Com. v. Helmick, P.

• Court: Superior Court of Pennsylvania
• Decided: August 15, 2018
• Docket: 785 WDA 2017
• Status: Unpublished

Opinion

J-S25005-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : PAUL CHARLES HELMICK : : Appellant : No. 785 WDA 2017

Appeal from the PCRA Order April 25, 2017 In the Court of Common Pleas of Washington County Criminal Division at No(s): CP-63-CR-0000552-2012

BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 15, 2018

Appellant, Paul Charles Helmick, appeals pro se from the order entered

in the Washington County Court of Common Pleas, which denied his first

petition brought pursuant to the Post-Conviction Relief Act (“PCRA”).1 We

affirm.

In its opinions, the PCRA court fully and correctly set forth the relevant

facts and most of the procedural history of this case.2 Therefore, we have no

reason to restate them. We add that on April 18, 2017, Appellant responded

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546.

2On page 9, line 19, of the PCRA court’s Rule 907 notice opinion, the citation should be a full cite to Commonwealth v. Charles Pierce, 515 Pa. 153, 158, 527 A.2d 973, 975 (1987), to distinguish it from Commonwealth v. Michael Pierce, 567 Pa. 186, 203, 786 A.2d 203, 213 (2001), cited earlier on that page of the court’s opinion, which was later abrogated on other grounds by Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002). J-S25005-18

pro se to the PCRA court’s Pa.R.Crim.P. 907 notice. The PCRA court denied

PCRA relief on April 25, 2017. On May 25, 2017, Appellant timely filed a pro

se notice of appeal. The PCRA court did not order and Appellant did not file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b).

Appellant raises the following issues for our review:

1) WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO SECURE THE SERVICES OF A MEDICAL/FORENSIC EXPERT TO REVIEW THE VICTIM’S INJURIES AND BLOOD SPATTER EVIDENCE AND CALL AN EXPERT AT TRIAL AFTER THE TRIAL COURT HAD APPROVED THE RELEASE OF FUNDS FOR THAT PURPOSE?

2) WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO SEEK TO SUPPRESS AND/OR EXCLUDE OR OTHERWISE OBJECT TO THE COMMONWEALTH’S USE OF AN UNRELIABLE STATEMENT MADE BY [APPELLANT] WHILE HE WAS IN A HIGHLY INTOXICATED STATE THAT WAS EXPLOITED BY THE COMMONWEALTH AT TRIAL?

3) DID TRIAL COUNSEL PERFORM INEFFECTIVELY BY FAILING TO CALL OTHER FACT WITNESSES TO THE STAND PREVIOUSLY IDENTIFIED BY [APPELLANT] CAPABLE OF REFUTING THE LAY WITNESS TESTIMONY OFFERED BY THE COMMONWEALTH WITH REGARDS TO THE SERIOUSNESS OF [VICTIM’S] INJURIES AFTER THE ACCIDENT THAT WERE EXAGGERATED AT TRIAL TO NEGATE SERIOUS BODILY INJURY?

4) WAS TRIAL COUNSEL INEFFECTIVE FOR OBJECTING TO THE COMMONWEALTH’S REQUEST TO REMOVE JUROR #2 FOR CAUSE WITHOUT FIRST CONSULTING WITH [APPELLANT] AND INSISTING UPON VOIR DIRE OF THE JUROR IN A SEPARATE HEARING WHERE THE JUROR WAS INATTENTIVE THROUGHOUT THE ENTIRE TRIAL AND IGNORING EVIDENCE BEING PRESENTED?

5) DID TRIAL COUNSEL PERFORM INEFFECTIVELY BY

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FAILING TO OBJECT TO THE ADMISSION OF PRIOR BAD ACTS TESTIMONY FROM [VICTIM] AGAINST [APPELLANT] ABSENT A SUFFICIENT OFFER OF PROOF WHERE SAID ACTS WERE NEVER CRIMINALLY CHARGED?

6) WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO RECALL [APPELLANT], TAMMY SPROWLS AND JAMES HOBAN TO THE STAND IN SURREBUTTAL TO REFUTE [VICTIM’S] DAMAGING PRIOR BAD ACTS TESTIMONY DENYING [APPELLANT] HIS RIGHT TO TESTIFY IN HIS OWN DEFENSE AND A FAIR TRIAL?

7) WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO THE TRIAL COURT’S GIVING OF AN UNWARRANTED JURY CHARGE ON VOLUNTARY INTOXICATION WHERE A VOLUNTARY INTOXICATION DEFENSE WAS NOT PRESENTED AT TRIAL [APPELLANT] WAS PREVENTED BY THE COURT FROM USING INTOXICATION TO EXPLAIN THE MAKING OF AN UNRELIABLE STATEMENT?

8) IS THE ORDER OF APRIL 25, 2017[,] DENYING PCRA RELIEF WITHOUT A HEARING A FINAL ORDER WHERE NOT ALL ISSUES WERE ADDRESSED BY THE PCRA COURT?

(Appellant’s Brief at 4-5).

As a prefatory matter, “issues not raised in the [PCRA] court are waived

and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a);

Commonwealth v. Mason, 634 Pa. 359, 130 A.3d 601 (2015) (stating failure

to include issue in PCRA petition or in court-approved amendment to petition

constitutes waiver). Instantly, in his supplemental PCRA petition, Appellant

raised an issue of trial court error for giving a voluntary intoxication instruction

to the jury. In his appellate brief, however, Appellant styled issue seven under

the framework of ineffective assistance of counsel for failing to object to the

trial court’s jury instruction of voluntary intoxication. Therefore, this issue is

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waived because Appellant did not raise this distinct claim before the PCRA

court in the first instance. See id.

Our standard of review of the denial of a PCRA petition is limited to

examining whether the evidence of record supports the court’s determination

and whether its decision is free of legal error. Commonwealth v. Conway,

14 A.3d 101, 109 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795

(2011). This Court grants great deference to the findings of the PCRA court if

the record contains any support for those findings. Commonwealth v. Boyd,

923 A.2d 513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d

74 (2007). We give no such deference, however, to the court’s legal

conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super.

2012). Further, a petitioner is not entitled to a PCRA hearing as a matter of

right; the PCRA court can decline to hold a hearing if there is no genuine issue

concerning any material fact, the petitioner is not entitled to PCRA relief, and

no purpose would be served by any further proceedings. Commonwealth v.

Wah, 42 A.3d 335, 338 (Pa.Super. 2012); Pa.R.Crim.P. 907.

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinions of the Honorable Gary M.

