J-A01007-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WALTER STANLEY REISS : : Appellant : No. 446 EDA 2022
Appeal from the PCRA Order Entered December 13, 2021 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0001288-2018
BEFORE: LAZARUS, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED JANUARY 24, 2023
Walter Stanley Reiss (Appellant) appeals from the order entered in the
Northampton County Court of Common Pleas, denying his first, timely Post
Conviction Relief Act1 (PCRA) petition. Appellant seeks relief from the
judgment of sentence imposed following his jury convictions of two counts of
arson.2 On appeal, he first claims the trial court erred in denying his request
for funds to retain a defense expert for trial, and that direct appeal counsel
was ineffective for not perfecting a direct appeal. We determine these two
issues are waived. Appellant also avers the PCRA court erred in denying relief
____________________________________________
1 42 Pa.C.S. §§ 9541-9545.
218 Pa.C.S. § 3301(a)(1)(i) (recklessly placing firefighter in danger of death or bodily injury), (c)(3) (collecting insurance). J-A01007-23
on his allegations trial counsel was ineffective for: (1) not requesting trial
continuance in order to review missing discovery; (2) not presenting evidence
of his financial situation, to rebut the Commonwealth’s theory that Appellant
had a financial motive to start the fire; (3) not presenting pre-fire photographs
depicting renovations to the property; and (4) not objecting to testimony that
was impermissible for a lay witness. We affirm.
I. Facts & Jury Trial
The PCRA court summarized the underlying facts as follows: Appellant
purchased “an older home” at 942 East Macada Road, Bethlehem,
Northampton County. PCRA Ct. Op., 12/13/21, at 3. Appellant intended to
perform, himself, extensive renovations, including “gutting the entire home,
relocating the bathroom and plumbing, re-wiring the home, [and] replacing
the plaster walls[,] ceilings, and . . . much of the flooring.” Id. Appellant, his
wife, and their young child lived in an apartment during the renovations. Id.
In the early morning hours of May 28, 2015, the Bethlehem Police
Department and Bethlehem Fire Department responded to a fire at Appellant’s
property.
When the police and fire department arrived, [Appellant] was the only person on the scene. [He was] in the . . . side yard[,] spraying the exterior wall with a garden hose. [Appellant’s] efforts were futile as the entire home was engulfed in flames, [and] flames could be seen coming out of the roof. [Firefighters went] inside the home to battle the fire. However, their actions were also futile. The home was completely destroyed by the fire.
* * *
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On the evening of the fire, [Appellant] told the police that he was the only person at the home. [Appellant] testified that he often remained at the home overnight, because of his devotion to the renovations. During the early morning hours, as [Appellant] watched television on a couch in the home’s first floor, [he] allegedly noticed the television flicker and believed [there was] an electrical interruption. In response, [Appellant] claimed[,] he exited the home to inspect the electrical transmission lines which were located behind his garage.
[Appellant] testified that he walked away from the home for only minutes, [and] he came back to find it engulfed in flames. In response, he called 911 and attempted to put out the fire with a garden hose.
By November 1, 2017, law enforcement filed the criminal charges [of two counts of arson] after having received several reports from fire investigators which concluded that the fire was set by human hand.
PCRA Ct. Op. at 3-4.
This case was initially assigned to the Honorable President Judge Michael
Koury. The trial court conducted a hearing on August 24, 2018 — 11 days
before trial — to address defense pre-trial motions, including Appellant’s
petition for in forma pauperis status so that the court would pay the $3,500
fee for a defense expert witness. See N.T., 8/24/18, at 5, 20. Appellant’s
attorney, Christopher Koschier, Esquire (Trial Counsel), was privately
retained, but he argued Appellant had expended his resources in defending
against the charges. Id. at 5. Appellant testified he previously worked as an
expert witness, in the field of amusement park accidents,3 but his employment
3 See N.T. Trial Vol. II, 9/5/18, at 180.
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“has been pretty much eliminated” because of his criminal charges, and
instead he was selling and buying items on eBay for profit.4 See id. at 11,
18. The trial court denied this motion. Id. at 21.
At this same hearing, the trial court also considered a defense discovery
motion. Bethlehem Deputy Fire Chief Craig Baer testified he had with him his
own files pertaining to this case, which had not been requested by nor given
to either party. N.T., 8/24/18, at 26-27. The court suggested the case could
be continued for several months, but after consultation with Appellant, Trial
Counsel stated they wished to proceed to trial as scheduled. Id. at 31, 33.
