceration awaiting trial or arrest for the crimes charged." Id. at·680 (citation omitted). In

Johnson, the Supreme Court also cited Commonwealth v. Wilson, 538 Pa. 485, 506-07, 649 A.2d

435, 445-46 (1994) for the proposition that testimony indicating that the defendant was

incarcerated prior to trial was not improper where the jury could reasonably infer that the

defendant's incarceration was the result of the criminal acts for which the defendant was on trial.

In this case, although there was reference to the fact that defendant was in jail prior to trial, there

was no reference as to why he was in jail, which would give rise to the inference that the

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defendant was detained as a result of the case for which he was on trial and, therefore, proper

under Johnson and Wilson.

For these reasons, defendant's second claim roust be denied.

E. Defendant's First Claim (That Defense Counsel Was Ineffective for Failing to Cross-Examine Commonwealth Witnesses for Bias and Prior Criminal Records, Especially 0f Crim en Falsi} is Meritorious But Does Meet the Prejudice Threshold to Overturn the ~rdkt This issue was the most troubling to the Court in this case. It was abundantly clear

from defense counsel's testimony that he either completely neglected to cross-examine key

Commonwealth witnesses with regard to crimes of crtmen falsi that could affect their

credibility or that he simply did not take the time to discover that such information existed

for cross-examination purposes. Counsel (Fuchel) used such terms in his testimony as the ., prior convictions for crimes of crimen falsi with regard to Zachery Valentine may have

"slipped through the cracks": that in hindsight, "he should have used" the convictions of

crimen falsi to cross-examine James Sarver; that he could not recall why he did not cross-

examine Brian Silberger with his convictions for crimes of er/men falsi; and, most

importantly, his admission that the use of crimes of crimen fa/sl for cross-examination

purposes could increase the chance of acquittal "in a prosecution of this type." Defense

counsel's answers were Inexplicable. He consistently could not explain, in a rational

manner, why he did not question these witnesses with regard to these crimes or did not

know about the crimes so that he could use them in cross-examination.

Moreover, the Court was troubled by the stark contrast of the versions of the events

with regard to the meeting between Attorney Fuchel and defendant at the Beaver County

Jail prior to trial referenced in the Facts section above. Fuchelfrended that the defendant

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became hostile, attacked him and knocked his paralegal to the ground. The defendant

. contested this and gave a different version of the events. The defendant testified that

Fuchel was the instigator, that Fuchel got in his (defendant's) face and that he (defendant)

was merely trying to assist the paralegal who was knocked backward. When the

Commonwealth called the paralegal (Dionna Steele) to the stand during the PCRA hearing,

the Court was expecting to hear her confirm Fuchel's version of the events. Instead, she

confirmed, to the letter, the defendant's version of the events, specifically testifying that the

defendant grabbed her arm to prevent her from falling while Fuchel was clearly the

instigator. This paralegal described the relationship between Fuchel and the defendant

from that point forward as hostile. It must also be remember~d that the defendant had to

· file his own appeal after conviction, that attorney Fuchel missed filing deadlines with the

Superior Court, that new counsel had to be appointed to handle the appeal and the PCRA

because of Fuchel's negligence, and that the defendant actually filed his own PCRA petition.

All of these factors lead the Court to the conclusion that the first two prongs of the PCRA

burden of proof requirements are met by this claim, namely, first, that the underlying

argument has merit, and second, that counsel (Fuchel) had no reasonable strategic basis for

his action or inaction. This requires the Court to consider, for purposes of this claim, only

the third requirement, namely, whether the petitioner suffered prejudice because of

counsel's Ineffectiveness.

The Pennsylvania Supreme Court, in Commonwealth v. D'Amato, 579 Pa. 490,

--~ 856 A.2d 806, 812 n.S (2004), stated as follows:

The 'prejudice' prong. under the PCRA, is satisfied when the petitioner demonstrates that the alleged ineffectiveness so undermined the truth-determining process that no reliable

41 Circulated 10/29/2015 10:26 AM

adjudication of guilt or innocence could have taken place, see 42 Pa.C.S. §9543(a)(ii), in other words, that there is a reasonable probability that, but for counsel's act or omission, the outcome of the proceeding would have been different

See also, Commonwealth v. Miller, 819 A.2d 504, 517 (Pa. 2012); Commonwealth v. Tilley, 566

Pa 312, , 780 A.2d 649, 652 (2001); and Commonwealth v. Kimball, 555 Pa. 299, 312-

13, 724 A.2d 326, 333 (1999). Thus, the Court must determine, under this standard, whether

counsel's ineffectiveness so undermined the truth-determining process in this case that no r reliable adjudication of guilt or innocence could have taken place.