Gilman, we conclude Appellant’s issues merit no relief. The PCRA court

opinions comprehensively discuss and properly dispose of the questions

presented. (See PCRA Court Rule 907 Order and Notice Opinion, filed March

8, 2017, at 10-18, 23) (finding: (1) (pgs 10-12) Appellant did not identify

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potential expert witness and rests his ineffective assistance claim solely on

speculation that such witness might have existed and opined favorably to

advance Appellant’s defense; Appellant’s bald assertion and speculation does

not constitute ineffective assistance of counsel; further, after colloquy,

Appellant voluntarily withdrew trial continuance request on July 9, 2012, with

knowledge that potential expert might not have time to review evidence

properly or testify at trial;3 (2) (pgs 15-16) Appellant’s own statement, “I

killed that bitch dead,” made on night of incident, falls under hearsay rule

exception of admission by party-opponent; Appellant would not have prevailed

on motion to suppress statement, and counsel cannot be ineffective for failing

to pursue meritless claim; (3) (pgs 12-15) regarding Appellant’s claim that

trial counsel failed to call Linda Barton, Tasha Garcia, Christy Garcia, and Ryan

Gallagher, police report indicated that all four witnesses heard Appellant

“beating on the door, but did not witness anything”; Appellant’s conjecture

that these potential witnesses would have offered favorable evidence to

defense does not merit relief; Appellant’s complaint that trial counsel failed to

call other witnesses cannot satisfy prejudice prong of ineffective assistance

3To the extent the PCRA court also discusses trial counsel’s “reasonable basis” regarding the forensic evidence admitted at trial, we decline to affirm on that ground, because the PCRA court did not hold an evidentiary hearing. See Commonwealth v. Hanible, 612 Pa. 183, 211, 30 A.3d 426, 442 (2011), cert. denied, 568 U.S. 1091, 133 S.Ct. 835, 184 L.Ed.2d 662 (2013) (stating PCRA court generally “should not glean from record whether counsel had a reasonable basis for his action or inaction absent evidentiary hearing).

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test because those witnesses were not eyewitnesses and Appellant cannot

show there is reasonable probability that their testimony would have changed

outcome of trial; (5-6) (pgs 17-18) Appellant employs hindsight analysis in

argument, which does not satisfy test for ineffective assistance of counsel;

Appellant discusses several instances where he believes counsel should have

objected or recalled witnesses, but Appellant does not demonstrate prejudice;

(8) (pg 23) Appellant did not raise any genuine issue of material fact in his

PCRA petition to warrant evidentiary hearing or PCRA relief). See also PCRA

Court Order and Opinion, filed April 25, 2017, at 2-3 (finding: (4) at trial,

Commonwealth moved to strike Juror #2 based on observations that Juror

was looking at ground throughout trial, did not make eye contact with

attorneys or witnesses, and generally appeared hostile; defense counsel

objected to Commonwealth’s motion based on counsel’s observations that

Juror had made eye contact and appeared attentive; defense counsel noted

that while Juror “seems somewhat on the hostile side…[d]efensively, it’s a

tactic that can work for me”; there was insufficient evidence to remove Juror;

trial court noted both attorneys accepted Juror through voir dire, and there

was no evidence of sleeping, dozing, or not paying attention to testimony;

Appellant’s ineffective assistance of counsel claim for this issue lacks arguable

merit). The record supports the PCRA court’s reasoning. Accordingly, we

affirm on the basis of the PCRA court opinions.

Appellant has also filed a motion to compel the preservation of all

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evidence in this criminal matter, pending the exhaustion of appellate

remedies. We grant Appellant’s motion for the preservation of evidence at

this time. Upon the resolution of all appeals, the Commonwealth can move

the trial court for permission to dispose of the preserved criminal evidence in

due course.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/15/2018

-7- Circulated 07/30/2018 01:51 PM

.. IN TBE COURT OF COMMON PLEAS QE WASRJNGIQN CQJINIY, PENNSYI VANIA CRIMINAL DIVISION

-__- .::

) � - :: COMMONWEALTH OF PENNSYLVANIA ) ) ) v. ) No. CR 552 - 2012 ) :::-��·. :,.[i y ) PAUL CHARLES HELMICK ) Defendant. ) )

ORDER and NOTICE

AND NOW, this 7th day of MARCH, 2017, upon consideration of the Motion to

Withdraw as Counsel, it is hereby ORDERED, ADJUDGED, and DECREED that the Motion is

GRANTED and it is further ORDERED that the appearance of Stephen Paul, Esq., on behalf of

the Defendant be withdrawn from the record in the above-captioned case.

It is further ORDERED that the Defendant is served notice of the Court's intention to

dismiss his Post-Conviction Relief Act Petition without a hearing because the Court agrees that

there are no genuine issues of material fact in the claims raised by the Defendant and said claims

do not entitle the Defendant to post-conviction collateral relief as further described below and in

the no-merit letter filed by his former court-appointed counsel, Stephen Paul, Esq.

It is further ORDERED that the Defendant's petition will be dismissed on April 6, 2017,

which is no less than 30 days from the date of this Order and Notice, in accordance with

Pennsylvania Rule of Criminal Procedure 907 unless the Defendant, either representing himself

or through privately retained legal counsel, responds to this Order and Notice demonstrating why the Court should not dismiss the Defendant's prose petition for relief under the Past-Caovictiao Relief Act.

This Court performed an independent review of the record and appointed counsel's

Turner/Finley letter. This court's reasoning regarding the issues the Defendant raised in his

PCRA petition is below.

Factual Background and Procedural History

The Superior Court has previously laid out the facts of this case in detail. Consequently,

this Court need not reinvent the wheel and will present the facts as the Superior Court did in its

Memorandum dated November 12, 2013.1

This case stems from the victim, Lori Phillips, being struck in the head with a - sledgehammer by the Defendant on the morning of January 29, 2012. The victim testified that her two-year relationship with the Defendant ended a few weeks before the incident occurred but stated that they remained friends. [Transcript of Jury Trial Held on July 17, 2012] at p. 34. She testified that the Defendant had asked to speak with the victim on a daily basis so he could hear her voice to help him get over the break up. Id. at p. 35.

The victim testified that on January 28, 2012 she invited the Defendant to her apartment after he called her upset over the break up. When the Defendant arrived, the victim's friend, Tammy Sprowls ("Sprowls"), was also at the apartment. Id. The victim could not recall how long the Defendant was there as she had experienced memory loss since the incident. Id at p. 36-37. However, she did remember instructing the Defendant and Sprowls to leave after the Defendant spilled vodka on her during an argument. The Defendant and Sprowls left after the victim threatened to call the police.

Louis "Louie" Phillips ("Louie"), the victim's ex-brother-in-law, visited her at the apartment around 5 :00 a.m. The Defendant and Sprowls then began repeatedly calling the victim. Id. at 39. Louie eventually quit answering the phone, but not before the Defendant told the victim "I know there is somebody up there, I'm going to kill you." Id. at 40. Soon after this phone call, the victim heard a loud vehicle in the parking lot which she thought sounded like the Defendant's pickup

I For consistency purposes, this Court has replaced the term "appellant" as used in the Superior Court's Memorandum dated November 12, 2013, 1600 WDA 2012, with the term "Defendant" in the above factual background. In addition, this Court notes that the 1925(a) opinion of the trial court at the time of the Defendant's direct appeal contains a lengthy and detailed recitation of the facts.

2 truck. She looked out the window of her apartment and saw the Defendant park his truck, exit the truck, and grab a sledgehammer while saying "I'm coming to get you." Id. at 41.

The Defendant made his way into the apartment building where he proceeded to strike the victim's apartment door with the sledgehammer. The victim testified that she remained in the middle of the entranceway that led up to her front door, and that she never got near the front door while the Defendant was hitting it with the sledgehammer. The Defendant broke the door down when the sledgehammer connected on its third hit. Id at p. 42. The last thing the victim remembers while being in her apartment was the Defendant standing in her front door after he broke it open. The next thing she remembered was waking up in a medical helicopter, feeling blood trickling down the back of her head, and hearing the flight medic say "You're not going to die on my shift.'' Id.