Five days later, on August 29, 2018, this case was reassigned to the
Honorable Stephen Baratta, and trial commenced six days thereafter, on
September 4th. See PCRA Ct. Op. at 2. Over the three-day jury trial, the
Commonwealth presented three expert witnesses: Deputy Fire Chief Baer; a
certified fire inspector; and a forensic electrical engineer and certified fire and
explosion inspector.5 The PCRA court summarized:
Deputy Chief Baer testified [that] his department vigorously fought the fire[.] In doing so, he opined[,] his firefighters were at risk of life. Fortunately, none were injured. In addition, he testified the fire’s origins were suspicious prompting an investigation concerning potential arson.
4Appellant also stated he “can’t leave [his] home without being on camera[,]” as he was “afraid of being targeted.” N.T., 8/24/18, at 18-19.
5 See N.T. Trial Vol. II, 9/5/18, at 76, 78-79.
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Arson was suspected for multiple reasons. First, the investigation found no evidence of an electrical origin. Second, the second and third floors/ceilings [were] cut [a]way against a side wall[,] creating a chimney-like route for the flames to quickly race [up] the three story home . . . to the exposed roof joists. Third, at the base of the hole on the first floor, [Appellant] had piled and stored flammable materials including discarded wood and mattresses.
Fourth, the portion of the floor on the first floor, where the flammable materials were stored, was completely burned away, indicating to the investigators that the missing (burned up) floor area was the origin of the fire. The investigators reasoned that given the burn patterns, the fire burned in an upward trajectory consuming the rest of the house and, with the exception of the point of origin, the rest of the wooden flooring on the first floor remained intact and was unconsumed by the fire.
Fifth, near the point of origin, the inspectors found a 5 gallon “Jerry can” of gasoline that was . . . about half full.[6] The can had no cap[.] Further, the can’s burn pattern indicated that the can was half full throughout the fire. There was much testimony about the missing gas cap and the fact that the can of gasoline, located close to the point of origin and in the center of a massive fire, did not ignite during the fire. The experts also testified that if a flammable liquid had been applied to the materials at the point of origin, it could not have been detectable because the floor and other flammable materials were completely consumed by the fire. Thus, the experts testified that they did not and could not test for the presence of flammable liquids at the point of origin.
The Commonwealth also presented evidence that [Appellant] had a financial motive to burn down his home to collect insurance proceeds.
The Commonwealth’s witnesses were cross-examined by [Appellant’s] trial counsel. Trial [C]ounsel’s theory was the cause of the fire was either an electrical short or other defect associated with an electrical socket . . . on the wall several feet away from ____________________________________________
6At the PCRA hearing, Appellant’s expert witness explained that a jerry can is a five-gallon steel can, commonly used to store gasoline. N.T., 8/9/21, at 14.
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the alleged point of origin[,] or a window air conditioner that was . . . plugged into that socket. [Trial C]ounsel also argued that the presence of . . . combustible materials . . . at the point of origin under the ceiling holes[ ] was an innocent by-product of the renovation. This alternate theory was vigorously argued through cross-examination with the experts and in . . . closing argument.
PCRA Ct. Op. at 5-7 (paragraph breaks added).
Appellant testified in his own defense, denying that he started the fire.
“Most of his cross-examination involved his renovation work and financial
status.” PCRA Ct. Op. at 7.
The jury found Appellant guilty of both counts of arson — risking the life
of a firefighter and collecting insurance proceeds. On October 19, 2018, the
trial court imposed an aggregate sentence of 33 to 72 months’ imprisonment.
The court also imposed restitution as follows: (1) $172,046.17 to Appellant’s
insurance company, State Farm; and (2) $13,761.25 to the Bethlehem Fire
Department.
Following a series of attorneys’ withdrawals and appointments,
Appellant filed a timely post-sentence motion while represented by privately
retained counsel, Gerald Stein, Esquire. See PCRA Ct. Op. at 8-9.
II. Direct Appeal
We review the ensuing, protracted procedural history in chronological
order. Attorney Stein filed a premature notice of appeal, before the post-
sentence motion was ruled on. See Pa.R.Crim.P. 720, cmt. (“No direct appeal
may be taken by a defendant while his or her post-sentence motion is
pending.”). On March 11, 2020, this Court quashed the appeal.
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Commonwealth v. Reiss, 856 EDA 2019 (unpub. memo.) (Pa. Super. Mar.