While defendant's claim docs have merit, it only relates to a portion of the

Commonwealth's case against him. The failure to cross-examine these witnesses, with regard to

prior convictions, relates only to admissions allegedly made by the defendant and his use of the

victim's credit/debit card for purposes of furthering his drug habit.2 If this was the extent of the

evidence against defendant, this claim would surely be meritorious and result in a new trial.

However, there was significant other evidence against the defendant that was not affected by this

lack of cross-examination ..

For example, there was testimony regarding defendant's statement to Beaver County

Detectives Patrick and Clements that is detailed at length at pages 11-13 of this Opinion. That

testimony reflects that defendant attempted to explain away his involvement in this matter and

provide quasi-alibi evidence to exonerate himself. The defendant specifically stated that he took

the victim to work on the night of the incident and then went back to pick her up, but she was not

at work. Video evidence from the victim's employer clearly showed that the victim never came

to work on that date. Defendant also stated that he was watching a hockey game with his

2 The Court also notes that even th.ough these matters were not covered in cross-examination of the witnesses, other matters were covered, such as the incarcerated status of some of the witnesses and drug selling or dependency status of others that cast them in an unfavorable light in the jury's eyes and thereby called !heir credibility into question.

42 Circulated 10/29/2015 10:26 AM

girlfriend at the victim's residence on the night in question. This portion of the statement was

directly contradicted by the girlfriend who denied that she ever went to the victim's residence on

that date.

Moreover, the Commonwealth presented records of A TM transactions and cellular

telephone calls, in chronologicaJ order, that are detailed at pages 13 through 16 of this Opinion.

· As stated at page 16 of this Opinion, this information, together with the known observations of

the defendant from witnesses and video displays of the defendant at bank, ATM and retail

locations, placed the defendant in the area of the victim's residence during the hours when she

would have been killed.

Most importantly, a DNA examination of blood found on the defendant's blue jeans

matched the victim's blood. That same DNA analysis could not exclude the blood of the victim

as a potential contributor to a blood stain found on the defendant's shoes and could not exclude

the defendant as a potential contributor of blood found on a knife in the kitchen, which was

apparently the murder weapon. Dr'. James Smith, a forensic pathologist, testified that the victim

. J died as a result of stab wounds to the neck .

This evidence, when coupled with an abundance of other circumstantial evidence recited

in the Facts section of this Opinion between pages 2 and 20, clearly overcomes any claim of

prejudice made by the defendant in this claim of his petition.3 The Court, in its discretion, does

1 The Court is cognizant of the fact that the record reflects that defendant filed his own appeal (Docket Entty No. 57); that after the appeal was tiled. defense counsel (/FucheO failed to file a brief on defendant's behalf and was admonished by the Pennsylvania Superior Court for failure to file said brief in an Order of June 23, 2011 and given 30 additional days to file the brief, but still failed to file a brief (Docket Entry No. 77); and that failure to file an appeal or an appellate brief constitutes abandonment of counsel and, therefore, per se, ineffectiveness. Commonwealth v. Brill, 83 A.2d 198, 203 (Pa. Super. 2013), clling Commonwealth v. Burkett, 5 A.3d 1260, 1277 (Pa. Super. 2010). However, Fuchcl was removed from the case and new counsel was appointed. This new counsel pursued the appeal with the Superior Court, filed a brief and requested allowance of appeal from the Pennsylvania Supreme Court, thereby alleviating the prejudice. Moreover, defendant alluded to the deficiencies on the last page (p. 44) of his original PCRA motion, but presented no evidence regarding this at the August, 2014 hearing other than to obtain an admission from Fuchel that be (Fuchel) failed to file the appellate brief.

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not believe that the alleged ineffectiveness by this issue, alone, so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could have taken place

and, therefore, denies the petition on the basis of this claim.

CONCLUSION For the foregoing reasons, defendant's PCRA Petition will be denied. An appropriate

Order will be entered.

BY THE COURT:

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