The victim was flown to UPMC Presbyterian Hospital where she remained for eleven days. She testified that her injuries were significant and consisted of a right side skull fracture, six staples in her head, trauma in the middle ear, calcium deposits in her ear due to broken bones, consistent ringing in her right ear, a cracked rib, and a blood clot in the left side of her head. She stayed at her mother's house for about two weeks after being released from the hospital. The victim still experiences dizzy spells, headaches, her jaw cracking, her ear feeling like it is full of cotton, and persistent ringing in her right ear. Id. at 43-44.

On cross-examination, the victim testified that she was with the Defendant and Sprowls the night before the injury drinking vodka mixed with Coke; the victim .drank about three glasses but was still aware of what was going on around her. The victim testified that she thought the incident may have been an "accident" due to the involvement of alcohol. Id at 49. The victim does not remember seeing a sledgehammer when the Defendant broke down the door, and may have turned around with the Defendant entered her apartment. Id at 50-51.

Trisha Church ("Church"), the victim's neighbor, also testified for the Commonwealth. Church recalled that she had previously seen the Defendant in the building. Id at 64-65. On the morning of January 29, 2012, she heard three or four loud bangs on the victim's front door accompanied by screaming. She recalled hearing someone say "I killed the bitch dead" right before she exited her apartment and entered the hallway. Id. at 66. She stayed with the victim until paramedics arrived. On cross-examination, she testified that she had told a state trooper that during the banging she heard a male voice say, "Where's Louie, I'm going to find him and kill him." Id. at 69.

Tara Whiteman ("Whiteman") lived directly across the hall from the victim. Whiteman testified that while sleeping on the night of January 29, 2012, she awoke to the sound of four very loud banging or pounding sounds about 30 feet from her bedroom. Id. at 75- 76. Whiteman left her bedroom and walked out into

3 the huj)dioe ha))wa.y where she saw the Oefeodaot, wba sbe bad koawu roast a£ her life, walk out of the victim's apartment with a sledgehammer and close the door slowly behind him. When Whiteman asked what he was doing, the Defendant responded, "I killed that bitch dead" as he proceeded to leave the apartment building. Id. at 78. Whiteman then pushed open the victim's door and found the victim lying face down at the end of an entryway in a pool of blood with her feet pointing towards the front door.

Photographs were taken of the dented front door, the stairwell leading up to the hallway, the broken dead bolt and door frame, a pool of blood on the floor toward the end of the entranceway, and blood spatter marks on the wall next to the pool of blood. The Defendant was apprehended and his truck was seized. The sledgehammer was found behind the seat. The Defendant's clothing and shoes were also placed into evidence and sent for DNA testing.

Video surveillance footage of the apartment complex was obtained and depicted the Defendant's truck, the Defendant carrying an object with a long handle, and the Defendant wearing clothing matching what was recovered from his person. The footage showed the Defendant walking on the sidewalk and going up the stairs which lead to the side door near the victim's apartment. Based on the video, the Defendant was in the building for 90 seconds; he was seen returning to his truck and placing something in his truck bed.

The Defendant testified on his own behalf. He detailed his romantic relationship with the victim and denied her characterization of their break up, averring that she lied about his request for daily telephone calls. Id at p. 206-07.[21 He characterized their relationship as "friends with benefits." [Id. at p. 237.] The Defendant averred that he had never laid a hand on the victim. [Id at p. 243.J

[The Defendant testified that] on Saturday, January 28th, he was at the victim's apartment drinking vodka with her and Sprowls until one or two in the morning. A verbal argument took place and the victim asked the Defendant and Sprowls to leave. Id. at p. 209-13. The Defendant and Sprowls left but continued drinking together; he testified that at this point he had been awake for 30 to 36 hours. The Defendant explained that phone calls with the victim and Louie ensued and they all began to argue. The Defendant alleged that Louie threatened to damage his truck by placing ball bearings in his gas tank. Id. at p. 218. The Defendant noted the problems he had with Louie in the past. Id at p. 214-17. The Defendant testified that his anger toward Louie motivated him to return to the victim's apartment in an effort to confront Louie and "smack him around a little bit." Id at p. 221.

2 This Court notes that the trial transcript contains a second cover page on page 19 8. This cover page marks the beginning of the defense's case and is titled "Jury Trial in the Above-Entitled Cause Before the Honorable Janet Moschetta Bell, Judge, Held on July 18, 2012 in Courtroom No. 6." For purposes of consistency and because of the continuous pagination, this Court references the trial transcript under the title of the first cover page--i. e., "Transcript ofJury Trial Held on July 17, 2012".

4 The Defendant went to the victim's apartment before noon on the 29th and took his sledgehammer with him in case Louie refused to come out of the apartment. The Defendant testified he only intended to use the sledgehammer to knock the door down, not as a weapon. The Defendant stated that he began to hit the door with the sledgehammer and yelling, "where the His Louie at ... where you at, b- i-t-c-h, where you at, where you at Louis .... " Id. at p. 223. When the door finally broke open, the Defendant recalled seeing the victim approximately three to four feet in front of him. He testified that he used the sledgehammer to "push her out of the way" with a shoving motion; the Defendant denied hitting her with the sledgehammer. Id. at p. 224. He claimed the victim was about three or four feet away from the door. The Defendant testified that he did not realize the victim was hurt. Id. at p. 228. After deciding Louie was not there, the Defendant left. The Defendant testified that when he saw Whiteman in the hallway he sarcastically told her, "I killed the bitch dead" in reference to Louie. Id. at p. 228-29.

On cross-examination, the Defendant stated that he did not know if Louie was still in the apartment when he began striking the door. When asked "did the sledgehammer make any contact with her?" the Defendant responded, "evidently it did, but I didn't realize it did." Id. at p. 234. After looking at one of the Commonwealth's exhibits, the Defendant agreed that the bloodstain in the entranceway is farther than three to four feet, the distance he claimed the victim was standing when he entered the apartment. Id. at p. 231-37. The Defendant described the incident as an "accident." Id. at p. 237-40.

The Commonwealth then called the victim in rebuttal. She testified that the Defendant's statement that he had never laid a hand on her was not true. She recalled that the Defendant had punched her in the face about a year earlier. She also recalled two separate occasions in 2011 when the Defendant poured beer over her head, once in the company of Sprowls. Id. at p. 278-81.

Following the jury trial, the Defendant was convicted of criminal attempt-homicide, two

counts of aggravated assault, and burglary. On October 10, 2012, he was sentenced to an

aggregate sentence of 15 to 30 years of incarceration. On October 11, 2012, the Defendant filed a

timely notice of appeal. The following issues were presented to the Superior Court for review:

1. Whether the Court erred/abused its discretion in not allowing the defense to call witnesses to rebut the testimony of the victim during cross-examination that the reason she told others the incident in question was an accident was because she felt alcohol had played a role?

5 2. Whether the Court erred/abused its dlscretiau in a))awiog the prnsecutiao ta ca]) tbe victim as a rebuttal witness to testify to specific instances in the past where the Defendant was physically violent towards her?

3. Whether the Defendant's sentence is reasonable in light of the circumstances?

On November 12, 2013, the Superior Court affirmed the trial court's judgment of sentence

finding the Defendant's first claim to be meritless and the second and third claims to be waived.