11, 2020), appeal discontinued, 197 MT 2020 (Pa. Sept. 28, 2020). Next, on
April 27th, Appellant filed a counseled untimely petition for allowance of
appeal with our Supreme Court.7
On June 3, 2020, the trial court entered a final order dismissing the
outstanding post-sentence motion. Meanwhile, Attorney Stein withdrew his
appearance, and the trial court appointed Tyree Blair, Esquire, to represent
Appellant. On August 17, 2020, the trial court conducted a hearing to
determine how Appellant wished to proceed. The court informed Appellant it
could reinstate his direct appeal rights, but following a colloquy, Appellant
stated he wished to “waive” his direct appeal rights and instead file a PCRA
petition. PCRA Ct. Op. at 7-9. On August 19th, the trial court issued an order
memorializing Appellant’s decision. We note that throughout this time, the
petition for allowance of appeal remained pending before our Supreme Court.
III. PCRA Proceedings
On September 23, 2020, Appellant filed a counseled PCRA petition,
which: (1) challenged the trial court’s denial of funds for a defense expert;
and (2) raised 13 separate claims of Trial Counsel’s ineffective assistance.
7The 30-day period for Appellant’s filing of a petition for allowance of appeal ended on April 10, 2020. See Pa.R.A.P. 1113(a).
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Five days later, on September 28th, Appellant filed a counseled praecipe with
our Supreme Court to discontinue his petition for allowance of appeal.
The PCRA court conducted evidentiary hearings on August 9 and 24,
2021.8 Appellant and Trial Counsel testified. Appellant also called an expert
in arson investigation, John Lentini, whom Appellant had previously desired to
retain as an expert witness for trial. Mr. Lentini testified as to his opinion why
three of the Commonwealth’s experts’ theories were wrong, but, as the PCRA
court points out, he did not offer his own opinion as to the cause or point of
origin of the fire. See N.T., 8/9/21, at 10; PCRA Ct. Op. at 14.
The PCRA court denied Appellant’s PCRA petition on December 13, 2021.
On December 23rd, Appellant filed a counseled motion for reconsideration,
which the court did not rule upon. The 30-day period to file a notice of appeal
ended on Wednesday, January 12, 2021. See Pa.R.A.P. 903(a).
Thereafter, on January 20, 2021, Appellant filed a counseled application
to reinstate his appeal rights nunc pro tunc. Appellant’s PCRA attorneys
acknowledged they mistakenly believed the motion for reconsideration would
toll Appellant’s appeal time, and argued “[t]his mistake should not be
attributed to [Appellant] and he was not correctly advised of his appeal rights.”
Appellant’s Application to Reinstate PCRA Appellate Rights Nunc Pro Tunc,
8At the PCRA hearings, Appellant was represented by Rory Driscole, Esquire, and John Waldron, Esquire. On appeal, he is currently represented by Michael Diamondstein, Esquire.
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1/20/21, at 1. The PCRA court permitted Appellant to appeal, 9 and he
complied with the subsequent order to file a Pa.R.A.P. 1925(b) statement of
errors complained of on appeal.10
IV. Timeliness of Appellant’s PCRA Petition
Preliminarily, we review the timeliness of Appellant’s September 23,
2020, PCRA petition.11 See Hipps, 274 A.3d at 1267 (“The PCRA time
9 A petition to reinstate an appeal, from the denial of a PCRA petition, shall be reviewed as a subsequent PCRA petition and is subject to the PCRA’s timeliness requirements. See Commonwealth v. Robinson, 837 A.2d 1157, 1163 (Pa. 2003). Here, Appellant’s application to reinstate his PCRA appeal rights did not invoke any of the timeliness exceptions. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Nevertheless, we note the application was promptly filed eight days after his 30-day appeal period ended, and the application averred the Commonwealth did not object to the requested relief.
The Pennsylvania Courts have held counsel’s “errors and omissions which preclude a petitioner from obtaining meaningful PCRA merits review constitute ineffective assistance of counsel per se[,]” and such per se ineffectiveness “can, in certain circumstances, satisfy the timeliness exception of section 9545(b)(1)(ii).” Commonwealth v. Hipps, 274 A.3d 1263, 1268 (Pa. Super. 2022), appeal denied, 2022 WL 17423236 (Pa. 2022). Under the circumstances presented, we conclude the PCRA court properly granted Appellant’s application to reinstate his PCRA appeal rights nunc pro tunc.
10 Subsequently, Appellant’s PCRA counsel, Attorneys Driscole and Waldron, filed an application with this Court to withdraw from representation, which was granted on April 25, 2022. Consistent with this Court’s order, the PCRA court conducted a hearing on May 12th and appointed Brian Monahan, Esquire, to represent Appellant. However, present, privately-retained counsel, Attorney Diamondstein, entered his appearance with this Court on June 23rd, and Attorney Monahan was permitted to withdraw.
11Although Appellant did not include the timeliness of the PCRA petition in his statement of questions involved, he addresses it as the first issue in his argument section. See Appellant’s Brief at 7-8, 13-14.
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limitations implicate our jurisdiction[.]”). On May 17, 2022, this Court issued
a per curiam rule to show cause to Appellant, observing the PCRA petition was
filed while his petition for allowance of appeal was still pending in the
Pennsylvania Supreme Court. See Commonwealth v. Leslie, 757 A.2d 984,
985 (Pa. Super. 2000) (“A PCRA petition may only be filed after an appellant
has waived or exhausted his direct appeal rights.”).
In his response, Appellant advanced various equity arguments why this
Court should overlook the “de minimis” five-day period between Attorney
Blair’s filing of the PCRA petition and subsequent withdrawal of the petition for
allowance of appeal. Meanwhile, we note, the PCRA court has opined
Appellant’s judgment of sentence became final when this Court quashed his
direct appeal, PCRA Ct. Op. at 17, and, alternatively, that the PCRA’s one-year
filing deadline began to run when Appellant withdrew his direct appeal. Order,
8/19/20. We conclude the PCRA petition was timely filed on different grounds.
See Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (citation
omitted) (“This Court may affirm a PCRA court’s decision on any grounds if
the record supports it.”).
The PCRA’s jurisdictional time “limitations are mandatory and
interpreted literally; thus, a court has no authority to extend filing periods
except as the statute permits.” Reed, 107 A.3d at 140 (citation omitted).
The PCRA provides that generally, a petition “shall be filed within one year of
the date the judgment becomes final[.]” 42 Pa.C.S. § 9545(b)(1). “[A]
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judgment becomes final at the conclusion of direct review, including
discretionary review in . . . the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3) (emphasis
added).
As stated above, following this Court’s quashal of Appellant’s attempted
direct appeal, the trial court entered an order on June 3, 2020, dismissing the
outstanding post-sentence motion. At that time, Appellant could have taken
a direct appeal but, as stated above, he elected not to. Pursuant to Section
9545(b)(3), we conclude Appellant’s judgment of sentence became final at
the expiration of the 30-day appeal period following the June 3rd denial of his
post-sentence motion — July 3rd. See 42 Pa.C.S. § 9545(b)(3). Appellant
then had one year, or until July 3, 2021, to file a PCRA petition. See 42
Pa.C.S. § 9545(b)(1). We thus conclude the September 23, 2020, PCRA
petition was timely filed, and the PCRA court had jurisdiction to review its
merits. See Hipps, 274 A.3d at 1267.
V. Statement of Questions Involved
Appellant presents seven issues for our review:
1. The PCRA Court erred when it did not find that the trial court erred when it denied [Appellant’s] requests for funds to hire an expert witness in fire investigation.
2. The PCRA court erred by not finding appellate counsel was ineffective for failing to perfect the direct appeal.
3. The PCRA Court erred in finding that counsel was not ineffective for failing to obtain a continuance of the trial date as evidence supports that trial counsel was unprepared.
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4. The PCRA Court erred by finding that trial counsel was not ineffective for failing to introduce evidence to refute the Commonwealth’s theory for motive as it pertained to [Appellant’s] financial status.
5. The PCRA Court erred by making a determination in its December 13, 2021 opinion which inaccurately purports that PCRA counsel did not introduce evidence of [Appellant’s] financial status which would undermine the Commonwealth’s motive for the arson, a finding which is clearly not supported by the record.
6. The PCRA court erred in finding that trial counsel was not ineffective for failing to obtain and introduce pictures of the progression of the home renovation, which would have refuted the theory set forth by the Commonwealth that the holes were cut into the ceiling to intentionally create a chimney effect, thereby allowing the fire to spread. . . .
7. The PCRA Court erred in concluding that counsel was not ineffective for failing to rebut the testimony of Detective Beebe.
Appellant’s Brief at 7-8.12
VI. Standard of Review & Law for Ineffective Assistance Claims
At this juncture, we note the relevant standard of review:
In reviewing the grant or denial of PCRA relief, an appellate court considers whether the PCRA court’s conclusions are supported by the record and free of legal error. . . . A PCRA court passes on witness credibility at PCRA hearings, and its credibility determinations should be provided great deference by reviewing courts. . . .
Commonwealth v. Flor, 259 A.3d 891, 910 (Pa. 2021) (citations & quotation
marks omitted).
12 We have reordered Appellant’s issues for ease of discussion.
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Our Supreme Court has explained:
To prevail on a claim of ineffective assistance of counsel, a petitioner must overcome the presumption that counsel is effective by establishing all of the following three elements[:] (1) the underlying legal claim has arguable merit; (2) counsel had no reasonable basis for his or her action or inaction; and (3) the petitioner suffered prejudice because of counsel's ineffectiveness.