In response, on December 12, 2013, the Defendant filed a Petition for Allowance of Appeal from

the Order of the Superior Court. The Supreme Court denied that petition on June 2, 2014. The

Defendant filed a timely prose PCRA petition on December 26, 2014. On January 5, 2015, the

Washington Court of Common Pleas appointed Mary Bates, Esq. to represent the Defendant on

his first petition for post-conviction relief. On March 11, 2015, Stephen Paul, Esq. was appointed

to represent the Defendant thereby replacing Attorney Bates. On November 10, 2016, Attorney

Paul presented a motion to withdraw as counsel to this Court in conjunction with a Turner/Finley

letter. The Defendant submitted a pro se response to appointed counsel's motion and letter,

which the Court received on November 30, 2016.

Discussion of Law and Claims

The Defendant's PCRA petition is voluminous and contains a plethora of complaints.

After careful review, it appears to the Court that a large part of the 126-page petition consists of

a play-by-play appraisal of the trial by the Defendant. The Defendant examines the testimony of

each witness, provides his take on that testimony, points out what he perceives as flaws or holes

in the prosecution's case, asserts which facts are significant, discusses how those facts should

have been interpreted, and so forth. These observations do not present grounds for relief under

the PCRA. Subsumed within the Defendant's analysis, however, are claims of ineffective

6 'assistance of counsel for various actions or inactions of Thomas Cooke wba represented tbe

Defendant at trial. The Court will address these claims in turn.

The Defendant first raises a claim of ineffective assistance of trial counsel for failure to

obtain a forensic/medical expert.3 See Petition for Post-Conviction Collateral Relief from

criminal Conviction Pursuant to the Post-Conviction Relief Act, p. 71 (hereafter "PCRA

Petition"). The record reflects that prior to trial, Mr. Cooke filed a Petition to Retain Expert

Witness in which he requested funds to secure the services of a DNA expert to explore any

possible defenses. On May 24, 2012, Judge Janet Moschetta Bell signed an order authorizing Mr.

Cooke to retain a DNA expert as an expert witness for a fee not to exceed $1,500. No expert

witness was called on behalf of the Defendant at trial. Mr. Cooke has since passed away

rendering it impossible to directly gain his insights into the trial strategy regarding this issue. A

careful review of the record, however, reveals an Application for Continuance submitted by Mr.

Cooke which states the following:

And now, July 5, 2012, Defense Attorney, Thomas H. Cooke Esq. hereby requests a continuance as counsel asserts that the defendant has provided this office with numerous witnesses to interview before trial, medical data has not been received nor reviewed by defendant and possible experts and further DNA evidence has not been received and when received will take time to be reviewed by defense experts. Failure to exercise this aspect of legal representation for the defendant would be manifest injustice.

Beneath this request on the face of the continuance form, there is a handwritten notation: "7/9/12

withdrawn by defendant and counsel after colloquy on the record." The transcript of those

proceedings is illustrative. Mr. Cooke indicates that he had since been provided with the medical

reports that documented the nature of the victim's injuries and that he had reviewed them.

Transcript of Hearing on Commonwealth's Motion to Amend and Defendant's Motion for

3 The Court notes that the Defendant separates his first claim of ineffective assistance into three subsections, all of which concern obtaining and consulting with a forensic expert.

7 Continuance Held on July 9, 2012, gp. 2-3. Mr. Cooke then states that he does not have the DNA results and that his expert review might not come in due to timing. Id. at p. 4-5. In response to

the trial court's question about how long it would take for his expert to review the DNA results,

Mr. Cooke replied: "I'm not sure, because I'm not sure when-my expert is not available. We

would not be able to pick a jury and go to trial." Id. at p. 5. Knowing that the Commonwealth

had forensic evidence and that the defense's expert may not be available, the Defendant

indicated that he still wished to pick a jury on July 9, 2012 and go to trial.4 Id. at p. 4, 5.

Consequently, Mr. Cooke withdrew the motion for continuance. Id. at p. 5.

Notwithstanding the July 9, 2012 proceedings concerning withdrawal of his request for a

continuance, the Defendant claims in his PCRA petition that Mr. Cooke was ineffective for

failing to consult with and call a forensic expert at trial. The Defendant argues that a forensic

expert may have supported his defense that he accidentally struck the victim in the head with a

sledgehammer. According to the Defendant, "[h]ad Attorney Cooke consulted a forensic/medical

expert prior to trial, he would have been prepared to meaningfully challenge the

Commonwealth's version of events and cast doubt on the evidence presented." PCRA Petition, p.

75.

The PCRA provides relief to those individuals whose convictions or sentences resulted

from "[i]neffective assistance of counsel which, in the circumstances of the particular case, so

undermined the truth-determining process that no reliable adjudication of guilt or innocence

could have taken place." 42 Pa.C.S. § 9543(a)(2)(ii). The Pennsylvania Supreme Court "has

interpreted this to mean that in order to obtain relief on a claim alleging ineffective assistance of

counsel, a petitioner must prove that (1) the claim underlying the ineffectiveness claim has

4 This Court notes a trial court order dated June 7, 2012. In that order, the trial court states that a plea offer was made to the Defendant on the record. The Defendant rejected that offer and "specifically requested trial as soon as possible."

8 ar�uable' merit; (2) counsel's actions lacked any reasaoah)e basis; and (3) cmmseJ's actiaos resulted in prejudice to petitioner." Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009)

(citations omitted). "Where it is clear that a petitioner has failed to meet any of the three, distinct

prongs ... the claim may be disposed of on that basis alone, without a determination of whether

the other two prongs have been met." Commonwealth v. Steele, 961 A.2d 786, 797 (Pa. 2008).

"[T]he law presumes that counsel was effective and the burden of proving that this presumption

is false rests with the petitioner." Cox, 983 A.2d at 678.

"Prejudice in the context of ineffective assistance of counsel means demonstrating that

there is a reasonable probability that, but for counsel's error, the outcome of the proceeding

would have been different." Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001). "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 interests." Commonwealth v. Sneed, 45 A.3d 1096, 1107 (Pa. 2012) (citing

Commonwealth v. Colavita, 993 A.2d 874, 887). "A chosen strategy will not be found to have

lacked a reasonable basis unless it is proven 'that an alternative not chosen offered a potential for

success substantially greater than the course actually pursued."' Commonwealth v. Williams, 899

A.2d 1060, 1064 (Pa. 2.006) (quoting Commonwealth v. Howard, 719 A.2d 233, 237 (Pa. 1998)).

"The test is not whether other alternatives were more reasonable, employing a hindsight omitte�.-Put evaluation of the record."§erce, 527 A.2d at 975 (citations simply, a Defendant is

not entitled to relief merely because a chosen strategy is unsuccessful.

When an allegation of ineffectiveness is based upon counsel's failure to call a witness,

the petitioner must establish that: "(l) the witness existed; (2) the witness was available to testify

for the defense; (3) counsel knew of, or should have known of, the existence of the witness; (4)

9 th.e witness was willin� to testify for the defense; and (5) the absence afthe testimony oftbe witness was so prejudicial as to have denied the defendant a fair trial." Sneed, 45 A.3d at 1109.

This test pertains equally to expert witness testimony. Commonwealth v. Chmiel, 30 A.3d 1111

(Pa. 2011). "The mere failure to obtain an expert rebuttal witness is not ineffectiveness.

Appellant must demonstrate that an expert witness was available who would have offered

testimony designed to advance appellant's cause." Commonwealth v. Wayne, 720 A.2d 456, 470-

71 (Pa. 1998). "Trial counsel need not introduce expert testimony on his client's behalf if he is

able effectively to cross-examine prosecution witnesses and elicit helpful testimony.

Additionally, trial counsel will not be deemed ineffective for failing to call a medical, forensic,

or scientific expert merely to critically evaluate expert testimony [that] was presented by the

prosecution. Thus, the question becomes whether or not [ defense counsel] effectively cross-

examined [the Commonwealth's expert witness]." Chmiel, 30 A.3d at 1143 (quoting

Commonwealth v. Marinelli, 810 A.2d 1257, 1269 (Pa. 2002)).

In the present case, the Defendant acknowledges that he is unable to meet the above five-

prong test. See PCRA Petition, p. 87. The Defendant has failed to identify an expert witness and

rests his claim of ineffective assistance of counsel solely on speculation that such witness may

have existed and may have opined favorably to advance his defense. Without more to support the

Defendant's claim than bald assertions and speculation, we cannot find counsel's failure to call

an expert witness constitutes ineffective assistance. Further, the Defendant voluntarily withdrew

the continuance request on July 9, 2012 knowing that a defense expert may not have time to

review the evidence prior to trial and may not be available to testify. The Court finds it

contradictory to now claim ineffective assistance of counsel on these grounds.

10 Wi'th respect to the forensic evidence presented at trial-namely, the DNA analysis-the Court notes that finding the victim's blood on the sledgehammer and the Defendant's shoes

would be expected under the facts. The brief testimony of the Commonwealth's DNA expert,

Angela DiFiore, simply verified that the samples taken from the sledgehammer and the

Defendant's shoes matched the reference sample taken from the victim. As the Defendant points

out in his PCRA petition, the fact that he hit the victim in the head with a sledgehammer is not in

dispute. See id at p. 74; see also Petitioner's Response to PCRA Counsel's (Stephen Paul's)

Turner/Finley Letter and Motion to Withdraw as PCRA Counsel, p. 4 ("[T]he basis of the case is

not if Petitioner hit Lori Phillips with a sledgehammer or not. ... Petitioner freely admitted that he

struck Ms. Phillips."). Accordingly, the introduction of an additional DNA expert by Mr. Cooke

would have provided no beneficial testimony. Mr. Cooke did, however, press the Defendant's

defense through cross examination. See, e.g., Transcript of Jury Trial Held on July 17, 2012 at

pp. 131-32, 170, 181. Contrary to the Defendant's assertion and as apparent from cross

examination, Mr. Cooke did not depend solely on the Defendant's testimony. Moreover, a

review of the trial transcript reveals that much of the defense relied upon highlighting certain

forensic evidence not presented by the Commonwealth. For example, Mr. Cooke emphasized

that the Commonwealth did not introduce evidence of any blood spatter on the Defendant's shirt

or top of his shoes and that there had been no evidence of any tissue, skin, or hair on the

sledgehammer. See, e.g., id at pp. 129, 131-33, 181, 290-93. According to the defense, the

reason this evidence was not presented was because the blow to the victim's head was an

accidental glancing blow and not intentional. By not calling additional experts, Mr. Cooke

avoided duplicative testimony and furthered his client's defense by drawing attention to a lack of

11 ' forensics. In other words, this strategy had some reasonable basis designed to effectuate the

Defendant's interests.

In view of the above and considering that the Defendant did not meet his burden,the

Court finds the Defendant's first claim of ineffective assistance of counsel fails. The Court

reiterates that the law presumes that counsel was effective and that a Defendant is not entitled to

relief merely because a chosen strategy is unsuccessful.

Turning to the second claim, the Defendant's argument that Mr. Cooke was ineffective

for not "fully investigat[ingJ the facts and circumstances" of the case fails as being undeveloped.

See PCRA Petition, p. 78. The Defendant does not cite to anything in the record to support his

many allegations that Mr. Cooke was unprepared for trial. The Defendant likewise does not state

how these purported inactions prejudiced him such that there was a reasonable probability that

the outcome of the trial would have been different. In other words, the Defendant has failed to

set forth his claim pursuant to the three-prong test for establishing an ineffective assistance of

counsel claim. The Defendant only makes bald assertions that Mr. Cooke's investigation fell

below an objective standard ofreasonableness. Our Supreme Court has held that "boilerplate

allegations and bald assertions of no reasonable basis and/or ensuing prejudice cannot satisfy a

petitioner's burden to prove that counsel was ineffective." Commonwealth v. Paddy, 15 AJd

431, 443 (Pa. 2011). Thus, the Court has no basis on which to conclude that Mr. Cooke was

ineffective for failing to "fully investigate" the facts.

As part of his argument that Mr. Cooke was "grossly unprepared," the Defendant also

claims that Mr. Cooke did not investigate and interview witnesses. "Neglecting to call a witness

differs from failing to investigate a witness in a subtle but important way." Commonwealth v.

Stewart, 84 A.3d 701, 712 (Pa. Super. Ct. 2013). It can be unreasonable to conduct no

12 investigation into known witnesses Id Tmpnrtaotl,'. a petitioner sti11 roust demonstrate prejudice Id "To demonstrate prejudice where the allegation is the failure to interview a witness, the

petitioner must show that there is a reasonable probability that the testimony the witness would

have provided would have led to a different outcome at trial." Commonwealth v. Pander, 100

A.3d 626, 639 (Pa. Super. Ct. 2014) (citation omitted). In this respect, as explained by the

Superior Court, a failure to investigate and interview a witness claim overlaps with declining to

call a witness since the petitioner must prove: (1) the witness existed; (2) the witness was

available to testify; (3) counsel knew of, or should have known of, the existence of the witness;

(4) the witness was willing to testify; and (5) the absence of the testimony was so prejudicial as

to have denied the defendant a fair trial. Id (citation omitted).

The Defendant's claim regarding expert witnesses is repetitive and was addressed by the

Court above. With respect to the Commonwealth's witnesses, it appears that it is the Defendant's

position that trial counsel is responsible for interviewing every Commonwealth witness prior to

cross-examining him or her at trial. Similarly, the Defendant contends that Mr. Cooke should

have interviewed individuals that potentially could have been called as witnesses, but were not.

The Defendant, however, does i:iot support this position with any legal argument or citation. In

fact, our Supreme Court has stated that "we have never held that trial counsel is obligated to

interview every Commonwealth witness prior to trial." Commonwealth v. Washington, 927 A.2d

586, 5

prior to interview that a witness's testimony would be of no value or would damage the defense's

case. Commonwealth v. Smith, 416 A.2d 986, 987-88 (Pa. 1980). Here, the potential witnesses

identified by the Defendant-Linda Barton, Tasha Garcia, Christy Garcia, and Ryan Gallagher-

were presentin Whiteman's apartment on January 29, 2012. As set forth above, Whiteman lived

13 across the hall from the victim. According to the police report of the incident, which was drafted

by responding officer Trooper Brian Jordan and was provided to Mr. Cooke, all four individuals

heard the Defendant "beating on the door, but did not witness anything." Based on this, Mr.

Cooke could reasonably conclude that Linda Barton's, Tasha Garcia's, Christy Garcia's, and

Ryan Gallagher's testimony would be ofno value or would damage the defense's case. Indeed,

Whiteman' s testimony at trial bears this conclusion out-she testified that her friends "believed

that the man across the hall was beating up his girlfriend. "5 See Transcript of Jury Trial Held on

July 17, 2012 at p. 76. In any event, the Defendant's conjecture in his PCRA petition that the

potential witnesses did not disclose exculpatory information at the time of the police interview

because they simply did not like the police or perhaps were involved in some form of illegal

activity does not provide a basis for relief under the PCRA.