With regard to the second, reasonable basis prong, “we do not question whether there were other more logical courses of action which counsel could have pursued; rather, we must examine whether counsel’s decisions had any reasonable basis.” We will conclude that counsel's chosen strategy lacked a reasonable basis only if Appellant proves that “an alternative not chosen offered a potential for success substantially greater than the course actually pursued.”
To establish the third, prejudice prong, the petitioner must show that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel’s ineffectiveness.
Commonwealth v. Chmiel, 30 A.3d 1111, 1127-28 (Pa. 2011) (citations
omitted & paragraph breaks added). “A failure to satisfy any of the three
prongs of [the above] test requires rejection of a claim of ineffective
assistance of trial counsel[.]” Id. at 1128 (citation omitted).
VII. Trial Court’s Denial of Funds for Defense Expert
In his first issue, Appellant avers the PCRA court erred in denying relief
on his claim that the trial court should have granted his pre-trial request for
funds to retain an expert witness.13 Appellant’s Brief at 14, 16. Appellant
13 Appellant does not raise a claim that Trial Counsel was ineffective for not retaining an expert witness.
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contends that if his proposed expert, John Lentini, had testified at trial, he
could have undermined the opinions of the Commonwealth’s three experts.
Id. at 17-18. Specifically, Lentini would have testified: “the air conditioning
was erroneously ruled out as a cause of the fire[;] much of the logic supporting
the [Commonwealth’s] investigator’s conclusions was faulty[,]” and the plastic
cap, on the gasoline can, was likely consumed during the fire. Id. at 18.
Appellant concludes his due process rights were violated because “his ability
to defend himself at trial was severely compromised.” Id. at 21. We conclude
this issue is waived.
To be eligible for PCRA relief, a petitioner must establish his allegations
have not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). “[A]n
issue is waived if the petitioner could have raised it but failed to do so before
trial, at trial, during unitary review, on appeal or in a prior state postconviction
proceeding.” 42 Pa.C.S. § 9544(b). Appellant’s present claim is one of trial
court error. He could have raised it on direct appeal, but he elected to forego
his direct appeal rights. Accordingly, the issue is waived for PCRA review.
See 42 Pa.C.S. § 9543(a)(3).
VIII. Direct Appeal Counsel’s Alleged Ineffectiveness for
Not Perfecting a Direct Appeal
In his second issue, Appellant avers Attorney Stein was ineffective for
failing to perfect a direct appeal, where Appellant had initially requested him
to do so. See Appellant’s Brief at 40-41. Appellant recounts that Attorney
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Stein filed a premature notice of appeal, as his post-sentence motion was still
pending. Appellant acknowledges the PCRA court’s reasoning that because he
was in fact provided the opportunity to file a nunc pro tunc direct appeal, this
issue is waived. Appellant nevertheless contends this conduct by counsel
“illustrate[s] the smorgasbord of poor lawyering to which he was subjected.”
Id. at 40 n.12. We agree this issue is waived.
As stated above, the trial court held a hearing especially to determine
how Appellant wished to proceed following this Court’s quashal of his direct
appeal. The court advised Appellant it could reinstate his direct appeal rights,
but Appellant, represented by counsel and having been colloquied, asserted
his desire to forego a direct appeal. N.T., 8/17/20, at 4, 7-8. Presently on
appeal, Appellant advances no argument that he misunderstood or that at any
time he informed his counsel that he changed his mind. Furthermore, as the
PCRA court points out — and Appellant does not dispute — no record was
made at the PCRA hearing regarding Attorney Stein’s alleged ineffectiveness.
See PCRA Ct. Op. at 44. Accordingly, this issue is waived. See Pa.R.A.P.
302(a) (“Issues not raised in the trial court are waived and cannot be raised
for the first time on appeal.”). We now turn to Appellant’s multiple allegations
of Trial Counsel’s ineffectiveness.
IX. Trial Counsel’s Alleged Ineffectiveness for Not Continuing Trial
Next, Appellant asserts the PCRA court erred in denying relief on his
claim that Trial Counsel was ineffective for not accepting the trial court’s offer
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of a continuance. Appellant’s Brief at 23. By way of background, we
summarize the following: at the August 24, 2018, pre-trial hearing, Deputy
Fire Chief Baer stated he had not been requested to provide, and had not
provided, the entirety of his own files to the Commonwealth or defense. N.T.,
8/24/18, at 26-27. These files, comprised of “thousands” of pages, included
his own “origin and cause report” and State Farm’s “complete investigative
packet.” Id. Trial Counsel argued the Commonwealth should have learned
of these files “through reasonable investigation” and provided them in
discovery. Id. at 29-30.