Finally, the Defendant asserts within his second claim of ineffective assistance that Mr.

Cooke failed to investigate and interview certain lay witnesses identified by the Defendant prior

to trial. The Defendant contends that Mr. Cooke's failure to investigate and interview these

witnesses is "apparent on the face of the record where, when preparing to sequester witnesses at

the start of the trial, Attorney Cooke had no idea who Mr. Helmick's witnesses were, as

evidenced by his own testimony." PCRA Petition, p. 83. The Defendant points to the following

statement made by Mr. Cooke: "Since my subpoenas are for tomorrow afternoon, they are all

family. I don't know who these people are." Id; see also Transcript of Jury Trial Held on July

17,2012atp.17.

The Defendant's reliance on Mr. Cooke's statement to establish ineffective assistance is

misplaced. When considered in context in the full conversation among the attorneys and the trial

s The Court notes that Mr. Cooke objected to Whiteman's statement as hearsay. The trial court sustained the objection and instructed the jurors not to consider what Whiteman said regarding statements made by her friends. Transcript of Jury Trial Held on July 17, 2012 at p. 76.

14 court, it establishes only that there was a crowd of people in the courtroom that were likely

family members who would not be testifying. Transcript of Jury Trial Held on July 17, 2012 at

pp. 17-18. Mr. Cooke's statement does not prove that he did not review or take into account the

information provided by the Defendant. Moreover, after an independent review of that

information, the Court finds that Mr. Cooke could have concluded prior to interviewing the

individuals on the Defendant's list that the proffered testimony would be of no value, would

damage the defense, or simply would not be admissible.6 See Appendix of Exhibits to PCRA

Petition, Exhibits A, B. In connection with this, the Court finds that the Defendant has not shown

prejudice. Stated differently, the Defendant has not shown that there is a reasonable probability

that the testimony each respective witness would have provided would have led to a different

outcome at trial. Considering that the Defendant did not meet his burden, the Court finds the

Defendant's second claim of ineffective assistance of counsel fails.

The Defendant next claims that Mr. Cooke should have filed a suppression motion

regarding the statement, "I killed that bitch dead," made by the Defendant at the scene of the

incident. See PCRA Petition, p. 88. The Defendant made the statement to Whiteman in response

to her asking him what he was doing as he walked out of the victim's apartment carrying the

sledgehammer. The statement was also heard by Church, the victim's neighbor.

The short answer to the Defendant's claim is that the Defendant's out of court statement

was an admission by a party-opponent, which is a settled exception to the hearsay rule. See

Pa.RE. 803(25); see also Commonwealth v. Edwards, 903 A.2d 1139 (Pa. 2006). Therefore, the

Court concludes that the Defendant has not established that he could have prevailed in a motion

to suppress the statement. Mr. Cooke did not provide ineffective assistance of counsel by failing

6 The Court notes that none of the witnesses identified by the Defendant were eyewitnesses. The Court also notes that Mr. Cooke issued ten subpoenas of which, seven were still active at the time of trial. Id at p. 202. Appended to the Defendant's PCRA petition as Exhibit B are affidavits of seven intended witnesses.

15 to file a suppression motion because the Defendant's su1wression claim would have been

meritless. See Commonwealth v. Luster, 71 A.3d 1029, 1052 (Pa. Super. Ct. 2013) (holding

counsel "cannot be found ineffective for failing to pursue [ aJ baseless suppression claim").

The Defendant's fourth claim of ineffective assistance of counsel revisits his argument

concerning lay witnesses identified by the Defendant, but not called at trial by Mr. Cooke. See

PCRA Petition, p. 89. Here, the Defendant focuses on witnesses that would have testified that

they observed the victim "functioning normally" after her release from the hospital. According to

the Defendant, had the jury been presented with testimony that the victim drove herself to the

trial and walked normally into court, they would have concluded that the victim had not

sustained serious bodily injury.

Section 2301 defines "serious bodily injury" as "[b Jodily injury which creates a

substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or

impairment of the function of any bodily member or organ." 18 Pa.C.S. § 2301. The paramedic

that responded at the time of the incident testified that the victim was flown by medical

helicopter to a trauma center rather than being transported by ground to the hospital because her

condition began to deteriorate and she was at substantial risk of death. Transcript of Jury Trial

Held on July 17, 2012 at p. 98. The victim testified that she remained in hospital for eleven days.

She also testified that her injuries consisted of a right side skull fracture, six staples in her head,

trauma in the middle ear, calcium deposits in her ear due to broken bones, consistent ringing in

her right ear, a cracked rib, and a blood clot in the left side of her head. Id. at p. 43. At the time

of trial, the victim still experienced dizzy spells, headaches, her jaw cracking, her ear feeling like

it is full of cotton, and persistent ringing in her right ear. Id at p. 44.

16 Based on this testimony, the Court finds it improbable that the jUQ' would conclude that

the victim had not suffered serious bodily injury merely because she had been observed by lay

persons "functioning normally" in the time span between being released from the hospital and

attending the trial. Assertions that the victim drove to trial and walked up and downhill on her

way into court does not negate that she was at substantial risk of death some six months prior.

Further, the proffered testimony of a lay witness observing the victim driving, waking, or

dancing does not disprove that the victim now suffers from memory loss after being struck by a

sledgehammer in the head. Moreover, the Defendant's own testimony belies his claim. On cross

examination, the prosecution asked the Defendant, "Would you agree that if someone were to be

hit over the head with a sledgehammer, that would put them at risk of death?" Id. at p. 241. The

Defendant responded, "Yeah. If it was done on purpose, certainly would. Even by accident, you

know." Id The Court concludes that the Defendant has not shown that the absence of the

testimony of the lay witnesses was so prejudicial as to have denied him a fair trial. Accordingly,

the Defendant's fourth claim of ineffective assistance of counsel fails.

Claims five through ten in the Defendant's PCRA petition involve assertions of

ineffective assistance of counsel that relate to trial strategy-not asking certain questions, not

making various objections including to the admittance of lab reports, not introducing "complete"

surveillance footage, and, again, not calling certain witnesses. See PCRA Petition, pp. 91-103.

The Defendant's argument throughout appears to employ a hindsight approach and does not

satisfy the ineffectiveness analysis required by Pennsylvania law. The Court reiterates that "an

evaluation of counsel's performance is highly deferential, and the reasonableness of counsel's

decisions cannot be based upon the distorting effects of hindsight." Commonwealth v. Rolan, 964

A.2d 398, 406 (Pa. Super. Ct. 2008) (quoting Commonwealth v. Basemore, 744 A.2d 717, 735

17 (Pa. 20b0)). Although the Defendant points out various instances where he believes Mr Cooke should have made an objection or should have recalled witnesses, the Defendant does not

demonstrate prejudice such that the outcome of the proceeding would have been different. To

illustrate this, the Defendant claims that Mr. Cooke was ineffective for failing to object to the

admittance of the lab report concerning fingerprint analysis of the sledgehammer. That lab

report, however, concludes that the technician did not find any fingerprints on the sledgehammer.