The trial court suggested the case could be continued to February 2019,
so that the parties could exchange outstanding discovery, and Appellant could
relitigate any discovery claims, possibly in October 2019. See N.T., 8/24/18,
at 31. Trial Counsel argued the delay should be chargeable to the
Commonwealth for Pa.R.Crim.P. 60014 purposes, but the Commonwealth
objected. Id. at 32. Following a private discussion with Appellant, Trial
Counsel advised the court, “[Appellant] has indicated . . . that he would like
to proceed [to trial] on September 4th.” Id. at 33. After further discussion,
the trial court asked Appellant why he wished to go to trial as scheduled. Id.
at 40. Appellant replied, “I just want to get it out of the way.” Id.
14 See Pa.R.Crim.P. 600(A)(2)(a) (“Trial . . . shall commence within 365 days from the date on which the complaint is filed.”).
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On appeal, Appellant acknowledges that at that pre-trial hearing, Trial
Counsel discussed this issue with him, but insists “the record does not indicate
what was said.” Appellant’s Brief at 24. Appellant claims Trial Counsel was
ineffective for not agreeing to a continuance, so that he could review the large
amount of information possessed by Deputy Fire Chief Baer. Id. at 27-28.
Appellant recounts this file included an origin and cause report and an
electrical engineering report, both important to the question of whether the
fire was accidental or intentionally set. Id. at 27. We conclude no relief is
due.
In denying relief, the PCRA court weighed the testimony presented at
the PCRA hearing: Appellant stated that Trial Counsel told him, at the time of
the pre-trial hearing, “[W]e’ll go to trial next week without any real
preparation.” PCRA Ct. Op.at 26, quoting N.T., 8/9/21, at 106. Appellant
further testified, “[I]f Judge Koury was going to offer [a continuance to]
February, we should have taken” it. PCRA Ct. Op. at 26, quoting N.T., 8/9/21,
at 106. Trial Counsel, however, testified that he spoke extensively with
Appellant about: the importance of hiring an expert; “the pros and cons of . . .
a continuance[;]” Appellant’s financial resources; and Appellant’s desire “to
proceed ‘expeditiously’ and that ‘there was no possible way he could come up
with the funds to hire an expert because he had no income.’” PCRA Ct. Op.
at 27, citing N.T., 8/24/21, at 27, 31. Trial Counsel stated it was Appellant’s
decision, following these discussions, to go to trial as scheduled. PCRA Ct.
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Op. at 27, citing N.T., 8/24/21, at 32. The court found Trial Counsel credible
and Appellant not credible. See PCRA Ct. Op. at 29, 41.
Appellant does not dispute this discussion by the PCRA court. The court
weighed the competing testimony and found Trial Counsel credible; Appellant
does not address why this Court should reject this credibility finding. See
Flor, 259 A.3d at 910 (PCRA court’s credibility determinations should be
provided great deference by reviewing courts). Furthermore, the court’s
finding is supported by the record. On appeal, Appellant ignores his own on-
the-record statement at the pre-trial hearing — that, when asked by the trial
court his reasons for foregoing a proposed continuance, Appellant affirmed he
“want[ed] to get it out of the way.” See N.T., 8/24/18, at 40. Finally, we
emphasize Appellant has not explained what any particular document in
Deputy Chief Baer’s files stated, nor why they would have affected the
outcome of his trial. As Appellant has not established his underlying claim has
arguable merit, nor that he was prejudiced, we agree with the PCRA court that
no relief is due. See Flor, 259 A.3d at 902.
X. Trial Counsel’s Alleged Ineffectiveness for
Not Presenting Evidence of Appellant’s Financial Status
We address together Appellant’s next two issues. First, he alleges the
PCRA court erred in denying relief on his claim that Trial Counsel was
ineffective for not presenting evidence of his financial situation. Appellant’s
Brief at 31. He claims such evidence would have “completely undermine[d]
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the Commonwealth’s theory of motive[,]” which was that he started the fire
to collect insurance proceeds. Id. at 31-32 (emphasis omitted). Appellant
further claims the evidence would have corroborated his own trial testimony,
that he was not suffering any financial troubles. Id. at 33. Appellant also
points out his financial files were on his computer, which was in the
Commonwealth’s possession. Id. at 33-34.
Next, Appellant contends the PCRA court erred in finding he has
consistently failed to present any particular evidence of his financial history.
Appellant’s Brief at 28. In support, he claims that at the PCRA hearing, the
parties stipulated to the following: (1) in 2014, his net income as “around”
$200,000; and (2) in 2015, his income was between $100,000 and $200,000.
Id. at 29-30, citing N.T. PCRA, 8/24/21, at 4-8. No relief is due.
First, we disagree with Appellant’s summation that the parties stipulated
to the amount of his income in 2014 and 2015. In selectively quoting the
PCRA hearing transcript, Appellant omits that what the parties stipulated to
was what Appellant would testify were the amounts of his prior income. See
Appellant’s Brief at 29-30; N.T., 8/24/21, at 6, 8 (trial court asking, “Can we
stipulate that [those 2014 and 2015 amounts] is what [Appellant’s] testimony
would be, based on his bank statements and his recollection[?,]” and the
Commonwealth responding, “I have no way of refuting that, Judge. . . . I
have never seen the bank records[,]” but ultimately agreeing to this
stipulation).
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Next, we observe, similarly to our above disposition, that on appeal
Appellant has largely ignored the PCRA court’s extensive discussion. The
PCRA court found Appellant has “been unable to clearly define his claim,” as
he has yet to establish clearly just what his financial status was. PCRA Ct.
Op. at 30. The court discussed the following: “throughout this litigation,
[Appellant] has presented conflicting, confusing, and contradictory testimony
regarding . . . his financial status.” Id. at 29. Prior to trial, Appellant did not
provide any documentation of his income or finances to Trial Counsel — only
proof of debts and obligations — and to date, he still has not presented any
tax returns, bank statements, or documents from eBay which would support
his claim that he sold items for profit. Id. at 31-32, 34.
Furthermore, the PCRA court considered that at trial, Appellant was
given the opportunity on cross-examination to discuss his employment
through “amusement rides inspections, expert witness work and buying and
selling all sorts of surplus[,]” and resultant income in 2014, 2015, and 2016.
PCRA Ct. Op. at 36, citing N.T. Trial Vol. II, 9/5/18, at 180-82. However,
Appellant gave “generalities and double talk about his financial status, without
any detail [or] numbers[,]” and instead “remained steadfast to his strategy to
obfuscate the status of his financial condition and his personal estate.” PCRA
Ct. Op. at 36-37.
Additionally, the PCRA court found Trial Counsel had a reasonable basis
for various trial strategies. See Chmiel, 30 A.3d at 1127-28. For example,
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while Appellant continues to refer to financial documents on his computer,
seized by the law enforcement, Trial Counsel explained that Appellant had
informed him those records would have exposed Appellant to other crimes.
Id. at 33-34, citing N.T., 8/24/21, at 51-52. Due to this concern, Trial Counsel
elected not to pursue recovery of the financial records from Appellant’s
computer. Additionally, Appellant had indicated his desire to testify about his
pre-fire “purchases of ‘high quality’ appliances and [a] several thousand[s]
dollars[-]playground for his son,” which would ostensibly establish Appellant’s
“access to funds and having lots of money.” PCRA Ct. Op. at 33, citing N.T.,
8/24/21, at 17. However, Trial Counsel believed this “testimony would have
been easily negated by” evidence that Appellant incurred a $25,000 tax lien
in 2014 by the IRS. PCRA Ct. Op. at 33. The PCRA court found Trial Counsel’s
testimony was credible and his trial “strategy appeared both reasonable and
professional, given the hand he was dealt.” Id. at 37.
Again, Appellant does not address any of this detailed discussion by the
PCRA court, aside from inaccurately claiming the parties stipulated to the
amount of his income in 2014 and 2015. Additionally, even if the PCRA court
had accepted Appellant’s income figures as credible, the broad range of a
$100,000 to $200,000 income, given for 2015, supports the court’s finding
that Appellant has consistently given “generalities and double talk about his
financial status[.]” See N.T., 8/24/21, at 5; PCRA Ct. Op. at 37. Finally,
Appellant does not explain why his entire financial situation should be
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determined solely on the basis of income. We defer to the credibility findings
of the PCRA court, and we agree with its conclusions. See Flor, 259 A.3d at
910. Accordingly, no relief is due.
XI. Trial Counsel’s Alleged Ineffectiveness for
Not Presenting Pre-Fire Photos of House Renovations
Next, Appellant argues the PCRA court erred in denying relief on his
claim that Trial Counsel was ineffective for not introducing photos showing the
state of the house before and during renovations. Appellant claims these
photos would have supported his claim that the holes in the second and third
floor ceilings were cut, more than one year before the fire, in order to remove
piping. Appellant’s Brief at 35-36. The photos would have thus also
controverted the Commonwealth’s theory that Appellant made the holes to
accelerate a fire, with the hope that after the fire, the holes would not be
visible or recognizable. Id. at 36-37. Appellant argues that in finding the
photos would have been merely cumulative pursuant to Commonwealth v.