Accordingly, the Defendant was not prejudiced by the introduction of the report and an objection

to its introduction by Mr. Cooke would serve little purpose. After careful review of the PCRA

Petition and record, the Court finds that claims five through ten fail.

The Defendant next alleges that the prosecutor, Darren Newberry, committed misconduct

during trial and Mr. Cooke did not object. See PCRA Petition, p. 107. The Pennsylvania

Supreme Court in Commonwealth v. Tedford, 960 A.2d 1 (Pa. 2008), has outlined what a

defendant must prove to successfully raise an ineffectiveness claim for failure to object to a

prosecutor's comments. The court in Tedford stated, "ineffectiveness claims stemming from a

failure to object to a prosecutor's conduct may succeed when the petitioner demonstrates that the

prosecutor's actions violated a constitutionally or statutorily protected right, such as the Fifth

Amendment privilege against compulsory self-incrimination or the Sixth Amendment right to a

fair trial, or a constitutional interest such as due process." Tedford, 960 A.2d at 29. Additionally,

the prosecutorial misconduct must be of sufficient significance to result in the denial of the

petitioner's right to a fair trial. A prosecutor's comments will only be reversible error when the

comments effect is to unavoidably prejudice the jury, "forming in their minds a fixed bias and

hostility toward the defendant such that they could not weigh the evidence objectively and render

a fair verdict." Id. at 33. If a prosecutor's comments "are based on the evidence or proper

18 inferences therefrom, or represent mere oratorical flair," they are not objectjonab)e. Id; see also

Commonwealth v. Jones, 811 A.2d 994, 1006 (Pa. 2002). Counsel could properly determine a

comment did not require an objection if the jury is instructed that a prosecutor's comments are

not evidence. See Tedford, 960 A.2d 1.

Here, the Defendant lists six comments made by Mr. Newberry during his closing

argument that the Defendant claims misrepresented the evidence in violation of due process. The

Defendant argues that Mr. Cooke's failure to object permitted false facts to be considered by the

jury. The Defendant, however, does not address that the trial court instructed the jury during the

opening charge that the statements and/or questions of counsel are not evidence. Transcript of

Jury Trial Held on July 17, 2012 at p. 26. The jury also received the following detailed

instruction from the trial court during the final jury instructions:

Now, regarding the arguments of counsel, both Mr. Newberry and Mr. Cooke gave strong and thoughtful, cogent closing arguments, and you may consider them during your deliberations. However, the arguments of counsel are not part of the evidence and you should not consider them as such. However, in deciding the case, you should carefully consider the evidence in light of the various reasons and arguments that each lawyer made. It is the right and duty of each lawyer to discuss the evidence in a manner that is most favorable to the side he or she represents. You should be guided by each lawyer's arguments to the extent they are supported by the evidence and insofar as they aid you in applying your own reason and common sense. However, you are not required to accept the arguments of either lawyer. It is for you and you alone to decide the case based on the evidence as it was presented from the witness stand and in accordance with these instructions. Anything that counsel may have said in any opening statements or closing arguments or any personal opinions that may have been expressed, if they misstated · any facts or evidence or added any alleged facts not in evidence, you should disregard that, because it is your recollections, individually and collectively, that count and nothing else.

Transcript of Jury Trial Held on July 18, 2012 at pp. 34-35.

Based on the above instruction that the arguments of Mr. Newberry are not evidence, Mr. Cooke

could properly determine that the comments made during the prosecution's closing argument did

19 · not require an objection. Further, a review of the six comments identified b.y the Defendant

shows that all of the comments are based on the evidence or proper inferences therefrom. Mr.

Newberry is not required to discuss the evidence in a light most favorable to the Defendant. Nor

is Mr. Newberry required to highlight conflicting testimony. The Defendant has not

demonstrated how Mr. Newberry's discussion of the evidence in a manner favorable to the

prosecution resulted in the creation of "false facts" that unavoidably prejudiced the jury.

Accordingly, the Court finds that Mr. Cooke was not ineffective for not objecting and the

Defendant's eleventh claim fails.

The Defendant's twelfth and thirteenth claims are interrelated. The Defendant claims that

Mr. Cooke was ineffective for failing to object to a supplemental jury instruction on transferred

intent and for failing to object to the Defendant's absence when that instruction was given,

respectively. See PCRA Petition, pp. 110, 116. By way of further explanation, while the jury was

deliberating, the trial court received a question from the jury, "Question: Criminal Attempt-

Murder, does intent refer strictly to Lori Phillips or to anyone?" Transcript of Jury Trial Held on

July 17, 2012 at p. 316. The attorneys met with Judge Moschetta Bell in chambers to address the

question at which time Mr. Newberry requested that the jurors be instructed on transferred intent.

A discussion among the attorneys and Judge Moschetta Bell ensued concerning the propriety of

such an instruction. See Transcript of Excerpt of Jury Trial Held on July 18, 2012. A review of

the transcript of this discussion reveals that the jury returned a verdict prior to any response

being given to the jury's question. Id. at p. 23. As such, the Defendant's claims are moot.

The remaining claims in the Defendant's PCRA petition involve post-sentencing and

appellate issues. In his fourteenth claim, the Defendant asserts ineffective assistance of trial

counsel for failure to preserve issues for post-sentence motions or appellate review relating to the

20 djscretjon.ary aspects of the Defendant's sentence. See PCRA Petition, p, 117, In his fifteenth, and final, claim, the Defendant asserts ineffective assistance of post-trial counsel for failure to

timely consult with the Defendant post-sentence for purposes of challenging the discretionary

aspects of his sentence, failure to petition the court for funds to employ a forensic expert, failure

to file post-sentence motions concerning weight and/or sufficiency of the evidence, and failure to

preserve issues for appellate review related to the discretionary aspects of the Defendant's

sentence. Id. at p. 121.

The Court repeats that in order to be entitled to relief on these ineffectiveness claims, the

Defendant must prove the underlying claim is of arguable merit, counsel's performance lacked a

reasonable basis, and counsel's ineffectiveness caused him prejudice. Counsel will not be

ineffective for failing to preserve a baseless claim. Commonwealth v. Cotton, 487 A.2d 830 (Pa.

Super. Ct. 1984). To prevail upon a layered ineffectiveness claim, a defendant "must plead in his

PCRA petition that his prior counsel, whose alleged ineffectiveness is at issue, was ineffective

for failing to raise the claim that counsel who preceded him was ineffective in taking or omitting

some action." Commonwealth v. Reaves, 923 A.2d 1119, 1127 (Pa. 2007) (citation omitted).

Additionally, a defendant must present argument on the three prongs of the ineffectiveness test

as to each relevant layer of representation. Id

After careful review of the PCRA Petition and record, the Court finds that the Defendant

has not established that the underlying claims have merit or that he was prejudiced by trial

counsel or post-trial counsel-i.e., that but for trial counsel or post-trial counsel's failure to

preserve issues, there was a reasonable possibility that a new trial or new sentencing would have

been awarded. Although the Superior Court deemed the reasonableness of the Defendant's

sentence to be waived on direct appeal, the trial court addressed this issue on its merits in its

21 1·925(aJ. opinion. The trial court noted that the Defendant was sentenced within the standard

range of the guidelines. See 1925(a) Opinion, p. 21 (filed January 2, 2013). Further, the trial

court explained that in crafting the Defendant's sentence, the court reviewed the pre-sentence

investigation and highlighted many factors supporting the sentence. Id at p. 21-22. "An abuse of

discretion may not be found merely because an appellate court might have reached a different

conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or

ill-will, or such lack of support so as to be clearly erroneous." Commonwealth v. Moury, 992

A.2d 162, 169-70 (Pa. Super. Ct. 2010). In view of this, this Court finds that the Defendant's

underlying claim regarding the discretionary aspects of his sentence is without merit.