Small, 189 A.3d 961 (Pa. Super. 2018), the PCRA court applied the wrong
legal standard. Id. at 37. Appellant maintains the issue in Small was after-
discovered evidence, whereas here, he was not arguing new evidence was
uncovered post-trial, but rather that Trial Counsel was ineffective to present
already-existing evidence. Id. We determine no relief is due.
The PCRA court set forth several reasons for denying relief. First, it
considered that Appellant presented undated photos at the PCRA hearing, but
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testified they were taken in June or July of 2014, approximately one year
before the May 2015 fire. PCRA Ct. Op. at 38, citing N.T., 8/24/21, at 79.
“[M]any of the photos depict plaster on the walls, artwork hanging on one
wall[, while] other pictures seemingly depict rooms . . . in a dated or rundown
condition, but do not seem to be gutted or otherwise disassembled.” PCRA
Ct. Op. at 38-39. As Appellant’s own trial testimony was that he performed
“significant renovations in 2015,” the court credited the Commonwealth’s
argument that the PCRA hearing photographs were not relevant, because they
did not depict the condition of the home at the time of the fire. Id. at 40.
Instead, the court found, the photographs presented by the Commonwealth
at trial, taken immediately after the fire, “depicted the extensive renovations
undertaken by” Appellant. Id. Finally, the court found the photographs would
have been merely cumulative of Appellant’s trial testimony as to why the holes
were cut. Id. at 39. We agree.
In Flor — a case that did not involve a claim of after-discovered
evidence, our Supreme Court “decline[d] to deem counsel ineffective for not
electing to call his own witness to establish an undisputed fact of which the
jury was already informed by a number of witnesses.” Flor, 259 A.3d at 925.
We thus determine the PCRA court’s denial of relief, on the ground any
photographs would be merely cumulative of Appellant’s trial testimony, was
reasonable. See id. Additionally, Appellant does not address the court’s
reasoning, that his photographs, purportedly taken one year before the fire,
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would not show the state of renovations at the time of the fire. Accordingly,
Appellant has not established he was prejudiced, and no relief is due. See
Flor, 259 A.3d at 902.
XII. Trial Counsel’s Alleged Ineffectiveness for
Not Rebutting the Testimony of Detective Beebe
In his final issue, Appellant avers the PCRA court erred in rejecting his
claim that Trial Counsel was ineffective for not rebutting testimony by
Bethlehem Police Detective Christopher Beebe, which “was impermissible for
a lay witness.” Appellant’s Brief at 39. Specifically, Appellant cites Detective
Beebe’s testimony that: (1) the gas can would have expanded if the cap were
on during the fire; (2) the alarm system would have tripped if there were a
power surge or other electrical problem; (3) “he did not see kinks, melting or
burning in wire or cord box [sic]” and thus the fire was likely not caused by
an electrical issue; and (4) Appellant was agitated and had asked the detective
why he “was trying to accuse him of setting his house on fire[.]” Id. at 39.
Appellant complains that Trial Counsel failed to remedy or explain any of these
statements during his — Appellant’s — own testimony. Id. Appellant
concedes that Detective Beebe’s testimony, when “[c]onsidered in
isolation . . . may appear harmless[,]” but points out the PCRA court itself
“seemingly concedes that counsel’s stewardship was somewhat
problematic[.]” Id. at 40. Nevertheless, Appellant concludes the PCRA court
erred in concluding he was not harmed by this testimony. Id. We disagree.
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The PCRA court found Detective Beebe’s testimony was merely
cumulative of, and consistent with, the opinions and findings of the
Commonwealth’s three experts. PCRA Ct. Op. at 43. The court thus reasoned
that Appellant was not prejudiced. Pursuant to Flor, we agree. See Chmiel,
30 A.3d at 1127-28; Flor, 259 A.3d at 925.
Furthermore, Appellant ignores additional reasoning by the PCRA court.
First, the court observed this ineffectiveness claim “apparently arises from, or
is primarily based upon, the criticisms of Detective Beebe contained in Mr.
Lentini’s report.” See PCRA Ct. Op. at 43. However, Lentini’s report was not
created until the PCRA proceedings, and thus not available to Trial Counsel at
the time of trial. Id. Additionally, the PCRA court found Beebe’s observations
were “at best . . . tangential” to the issues of the origin of the fire and whether
the fire was intentionally set. Id. at 44. Appellant does not present any
argument why these findings are in error. See Flor, 259 A.3d at 910. We
conclude no relief is due.
XIII. Conclusion
In sum, we conclude Appellant’s first two issues are waived, and that
the PCRA court properly denied relief on his multiple claims of Trial Counsel’s
ineffective assistance. We therefore affirm the order denying his PCRA
petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 1/24/2023
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