Consequently, counsel cannot be held ineffective for failing to preserve this sentencing issue.

Similarly, counsel cannot be held ineffective for failure to file various post-sentence

motions on grounds of sufficiency or weight or for failure to undertake certain actions to develop

such motions (i.e., petition the court for funds to obtain a forensic expert). The legal standards

regarding sufficiency and weight of the evidence are well settled. "[I)n evaluating a challenge to

the sufficiency of the evidence, [the trial court) must determine whether, viewing the evidence in

the light most favorable to the Commonwealth as verdict winner, together with all reasonable

inferences therefrom, the trier of fact could have found that each and every element of the crimes

charged was established by beyond a reasonable doubt." Commonwealth v. Little, 879 A.2d 293,

296-97 (Pa. Super. Ct. 2005). It is the fact finder's jurisdiction to determine the credibility of

witnesses and the weight to be accorded the evidence, and the fact finder is allowed to believe

all, part, or none of the evidence. Commonwealth v. Koehler, 914 A.2d 427, 436 (Pa. Super. Ct.

2006). Unless the evidence presented at trial is "so weak and inconclusive that, as a matter of

law, no probability of fact can be drawn fromthe combined circumstances," the verdict is not to

22 be.chan�ed on appeal. Commonwealth v Davis, 199 A 2d 860, 866 (Pa Super Ct 2002) (quoting Commonwealth v. Seibert, 622 A.2d 361, 363 (Pa. Super. Ct. 1993)). With respect to

weight of the evidence, a trial court may award a new trial on the basis that the verdict was

contrary to the weight of the evidence "only where the verdict is so contrary to the evidence as to

shock one's sense of justice and make the award of a new trial imperative." Commonwealth v.

Auker, 681 A.2d 1305, 1316 (Pa. 1996); see also Commonwealth v. Mason, 741 A.2d 708, 715

(Pa. 1999).

In the present case, the Defendant has not argued that the evidence presented at trial was

so weak and inconclusive that as a matter of law, no probability of fact can be drawn from the

combined circumstances. Nor has the Defendant argued that the verdict was so contrary to the

evidence as to shock one's sense of justice. Rather, it appears to be the Defendant's position that

a forensic expert may have assisted post-trial counsel to show that the evidence could possibly

have been interpreted by the jury more favorably after the fact. This position is without merit as

previously discussed. See infra pp. 8-12.

For the above-mentioned reasons, this Court finds that there are no genuine issues of

material fact in the claims raised by the Defendant and said claims do not entitle the Defendant

to post-conviction collateral relief.

BY THE COURT, {l

Date

23 Circulated 07/30/2018 01:51 PM

'· IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA ·')

CRIMINAL DIVISION

) COMMONWEALTH OF PENNSYLVANIA ) ) ) v. ) No. CR 552 - 2012 ) ) PAUL HELMICK ) Defendant. ) )

ORDER AND NOW, this 25th day of APRIL, 2017, after reviewing the Defendant's Response to

Pa.R.Crim.P. 907 Notice of Intent to Dismiss, it is hereby ORDERED, ADJUDGED, and

DECREED that the Defendant's PCRA is DISMISSED. Pursuant to Rule 910 of the

Pennsylvania Rules of Criminal Procedure, the Defendant has the right to file an appeal to the

Superior Court within thirty (30) days of this date of this order. The appeal must be filed with the

Washington County Clerk of Courts. PURSUANT TO RULE 908(E), THE DEFENDANT

SHALL BE SERVED WITH NOTICE OF THIS ORDER BY CERTIFIED MAIL, RETURN

RECEIPT REQUESTED.

This Court provided notice to the Defendant by way of an Order and Notice dated March

7, 2017 that it intended to dismiss the Defendant's PCRA petition without a hearing. The Court

found no genuine issues of material fact based upon the reasons set forth in the Order and �tice. �CJ !::: The Defendant filed a timely response to the Court's notice of intent to dismiss. T'i[Qourt"ti.nds"'' ·•"' §: ��::· ;�; j H that its March ih Order and Notice addresses the issues raised in both the Defehi}a,�.t's�Rf\�'·:·: O u

��:.:I:.i.sf s! C.) rrr:: :'l:;1·,;•,,_..,

:-0 --1 S? '\,.,.} pe,·-; 0 \D :fletiti�n and response. Consequently, the Court need not reiterate its reasoning in detail and will

address the Defendant's response in abridged fashion below solely with respect to Claim 7.

In Claim 7, the Defendant contends that he was "denied his right to the effective

assistance of counsel, right to be tried by twelve interested jurors, and due process of law ...

where trial counsel failed to object and seek the removal of Juror #2 for cause where the Juror

was not actively engaged in the proceedings throughout the trial and the Court refused to remove

the Juror on the motion made by the Commonwealth." See Petition for Post-Conviction

Collateral Relief from criminal Conviction Pursuant to the Post-Conviction Relief Act, p. 99.

During trial, the Commonwealth made a motion in chambers to strike Juror number 2 based on

observations that the Juror was looking at the ground throughout the trial, did not make eye

contact with the attorneys or witnesses, and generally appeared hostile. Transcript of Jury Trial

Held on July 17, 2012 at pp. 143-49. The Defendant's counsel, Mr. Cooke, objected to the

motion based on his observations that the Juror had made eye contact and appeared to be looking

and watching during the trial. Mr. Cooke noted that while the Juror "seems somewhat on the

hostile side ... (d]efensively, it's a tactic that can work for me." Id. at p. 145.

Rule 645 governs the seating and retention of alternate jurors. Pursuant to that rule,

"[a]ltemate jurors, in the order in which they are called, shall replace principal jurors who

become unable or disqualified to perform their duties." Pa.R.Crim.P 645(A). "The discharge of a

juror is within the sound discretion of the trial court. Absent a palpable abuse of that discretion,

the court's determination will not be reversed." Commonwealth v. Jacobs, 639 A.2d 786, 790

(Pa. 1994). The Pennsylvania Supreme Court has explained that "the exercise of this judgment

must be based upon a sufficient record of competent evidence to sustain removal."

Commonwealth v. Saxton, 353 A.2d 434, 442 (Pa. 1976). Here, the trial court found that there

2 ·vas not a sufficient record of competent evidence to sustain removal of Juror number 2. The trial I

court noted that the Juror was acceptable to both attorneys through voir dire and that "[t]here has

been no evidence presented or observed that she was sleeping, dozing or not paying attention to

testimony." Transcript of Jury Trial Held on July 17, 2012 at p. 201. Having reviewed the record,

this PCRA Court finds no competent evidence in the record to support the conclusion that Juror

number 2 was unable to perform as a juror. This Court reiterates that absent a palpable abuse of

its discretion, a trial court's determination regarding the discharge of a juror will not be reversed.

The Defendant has failed to prove that the claim underlying his ineffectiveness claim has

arguable merit and that trial counsel's actions lacked any reasonable basis. Accordingly, Claim 7

is denied.

CL� BY THE COURT,